[W]e conclude that the jury’s finding that Walker possessed 46.685 grams of heroin is supported by the sufficiency of the evidence.
State v. Walker
2022 – Ohio – 4489
Fourth District Appellate Court
Ross County, Ohio
December 16, 2021
On Monday January 22, 2018, the Chillicothe Police Department was surveilling the residence at 354 East Second Street, in Chillicothe, Ohio, after receiving several complaints of drug activity. Sergeant John Silvey of The Ohio State Highway Patrol assisted the Chillicothe Police Department with the surveillance and had a clear view of the front door but not the back door. Officer Samantha Taczak with the Chillicothe Police Department, then narcotics detective, was also on surveillance duty that day and had a view of the front door only. During surveillance, they observed heavy foot traffic of people entering the residence, stay a short amount of time, then leave.
Mr. Torrence Walker and Ms. Enddasey Johnson co-occupied a small bathroom on the second floor of 354 East Second Street, in Chillicothe, Ohio, when the SWAT team served a search warrant. Could Mr. Walker constructively possess the heroin nestled atop the unfleshed fecal matter?
Based on the officers’ observations and experience with drug trafficking, the officers determined that drug trafficking was in progress at the residence. Their suspicion was corroborated by a confidential informant who was inside the residence that day and saw Mr. Nathaniel Powe with a softball size of heroin in a bag and approximately the same amount of crack cocaine.
On the same day as the surveillance was conducted and within three hours from contact with the confidential informant, Officer Taczak applied for a search warrant. The search warrant was granted that same day. After the search warrant was obtained, the Chillicothe SWAT Team made the initial entry and cleared the home of any person who was inside. The SWAT Team placed everyone found inside the house on the porch and placed identifiers on them. The SWAT Team removed Mr. Torrence Walker and Ms. Enddasey Johnson from the upstairs bathroom.
Sgt. Silvey assisted with the search of the residence after the SWAT Team cleared the house. In the only bathroom upstairs, inside the toilet, Sgt. Silvey located a clear bag containing a gray powder. There was no running water in the toilet, so the clear bag was placed on top of fecal matter that was already in the toilet. In order to flush narcotics, the prerequisite is that water must be running. Without running water to flush, Mr. Walker was given the opportunity for a Motion to Suppress. Sgt. Silvey was also the officer who searched Walker and found two cellphones, his ID, and approximately $1300 in cash on him. Mr. Walker might have avoided prosecution if he spent some of cell phone money on the water bill.
The gray powder located inside the clear Ziplock bag was tested and weighed. The functionality of Ziplock bags cannot be understated when the bag rests upon fecal matter as the bag inhibited the fecal matter from intruding. The unflushed Ziplock bag contained 46.685 grams of heroin. On November 1, 2019, Mr. Walker was indicted on two felony offenses: possession of controlled substance in an amount that exceeds ten grams but less than fifty grams, and tampering with evidence. Mr. Walker pleaded not guilty and the matter proceeded to a one-day jury trial. The state presented the testimony of four witnesses including Sgt. Silvey and Officer Taczak.
At the conclusion of the state’s case-in-chief, Mr. Walker orally moved the trial court for dismissal of the charges pursuant to Criminal Rule 29 arguing insufficient evidence establishing he possessed the drugs. The trial court overruled the motion finding:
Mr. Walker did not present any evidence and rested after the trial court denied his motion. The jury found Mr. Walker guilty of possession of heroin with an amount greater than ten grams but less than fifty grams, and not guilty of tampering with evidence. Prior to sentencing, Mr. Walker submitted a motion for judgment of acquittal renewing his claim that the state presented insufficient evidence he possessed the heroin. The trial court again denied his motion but indicated it was a “very close [and smelly] call.” Mr. Walker was then sentenced to a mandatory prison term of three years.
Mr. Walker appealed to the Fourth District Appellate Court. He claimed that he did not ‘possess’ the Ziplock bag of forty-six grams of heroin. His argument focused on the location of the heroin, nestled atop of the unflushed fecal matter in the toilet and that he co-occupied the small bathroom with Ms. Johnson.
