Koon v. Warden Madison Correctional Institution
ORDER ADOPTING REPORT AND RECOMMENDATIONS; OVERRULING Petitioner's Objection. This action is DISMISSED. Signed by Judge Algenon L. Marbley on 6/9/2017. (cw)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
BRIAN C. KOON,
CASE NO. 2:16-CV-00950
JUDGE ALGENON L. MARBLEY
Magistrate Judge Kimberly A. Jolson
OPINION AND ORDER
On March 24, 2017, the Magistrate Judge issued a Report and Recommendation
recommending that the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
be dismissed. (Doc. 9.) Petitioner has filed an Objection to the Magistrate Judge’s Report and
Recommendation. (Doc. 10.) Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de
novo review. For the reasons that follow, Petitioner’s Objection (Doc. 10) is OVERRULED.
The Report and Recommendation (Doc. 9) is ADOPTED and AFFIRMED. This action is
Petitioner challenges his convictions after a jury trial in the Delaware County Court of
Common Pleas on possession of heroin and endangering children. He asserts that the evidence is
constitutionally insufficient to sustain his conviction on possession of heroin and that it is against
the manifest weight of the evidence (claims one and two); that the trial court improperly denied
his request for a new trial based on improper admission of testimony by Trooper Brooks (claim
three); and that the trial court committed reversible error when it denied his motion for a new
trial and motion for judgment of acquittal (claim four). The Magistrate Judge recommended
dismissal of Petitioner’s claims on the merits. Petitioner objects to the Magistrate Judge’s
recommendation of dismissal of his claim that the evidence was constitutionally insufficient to
sustain his conviction on possession of heroin.
Petitioner again argues that the State failed to establish that he had actual or constructive
possession of heroin found at the scene of the crash, particularly since two persons from another
vehicle assisted him in collecting his personal effects. Petitioner maintains that the evidence
could equally indicate that the occupants of the other vehicle threw the drugs and other
paraphernalia into the accident scene when they saw police arrive, or that these items were there
prior to the time of the accident. Additionally, Petitioner complains that Officer Brooks testified
that he found 19.452 grams of heroin, yet the jury found him guilty of only 10 grams of heroin.
Petitioner’s arguments are not persuasive. As noted by the state appellate court,
[t]he State introduced evidence that Koon had been a passenger in
a vehicle that had rolled over several times and discharged many
items from the inside. State troopers who arrived at the scene
found a “loaded” syringe with .403 grams of heroin, additional
heroin weighing 19.452 grams, and other evidence of drug use
located within the “debris field” left by the vehicle. They
witnessed Koon diligently searching the field apparently for items
thrown from the vehicle to the exclusion of attending to his injured
12-year-old son who was lying on the pavement screaming in pain.
Koon acknowledged his ownership of the items that were lying in
the debris field by telling Trooper Brooks that “his whole life was
ruined and scattered on the ground.” On Koon’s shirt the troopers
also noticed a sticky brown substance which he claimed was mud
or dirt from the accident. But Trooper Dennis testified that he
believed that based on his experience, the spot was liquefied
State v. Koon, No. 15CA17, 2016 WL 527289, at *1 (Ohio App. 4th Dist. Feb. 3, 2016). This
Court agrees that, when viewing these facts in the light most favorable to the prosecution, see
Jackson v. Virginia, 443 U.S. 307, 319 (1979), the evidence was constitutionally sufficient to
sustain Petitioner’s conviction on 10 grams of heroin. The record therefore fails to reflect that
Petitioner is entitled to relief, particularly under the heightened standard of review requiring a
“double layer” of deference to state court determinations on the sufficiency of evidence. See
Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009); White v. Steele, 602 F.3d 707, 710 (6th Cir.
For these reasons and for the reasons as further detailed in the Magistrate Judge’s Report
and Recommendation, Petitioner’s Objection (Doc. 10) is OVERRULED. The Report and
Recommendation (Doc. 9) is ADOPTED and AFFIRMED.
This action is hereby
IT IS SO ORDERED.
s/Algenon L. Marbley
ALGENON L. MARBLEY
United States District Judge
DATED: June 9, 2017
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