[D]espite Ms. Murr’s argument … that R.T. also had access to the drugs does not establish that the State failed to present sufficient evidence to prove that Ms. Murr possessed the drugs.

 

State v. Murr

2023 – Ohio – 1934

Ninth District Appellate Court

Lorain County

June 12, 2023

Caller stated the SUV Occupant was Using Drugs

On May 28, 2020, an officer from the Lorain Police Department responded to a call regarding suspected drug use in a residential area. The caller indicated that an SUV was parked in a driveway, and that it looked like the occupant was using drugs. The officer responded to the scene and pulled behind Ms. Angel Murr’s SUV. As soon as the officer exited his cruiser, Ms. Murr exited the driver’s side of her SUV, and R.T. exited the passenger’s side. The officer described Ms. Murr’s behavior as hyper and overwhelmed.

 

Fentanyl in Plain View 

Less than one minute later, a corporal from the Wellington Police Department arrived at the scene. The corporal observed what appeared to be drugs wrapped in cellophane in plain view on the passenger seat of Ms. Murr’s SUV. The officer testified that Ms. Murr admitted to purchasing drugs in Cleveland with R.T. earlier that day. The officer also testified that Ms. Murr claimed that the drugs were not hers, and that she denied ingesting any drugs that day.

The corporal secured the substance as evidence, which was later tested and confirmed as being .13 grams of a fentanyl-related compound. The corporal testified that Ms. Murr appeared to be under the influence of something, but he could not confirm whether Ms. Murr was under the influence of the drugs found in her SUV. The corporal and the officer placed Ms. Murr and R.T. under arrest and searched Ms. Murr’s SUV. They then discovered a syringe in the passenger-side cupholder of the center console.

Angel Danced as if No One was Looking OR it was the Effect of Fentanyl

The woman who owns and lives at the house where Ms. Murr parked her SUV testified at trial. She testified that she and her husband were having work done on their roof, and that their contractor asked if one of his workers (i.e., R.T.) could come later that evening to finish certain work. The homeowner testified that she and her husband acquiesced, and that the worker arrived in the evening with a woman (i.e., Ms. Murr). The homeowner testified that the woman had one shoe on and was dancing in the driveway, yet there was no music playing. The homeowner described the woman’s behavior as erratic and testified that her husband called their roofing contractor to tell him what was happening. The homeowner also testified that she called her daughter to tell her what was happening, and that her daughter was the person who called the police.

 

Guilty Verdict

The State rested and the defense did not present any witnesses. The jury found Ms. Murr guilty, and the trial court sentenced her to community control. Ms. Murr now appeals her conviction, raising two assignments of error for this Court’s review.

Appeal

Possession of a Controlled Substance

O.R.C. §2925.11(A), under which Ms. Murr was convicted, provides that “[N]o person shall knowingly obtain, possess, or use a controlled substance or a controlled substance analog.” A person acts “knowingly” when the person “is aware that the person’s conduct will probably cause a certain result or will probably be of a certain nature.” 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).

Constructive Possession 

This Court has repeatedly held that a person may knowingly possess a substance or object through either actual or constructive possession.” State v. Higgins, 2018-Ohio-476, quoting State v. Rowe, 2016-Ohio- 5395. “Constructive possession exists when an individual knowingly exercises dominion and control over an object, even though that object may not be within h[er] immediate physical possession.” Id. “As this Court recognizes, ‘[T]he crucial issue is not whether the accused had actual physical contact with the article concerned, but whether the accused was capable of exercising dominion [and] control over it.’” State v. Pari, 2017-Ohio-4165, quoting State v. Reis, 2012-Ohio- 2482. “Nevertheless, ‘constructive possession may be inferred from the drugs’ presence in a usable form and in close proximity to the defendant.’” Pari at ¶ 10, quoting State v. Figueroa, 2005-Ohio-1132. “Circumstantial evidence is itself sufficient to establish dominion and control over the controlled substance.” Pari at ¶ 10, quoting State v. Hilton, 2004-Ohio-1418, “Additionally, [p]ossession of a drug includes possessing individually, or jointly with another person. Joint possession exists when two or more persons together have the ability to control an object, exclusive of others.” (Higgins at ¶ 17, quoting Rowe.

