The black case containing the controlled substances was located on the top of the other objects in the driver’s door pocket, including a package of Newport cigarettes. Moreover, when Lieutenant Wheeler made initial contact with Mr. Troche, he was smoking a cigarette. The only cigarettes found in the search of the vehicle and the search of Mr. Troche’s person incident to arrest were Newport cigarettes.
State v. Trouche
2023 – Ohio – 565
Third District Appellate Court
Marion County, Ohio
February 27, 2023
On January 13, 2021, the Marion County Grand Jury indicted Mr. Robert Troche on two counts: Count One of possession of fentanyl in violation of R.C. 2925.11(A), (C)(11), a fifth-degree felony, and Count Two of aggravated possession of drugs in violation of R.C. 2925.11(A), (C)(1), a fifth-degree felony. Mr. Troche appeared for arraignment on March 22, 2021 and pleaded not guilty to the counts in the indictment. The matter eventually proceeded to a jury trial commencing on February 15, 2022.
At trial, Lieutenant Richard Wheeler, a third-shift supervisor and canine handler with the Marion City Police Department, testified that while on patrol on July 11, 2020, he observed a stopped vehicle facing eastbound at the intersection of East Mark Street and North Greenwood. Lieutenant Wheeler testified that as he passed the vehicle, he ran the license plate through ILINCS, a law-enforcement database, and learned that the vehicle was registered to Susan Hardgrove, a female from Delaware, Ohio. According to Lieutenant Wheeler, the ILINCS system allows law enforcement officers to add notes to vehicles in the system regarding previous drivers, occupants, and safety
concerns. Lieutenant Wheeler observed a note associated with the vehicle listing Mr. Robert Troche as a previous occupant. When Lieutenant Wheeler ran the information associated with Mr. Troche through ILINCS, he was able to view Mr. Troche’s BMV photograph. Lieutenant Wheeler also learned that Mr. Troche’s driver’s license was suspended and the Marion City Police Department had an active warrant for his arrest. When Lieutenant Wheeler passed the vehicle, he observed the male driver and noted that he appeared to be the person depicted in Mr. Troche’s BMV photograph.
Lieutenant Wheeler testified that, in the process of turning around his police cruiser, he briefly lost sight of the vehicle. However, shortly thereafter, he observed the vehicle in the driveway of 525 Tyler Street in Marion, Ohio. At the time Lieutenant Wheeler made contact with Mr. Troche, he was outside the vehicle. Lieutenant Wheeler approached Mr. Troche by calling out his name; however, Mr. Troche repeatedly denied that it was his name. However, Lieutenant Wheeler stated that he “confirmed” the individual he was talking to was Mr. Troche through the BMV photograph and an assisting officer who identified Mr. Troche from a previous encounter.
Mr. Trouche parked in the driveway of 525 Tyler Street in Marion, Ohio and denied his own identity. The events that followed led to his conviction and appeal.
Then, Lieutenant Wheeler placed Mr. Troche under arrest. At the time, Mr. Troche maintained that his name was not Robert Troche and alleged that the police were “harassing” him. So, Lieutenant Wheeler escorted Mr. Troche to his cruiser and showed him the BMV photograph visible on the computer screen. Lieutenant Wheeler recalled that he asked Mr. Troche, “Is that you?” Mr. Troche did not give a response.
Lieutenant Wheeler explained that pursuant to Marion Police Department policy, officers are not permitted to leave a vehicle parked on private property without the consent of the property owner or manager. Lieutenant Wheeler stated that he knocked on the door of 525 Tyler Street in an attempt to make contact with the owners, but there was no answer. According to Lieutenant Wheeler, if officers do not receive permission to leave a vehicle on private property, the officer’s options are to tow the vehicle off the property or allow the vehicle’s owner to move the vehicle from the property, if it can be accomplished in a timely fashion. Lieutenant Wheeler then called Ms. Hardgrove, who confirmed that her son, Mr. Troche, had her consent to use the vehicle. Ms. Hardgrove, who was located in Delaware, Ohio, informed Lieutenant Wheeler that she would immediately travel to 525 Tyler Street to retrieve her vehicle.
While Lieutenant Wheeler waited for Ms. Hardgrove to arrive on the scene, he deployed his canine partner to conduct an exterior vehicle sniff to detect the odor of narcotics and the canine gave a positive alert. Then, Lieutenant Wheeler stated that he searched the vehicle. During the search, he located a black case in the driver’s door pocket. Lieutenant Wheeler identified the black case he removed from the vehicle. Inside the case, Lieutenant Wheeler described locating two baggies that contained suspected narcotics. Lieutenant Wheeler identified State’s Exhibit 2 as the suspected narcotics he removed from the black case.
