Mr. Scott admitted to using the drugs, the drugs were stored in his container, and the drugs were found in the vehicle’s center console between Mr. Combs and Mr. Scott, readily accessible to both while they were in Lake County … Recognizing that “‘[J]oint possession exists when two or more persons together have the ability to control an object exclusive of others,’” the appellant and the passenger were found to jointly possess the drugs.
State v. Kessler Scott
2022 – Ohio – 4054
Eleventh District Appellate Court
Lake County, Ohio
November 14, 2022
In late summer 2021, a deputy from the Lake County Sheriff’s Office was on patrol when he observed a vehicle with an expired registration tag. He initiated a traffic stop, and as the 2016 Chrysler pulled over and shifted into park, the passenger, later identified as Mr. Kessler Scott, exited the vehicle and fled. The deputy reported to dispatch that Mr. Kessler Scott was running westbound while he detained Mr. Andrew Combs, the driver of the vehicle and Mr. Kessler Scott’s long-time acquaintance and alleged accomplice.
At least four officers attempted to find Mr. Kessler Scott, conducting a search that spanned the surrounding area, including several barns, a house, and a wooded area, as well as setting up a perimeter. After over an hour of searching, however, the officers ended the search and returned to the vehicle.
Mr. Combs identified Mr. Scott for the officers and gave them permission to search his grandmother’s vehicle. In the center console, the officers found a white box with two envelopes inside, which Mr. Combs disclosed contained fentanyl. A forensic analyst from the Lake County Crime Laboratory later confirmed the white powder in the envelopes was fentanyl.
Following a tip from Facebook, the officers were able to locate Mr. Scott at Mr. Combs’ residence the next day. He was living in the garage of Mr. Combs’ home, which Mr. Combs shared with his grandmother. The officers found Mr. Kessler Scott inside a barn just south of the house, and he was placed under arrest for an outstanding warrant in an unrelated case.
During the police interview, Mr. Scott disclosed to the officers that he and Mr. Combs had driven to Cleveland to purchase the fentanyl. On their way home, they stopped to snort some of the drugs. Mr. Scott identified the drugs as belonging to Mr. Combs.
Ultimately, both Mr. Combs and Mr. Scott were charged in separate cases for possession of the drugs. Mr. Combs pleaded guilty in his case while Mr. Scott’s case was pending. Mr. Scott was charged with possession of a Schedule I controlled substance, fentanyl, in violation of R.C. 2925.11, a fifth-degree felony. He pleaded not guilty, and the case proceeded to a one-day jury trial.
The state introduced the testimony of Mr. Combs, two of the officers who were at the scene, one of whom conducted a police interview once Mr. Scott was taken into custody. A forensic analyst from the Lake County Crime Laboratory, as well as photographs of the drugs, the container, and an aerial map depicting the officer’s search for Mr. Scott after he fled Mr. Combs’ vehicle.
Mr. Combs testified that on the date of the incident, he and Mr. Scott drove to Cleveland where he purchased 1.2 grams of fentanyl, something they did “every morning.” They stored the drugs in Mr. Scott’s container. After snorting it on the side of the road, they purchased some crack. On their return to Lake County, they got “high” at Mr. Combs’ grandmother’s house, and decided to drive to the store, which is when the traffic stop occurred. Mr. Combs consented to a search of the vehicle because he thought Mr. Scott had taken all of the drugs with him when he fled. Mr. Combs admitted that he initially lied to the police when he told them that he picked up Mr. Scott on the side of the road. He was “scared” and, knowing that Mr. Scott had a warrant out for his arrest, did not want the officers to know that Mr. Scott was staying at his house.
As relevant to the instant appeal, the trial court overruled defense counsel’s Crim.R. 29 motion challenging the sufficiency of the evidence and the renewed Crim.R. 29 sufficiency of the evidence motion in which defense counsel argued that the state failed to meet its burden of proof.
The jury returned a verdict finding Mr. Scott guilty of possession of a fentanyl-related compound a Schedule I controlled substance, a fifth-degree felony, in violation of O.R.C. §2925.11. Several weeks later, at the sentencing hearing, the trial court sentenced Mr. Scott to two years of community control, which included 99 days in jail with 39 days of jail-time credit.
Mr. Scott appealed his conviction and claimed his conviction was not Supported by Sufficient Evidence.
Analysis
In his first assignment of error, Mr. Scott contends the evidence was insufficient to support his conviction for possession of a fentanyl-related compound because there was no evidence he had control over the drugs while he was in Lake County. Specifically, Mr. Scott contends there was insufficient evidence that he exerted constructive possession, i.e., dominion or control, over the drugs. Rather, the evidence reflected that his alleged accomplice, Mr. Combs, admitted that he purchased the fentanyl and shared it with Mr. Scott. Mr. Combs also admitted that he placed it in his grandmother’s vehicle.
Pursuant to O.R.C. §2925.11(A), “[N]o person shall knowingly obtain, possess, or use a controlled substance.” Further, “[A] person acts knowingly, regardless of purpose, when the person is aware that the person’s conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when the person is aware that such circumstances probably exist. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person subjectively believes that there is a high probability of its existence and fails to make inquiry or acts with a conscious purpose to avoid learning the fact.” O.R.C. §2901.22(B). “Possess” or “possession” means “having control over a thing or substance, but may not be inferred solely from mere access to the thing or substance through ownership or occupation of the premises upon which the thing or substance is found.” O.R.C. §2925.01(K).