 

Angel’s Non Sequitur [Does Not Follow] Legal Argument

Here, Ms. Murr solely argues that the State failed to present sufficient evidence to prove that she constructively possessed the drugs. In support of her argument, Ms. Murr asserts that the police found the drugs on the passenger seat, and that no testimony connected her to the drugs. Ms. Murr also asserts that R.T. was the passenger in her SUV, and that he had immediate access to the drugs. Ms. Murr concludes that the mere fact that drugs were found in her SUV is insufficient to prove possession.

 

Ninth District Appellate Court’s Analysis

Ms. Murr’s argument lacks merit. As this Court has acknowledged, “constructive possession may be inferred from the drugs’ presence in a usable form and in close proximity to the defendant.” Pari at ¶ 10, quoting Figueroa, ¶ 8. The State presented evidence indicating that Ms. Murr owned the SUV and was sitting in the driver’s seat before the officer arrived. The State also presented evidence indicating that the corporal saw the drugs wrapped in cellophane on the passenger seat of Ms. Murr’s SUV. Additionally, the State presented evidence indicating that Ms. Murr admitted to driving to Cleveland earlier that day with R.T. to buy drugs, although she denied that they were her drugs. Viewing the evidence in a light most favorable to the State, this Court concludes that the State presented sufficient evidence to allow the jury to reasonably conclude that Ms. Murr had constructive possession of the drugs. See Pari at ¶ 10; Jenks, 61 Ohio St.3d at 273 (1991).

 

Those Who Ignore Established Case Law are Likely to Create New Case Law

Additionally, Ms. Murr’s argument ignores case law regarding joint possession, that is, “[W]hen two or more persons together have the ability to control an object, exclusive of others.”  Higgins at ¶ 17, quoting Rowe at ¶ 9. Thus, despite Ms. Murr’s argument to the contrary, the fact that R.T. also had access to the drugs does not establish that the State failed to present sufficient evidence to prove that Ms. Murr possessed the drugs.

 

Holding

Viewing the evidence in a light most favorable to the State, this Court concludes that the State presented sufficient evidence to allow the jury to reasonably conclude that the State proved that Ms. Murr possessed a fentanyl-related compound beyond a reasonable doubt. Jenks, 61 Ohio St.3d at 273 (1991). Accordingly, Ms. Murr’s first assignment of error is overruled.

Information for this article was obtained from State v. Murr, 2023 – Ohio – 1934.

State v. Murr, 2023 – Ohio – 1934 was issued by the Ninth District Appellate Court on June 12, 2023 and is binding in the following Ohio Counties: Lorain, Medina, Summit and Wayne.

Lessons Learned:

  1. Constructive Possession Two Part Test – Possession is evaluated in the criminal court in two ways: either actual or constructive. Actual possession is when a person has property on his person.  Constructive Possession is based on the totality of the circumstances.  To evaluate Constructive Possession, it begins with the Ohio Revised Code.   Under O.R.C. §2901.21 (F)(1) states “Possession is a voluntary act if the possessor knowingly procured or received the thing possessed, or was aware of the possessor’s control of the thing possessed for a sufficient time to have ended possession.”.  The Supreme Court of Ohio established a two-part test to determine Constructive Possession: “1) When an individual knowingly exercises 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)
  1. Ownership is NOT an element of Constructive Possession – In this case Ms. Murr admitted that she purchased drugs earlier that day but defended ‘possession’ by stating the drugs were not her own. That defense is ineffective as ownership is not an element of Constructive Possession.
  2. Conscious of the Object? When applying the Constructive Possession Doctrine, law enforcement must strongly focus on whether the suspect was ‘conscious’ of the object from the second prong established in Hankerson.  What information or evidence can be determined from the facts as to why this suspect was aware of the object?  This will be a key point raised by the defense, most especially if there is more than one person with whom the object is within their immediate control.  For more on Constructive Possession see https://www.objectivelyreasonable.com/category/constructive-possession/
  3. Pre-Sent Arms! Both the unnamed corporal from the Wellington Police Department and the unnamed officer from the Lorain Police Department should be highly commended for their actions that led to the conviction of Ms. Murr.  Well done!

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Robert H. Meader Esq.