Lieutenant Wheeler’s body camera footage of the incident on July 11, 2020 was played for the jury. The body camera footage was consistent with Lieutenant Wheeler’s testimony regarding the events of July 11, 2020. Additionally, the body camera footage depicted Lieutenant Wheeler finding a bag of marijuana in the center console of the vehicle. In the body camera footage, Mr. Troche admitted the marijuana belonged to him and explained that he has a medical marijuana card.
On cross-examination, Lieutenant Wheeler admitted that he did not witness Mr. Troche make furtive movements. Likewise, he did not observe Mr. Troche “scrambl[e]” or throw any objects away from the vehicle. Lieutenant Wheeler also listed other items he located in the driver’s door pocket including a coin purse and a bottle of “female cologne.” Lieutenant Wheeler acknowledged that he did not know when the black case containing the suspected drugs was brought into the vehicle and did not observe anyone place it there. He also conceded that he did not know how long the black case had been in the vehicle. Lieutenant Wheeler further stated that he could not testify whether Mr. Troche knew that the case containing the suspected drugs was inside the vehicle.
On redirect examination, Lieutenant Wheeler testified that Mr. Troche was smoking a cigarette when Lieutenant Wheeler first approached him. Lieutenant Wheeler described finding two packages of Newport cigarettes inside the vehicle. One package of Newport cigarettes was located in the driver’s door pocket. Additionally, according to Lieutenant Wheeler, when he located the black case in the driver’s door pocket, the case was sitting on the top of the other items located therein, including the Newport cigarettes. Lieutenant Wheeler confirmed that officers did not locate cigarettes on Mr. Troche’s person when he was searched incident to his arrest. Additionally, Lieutenant Wheeler verified Mr. Troche was inside the vehicle at the same time as the black case containing the suspected drugs was inside the vehicle.
During recross examination, Lieutenant Wheeler stated the pack of Newport cigarettes located in the driver’s door pocket appeared to be sealed. However, the second package of Newport cigarettes, which was located next to the marijuana in the center console, was open. Lieutenant Wheeler confirmed that Mr. Troche acknowledged that the marijuana was his, but that he claimed to have a medical marijuana card. Lieutenant Wheeler testified that although Mr. Troche took responsibility for the marijuana, he denied the contents of the black case belonged to him.
At the close of the State’s evidence, Mr. Troche moved for a judgment of acquittal under Crim.R. 29. Mr. Troche argued generally that the State failed to meet its burden of proof with respect to all elements of the offenses. Mr. Troche specifically argued the State failed to establish that he knowingly possessed the drugs. The trial court overruled Mr. Troche’s Crim.R. 29 motion, after which Mr. Troche rested without presenting any evidence.
Jury Verdict
The jury found Mr. Troche guilty on both counts as charged in the indictment. The trial court accepted the jury’s verdicts and continued Mr. Troche’s sentencing pending completion of a presentence investigation report.
Sentencing
At the sentencing hearing on March 7, 2022, the trial court sentenced Mr. Troche to nine months in prison on Count One and nine months in prison on Count Two. The court ordered the sentences to run consecutively for an aggregate prison term of 18 months. On March 9, 2022, the trial court filed its judgment entry of sentence.
Appeal
Constructive Possession
Possession of drugs under O.R.C. §2925.11(A) provides, “No person shall knowingly obtain, possess, or use a controlled substance or a controlled substance analog.” Count One relates to the heroin and fentanyl combination recovered from the vehicle and Count Two relates to the methamphetamine recovered from the vehicle.
“‘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).
On appeal, Mr. Troche argues only that there is insufficient evidence that he had knowledge of the drugs found in the black case. He challenges the State’s evidence that he knowingly possessed the drugs located in the black case in light of the evidence that the vehicle was registered to his mother. Mr. Troche asserts that there was insufficient evidence to establish that he possessed the drugs in the black case because constructive possession requires proof that he was not only able to exercise dominion and control over the items, but also that he was conscious of the presence of the items. Because knowledge is the only element Mr. Troche challenges on appeal, our review is limited to determining whether sufficient evidence was presented that Mr. Troche had knowledge of the drugs found in the black case of the driver’s door pocket.