“‘Actual possession exists when the circumstances indicate that an individual has or had an item within his immediate physical possession.’” State v. Kingsland, 2008-Ohio-4148,
“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).
For constructive possession to exist, the state must show that the defendant was conscious of the object’s presence. Hankerson at 91; Kingsland at ¶ 13. Both dominion and control and whether a person was conscious of the object’s presence may be established through circumstantial evidence. Brown at ¶ 19. “Moreover, two or more persons may have joint constructive possession of the same object.” Id.
As our review of the evidence reveals, the state introduced sufficient evidence from which a jury could find that Mr. Scott was in constructive possession of the drugs at issue. Mr. Scott admitted to using the drugs, the drugs were stored in his container, and the drugs were found in the vehicle’s center console between Mr. Combs and Mr. Scott, readily accessible to both while they were in Lake County. As the Eighth District explained in State v. Trammer, 8th Dist. Cuyahoga No. 85456, 2005-Ohio-3852, where the appellant made a similar argument that the evidence was insufficient because the state failed to prove the drugs belonged to him: “While mere presence in the vicinity of the item is insufficient to justify possession, ready availability of the item and close proximity to it support a finding of constructive possession.” Id. at ¶ 24. In that case, crack cocaine was found between the center console and the passenger’s seat, which the Eighth District determined was “obviously within control of the passenger” and the appellant (the driver). Id. at ¶ 25. Recognizing that “‘[J]oint possession exists when two or more persons together have the ability to control an object exclusive of others,’” the appellant and the passenger were found to jointly possess the drugs.
This is not a case where the drugs were simply in Mr. Scott’s vicinity or where he lacked knowledge that drugs were in the vehicle. Rather, there are multiple factors from which inferences can be drawn that the drugs were in his constructive, joint possession, i.e., both he and Mr. Combs admitted to using the drugs, the drugs were stored in his container, and the drugs were in close proximity to his person in the vehicle, readily available and in his vicinity.
Because we find there was sufficient evidence from which a jury could find, beyond a reasonable doubt, that Mr. Scott constructively and jointly possessed the fentanyl while he was in Lake County, his first assignment of error is overruled.
Information for this article was obtained from State v. Kessler Scott, 2022 – Ohio – 4054.
This case was issued by the Eleventh District Appellate Court and is binding in the following Ohio Counties: Ashtabula, Geauga, Lake, Portage and Trumbull.
Lessons Learned:
- The court in this case provides a substantive explanation and application of the Constructive Possession Doctrine. In 1982 the Supreme Court of Ohio held ““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). Additionally, the state must prove that the defendant was conscious of the object’s presence. In this case Mr. Scott’s co-conspirator testified that they had driven to Cleveland to purchase the fentanyl and consumed it together. Though redacted from this article, the court took some time to support the analysis and conclusion that Mr. Scott knew of the fentanyl because he immediately fled from the vehicle. Though headlong flight in and of itself does not rise to probable cause or guilt, it certainly provides additional factors for officers, jurors and judges to take into account.
- The second question that is instructive is whether both vehicle occupants can be charged and convicted with ‘possession’ if neither had actual possession. The court in this case and other courts in other cases, have determined that more than one person in ‘Constructive Possession’ of contraband can both be convicted of ‘possession’. As the Eighth District explained in State v. Trammer, 8th Dist. Cuyahoga No. 85456, 2005-Ohio-3852, where the appellant made a similar argument that the evidence was insufficient because the state failed to prove the drugs belonged to him: “While mere presence in the vicinity of the item is insufficient to justify possession, ready availability of the item and close proximity to it support a finding of constructive possession.” at ¶ 24. In that case, crack cocaine was found between the center console and the passenger’s seat, which the Eighth District determined was “obviously within control of the passenger” and the appellant (the driver). Id. at ¶ 25. Recognizing that “‘[J]oint possession exists when two or more persons together have the ability to control an object exclusive of others,’” the appellant and the passenger were found to jointly possess the drugs.
- The unidentified Lake County deputies in this case were highly professional. Though they could not find Mr. Scott immediately after he fled on foot, they were able to construct a solid case against both Mr. Scott and Mr. Combs. Well done Lake County Sheriff’s Department!
- For more on Constructive Possession see the following articles: Was Terrell’s Coming Out of the Closet Enough to Sustain His Felony Conviction?, Can a Passenger Constructively Possess a Cigarette Pack on the Floor of a Vehicle?, Did Henry, who was a Front Seat Passenger, Constructively Possess Fifty-Six Grams of Heroin Concealed in a Hidden Compartment in the Back Seat?, Did Torrence Constructively Possess the Forty Six Grams of Heroin Nestled Atop Unflushed Fecal Matter?, Did Josh Constructively Possess the Bag of Meth Under his Buttocks?, Can a Firearm Left in a Laundry Basket Nestled Under Dirty Clothes by a Teenager be Constructively Possessed by the Dad?, Why was Mickey’s Mouse Felonious?, Why was Ms. Batdorf’s Batman Bag Felonious?.
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