Mr. Walker had two cell phones on his person when he was arrested. The Fourth District Court opined; “Although this court has recognized that having a cell phone is ubiquitous and therefore possession of one cell phone is not ipso facto proof that it was used in drug trafficking, the same cannot be said about having two cell phones.”.
Ultimately the court upheld Mr. Walker’s conviction; “Viewing all of the evidence in a light most favorable to the state, we conclude that the jury’s finding that Walker possessed 46.685 grams of heroin is supported by the sufficiency of the evidence. Accordingly, Walker’s first assignment of error is overruled.”.
Mr. Walker was sentenced to three years in the Ohio Department of Rehabilitation and Corrections.
Information for this article was obtained from State v. Walker, 2021 – Ohio – 4489.
This case was issued by the Fourth District Appellate Court and is binding in the following Ohio Counties: Adams, Athens, Gallia, Highland, Hocking, Jackson, Lawrence, Meigs, Pickaway, Pike, Ross, Scioto, Vinton and Washington.
Lessons Learned:
- Possession can either be Actual or Constructive. Actual Possession is where a suspect is in control and dominion of the object. This is often where suspects often try to distance themselves claiming that the jacket, pants or bag which he is wearing or holding is not his own. One such case made it to the U.S. Supreme Court, Wyoming v. Houghton, 525 U.S. 295 (1999) see Not my Bag!” Defense fails and expands the Motor Vehicle Exception. But in this case Mr. Walker claimed he was not in Constructive Possession when Ms. Johnson and he were making a feeble attempt to hide from the SWAT team in the small bathroom. The Fourth District Appellate Court evaluated constructive possession by reviewing established case law. “Constructive possession exists when an individual knowingly exercises dominion and control over an object, even though that object may not be within his immediate physical possession.” State v. Hankerson, 70 Ohio St.2d 87, (1982). The court further explained “Constructive possession exists when an individual knowingly exercises dominion and control over an object, even though that object may not be within his immediate physical possession.” State v. Hankerson, 70 Ohio St.2d 87, (1982).
- Law enforcement should be cautious in Constructive Possession cases because simple proximity to contraband will not always be “possessed” by the suspect. “A defendant’s mere presence in an area where drugs are located is insufficient to demonstrate that the defendant constructively possessed the drugs.” State v. Cola, 77 Ohio App.3d 448, 450, (11th Dist.1991). What was a determining factor in this case is that baggie of heroin was in Plain View when he was detained in the bathroom. The Fourth District Appellate Court reviewed a case on Constructive Possession when the narcotics are in Plain View. One of the factors that is applicable here is whether the drugs were in plain view. “[C]onstructive possession may be established when the defendant occupies the premises with others, the drugs are found in the defendant’s living area, and the drugs are in plain view throughout the apartment.” State v. Fugate, 4th Dist. Washington No. 97 CA 2546, 1998 WL 729221, *8 (October 2, 1998), citing State v. Boyd, 63 Ohio App.3d 790, 796-797, (8th Dist.1989).”. It is unclear if the toilet lid was operable or even attached at the moment SWAT team discovered the co-conspirators in the bathroom. If the toilet lid was down and covered the fecal matter and forty-six grams of heroin, it may have provided a defense to the Plain View and Constructive Possession analysis.
- In Constructive Possession cases both suspects can also be found to have co-possessed the contraband. The Fourth District Appellate Court opined “Moreover, simply because Ms. Johnson was also located in the small bathroom does not command reversal of Walker’s conviction. As we previously held, “two or more persons may have joint constructive possession of the same object.” State v. Brown, 4th Dist. Athens No. 09CA3, 2009-Ohio-5390.
- OSHP Sgt. John Silvey, Chillicothe Officer Samantha Taczak and the team of investigators should be highly commended on this arrest and conviction! The team took the time to obtain search warrant rather than attempting to use an exigent circumstance to enter 354 East Second Street. Whenever law enforcement can take the time to obtain a warrant, either arrest or search, the Fourth Amendment is provided as a shield against most successful Motions to Suppress.
Does your agency train on the Constructive Possession?
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and Objectively Reasonable!