The Ohio Revised Code defines “knowingly” as follows:
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).
“Possession of drugs can be either actual or constructive.” State v. Bustamante, , 2013-Ohio-4975, “A person has ‘actual possession’ of an item if the item is within his immediate physical possession.” State v. Williams, 2004-Ohio- 1130. “A person has ‘constructive possession’ if he is able to exercise dominion and control over an item, even if the individual does not have immediate physical possession of it.” Bustamante at ¶ 25. “For constructive possession to exist, ‘[i]t must be shown that the person was conscious of the presence of the object.’” Id., quoting State v. Hankerson, 70 Ohio St.2d 87, 91 (1982).
To summarize the evidence the State presented related to Mr. Troche’s knowledge of the drugs contained within the black case, Mr. Troche was the driver and sole occupant of the vehicle. Lieutenant Wheeler contacted Mr. Troche’s mother, the registered owner of the vehicle, who confirmed that Mr. Troche had her permission to use the vehicle. Lieutenant Wheeler found the drugs in a black zippered case located in the driver’s door pocket, a location easily accessible to the driver. The black case containing the controlled substances was located on the top of the other objects in the driver’s door pocket, including a package of Newport cigarettes. Moreover, when Lieutenant Wheeler made initial contact with Mr. Troche, he was smoking a cigarette. The only cigarettes found in the search of the vehicle and the search of Mr. Troche’s person incident to arrest were Newport cigarettes.
There are numerous inferences that can be made from the State’s evidence that Mr. Troche was aware of the presence of the contents of the zippered black case. For example, the fact that the black case was on top of the other items contained inside the driver’s door pocket, including Newport cigarettes, leads to an inference that Mr. Troche was aware of the presence of the black case and the controlled substances that it contained.
Mr. Troche contends that his acknowledgement of ownership of the cigarettes and marijuana contained in the center console, combined with his denial of knowledge of the items contained within the black case, leads to an inference that he was not aware of the black case or its contents … Nevertheless, Mr. Troche’s assertion that the drugs in the black case did not belong to him is inconsequential in light of the evidence that Mr. Troche had dominion and control over those items. State v. Frye, 2018-Ohio-894.
Furthermore, even assuming Ms. Hardgrove also had access to the drugs in the black case, as Mr. Troche implies, does not vitiate Mr. Troche’s conviction since Mr. Troche and Hardgrove could have had joint possession and control of the drugs.
Holding
Thus, when examining the evidence in the light most favorable to the State, we find that a rational trier of fact could have found that Mr. Troche was aware of the drugs inside the black case.
Information for this article was obtained from State v. Troche, 2023 – Ohio – 565.
This case was issued by the Third District Appellate Court and is binding in the following Ohio Counties: Allen, Auglaize, Crawford, Defiance, Hancock, Hardin, Henry, Logan, Marion, Mercer, Paulding, Putnam, Seneca, Shelby, Union, Van Wert and Wyandot.
Lessons Learned:
- In 1982 the Supreme Court of Ohio established the two-part test to establish the Constructive Possession Doctrine in Ohio: 1) When and individual knowingly exercise dominion and control over an object, even though that object may not be within his immediate physical control. 2) The defendant was conscious of the object’s presence. State v. Hankerson, 70 Ohio St.2d 87 (1982)
- In this case Mr. Trouche denied that he was aware that of the black case in the door pocket. However, when Lt. Wheeler made his initial contact with Mr. Trouche he was smoking a Newport cigarette. There was an open pack of Newport cigarettes in the center console and an unopened Newport pack of cigarettes in the same door pocket as the black case. Both the trial court and the Third District Appellate Court determined that was enough evidence that Mr. Trouche ‘knowingly possessed’ the fentanyl that was in the black case. Most often law enforcement will be challenged with the second prong of Hankerson’s test – specifically proving that the suspect/defendant was consciously aware of the object’s presence. Here, Lt. Wheeler did an outstanding work to connect the Newport cigarette pack to Mr. Trouche!
- Wheeler should be highly commended for his tenacity to balance both department policy, canine law and the Constructive Possession Doctrine while in the driveway at 525 Tyler Street in Marion, Ohio!The unidentified officer who placed additional information in the database that Lt. Wheeler accessed should also be commended. That unidentified officer took the time to place notes in the file that was most instructive for Lt. Wheeler!
Does your agency train on the Constructive Possession Doctrine?
Contact me at https://www.objectivelyreasonable.com/contact/
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and Objectively Reasonable!