[T]he officers presented credible testimony that established Mr. Hicks’s constructive possession of the rifle.

 

State v. Hicks

2023 – Ohio – 2209

First District Appellate Court

Hamilton County, Ohio

June 30, 2023

Sergeant Deshawn Brooks and Officer Rami Khayo of the Springfield Township Police Department initiated a traffic stop for a speeding violation. Mr. Samuel Hicks was in sitting in the back seat of the car, next to a rifle covered by a jacket. The state charged Mr. Hicks with carrying a concealed weapon in violation of O.R.C. §2923.12(A)(2) and improperly handling a firearm in a vehicle in violation of O.R.C. §2923.16(B).

The Smell of Marijuana Led to a Rifle Covered with a Jacket

At the bench trial, Sgt. Brooks testified that he smelled marijuana coming from the car during the stop. Sgt. Brooks detained the driver and informed him that officers were going to search the car. Sgt. Brooks recalled that Officer Khayo found a gun in the front passenger’s waistband during a pat-down. Sgt. Brooks testified that Mr. Hicks was sitting in the back seat and he kept reaching with his left hand over to the [left] side of him. And he just kept reaching around, wasn’t really reaching, — you know, he didn’t grab anything, but he kept touching to the left of him, which was a jacket, was unsure what was underneath the jacket.  Sgt. Brooks trained his firearm on Mr. Hicks before placing him into custody in the back of the police cruiser. Officers located and recovered a “rifle where [Mr. Hicks]’s left hand was, which was underneath the jacket he was touching.” The rifle was loaded and had a bullet in the chamber.

Mr. Hicks Only Touched the Jacket Covering the Rifle not the Actual Rifle

On cross-examination, Sgt. Brooks acknowledged that the driver’s mother owned the car and phoned both the property clerk and Sgt. Brooks to retrieve the rifle. And Sgt. Brooks testified that the officers had not observed Mr. Hicks touching the rifle; instead, he touched only the jacket. Officer Khayo explained that Sgt. Brooks trained his firearm on Mr. Hicks because Mr. Hicks “was moving around so much and wouldn’t obey our commands.”

Trial Court Found Mr. Hicks Guilty

The trial court found Mr. Hicks guilty of both carrying a concealed weapon in violation of O.R.C. §2923.12(A)(2) and improperly handling a firearm in a motor vehicle in violation of O.R.C. §2923.16(B), explaining that the case “come[s] down to reason and common sense.” The trial court sentenced Mr. Hicks to two years of community control for each conviction.

Mr. Hicks Makes Two Appeals of his Convictions

On appeal, Mr. Hicks challenges the sufficiency and manifest weight of the evidence underlying his convictions in two assignments of error.

Did Mr. Hicks ‘Constructively Possess’ the Rifle?

The parties dispute whether the evidence established Mr. Hicks’s constructive possession of the rifle. Constructive possession is knowingly controlling or maintaining power over a firearm “either directly or through others.” State v. Phillips, 2014-Ohio-5162. But a person’s mere presence in the vicinity of a firearm, alone, does not create an inference of constructive possession. Rather, constructive possession may be inferred from a combination of facts, such as an awareness of a firearm that is within easy reach. State v. Hankerson, 70 Ohio St.2d 87, 92 (1982).

Mr. Hicks Makes the Argument that Just Because he was the Only Person Sitting Next to the Rifle Did not Mean he had Dominion and Control Over the Rifle

 Mr. Hicks acknowledges that the evidence establishes that he sat near the rifle but argues that there is no evidence demonstrating that he had dominion or control over the rifle. We disagree. At the trial, officer testimony established that Mr. Hicks was the only passenger in the backseat next to the rifle, which was covered by a jacket, and “[Mr. Hicks] kept touching to the left of him, which was a jacket.” Sgt. Brooks testified that Mr. Hicks “kept reaching for it” in a suspicious manner. Mr. Hicks’s actions indicate that he was aware of the rifle which was within reaching distance.

Mr. Hicks Attempts to Use Non-Analogous Case Law in his Defense

Mr. Hicks (feebly) analogizes the evidence in this case to the evidence in State v. Devaughn, 2020-Ohio-651, a recent case from this court where we held that the evidence failed to establish Devaughn’s constructive possession of drugs in a car’s center console and was therefore insufficient to sustain a conviction for drug possession. See id. at ¶ 37. In Devaughn, we explained,

[T]he car where the drugs were found was not registered to Devaughn. There was no testimony that he had ever driven the car or possessed the keys to the car. The officers who saw Devaughn lean into the car did not testify, so the record contains no evidence regarding how far he leaned into the car, how long he leaned into the car, or whether he made any furtive movements while leaning into the car. The state did not present any DNA or fingerprint evidence connecting him to the center console where the drugs were found or connecting him to the drugs and scale that were found in the console. Finally, the state did not present any evidence that Devaughn placed any items into the car or removed any items from the car. Id. at ¶ 35.

But unlike Devaughn, the officers in this case testified that Mr. Hicks was inside the car, next to the rifle, and touched the jacket covering the rifle.

First District Appellate Court Upholds Conviction

When viewed in a light most favorable to the state, the evidence established that Mr. Hicks had constructive possession of the rifle and was therefore sufficient to sustain his convictions for carrying a concealed weapon and improperly handling a firearm in a motor vehicle. We overrule his first assignment of error.

Second Appeal: The convictions were not against the manifest weight of the evidence

In his second assignment of error, Mr. Hicks maintains that the manifest weight of the evidence demonstrated that he did not possess the rifle. In contrast to a sufficiency argument, a manifest-weight argument tests whether the state carried its burden of persuasion.

Is DNA Required for a Constructive Possession Conviction?

Mr. Hicks emphasizes the lack of DNA evidence connecting him to the rifle and the fact that the driver’s mother asked the police for the rifle. First, the lack of DNA evidence in Devaughn was significant because there was no evidence connecting the defendant to the drugs recovered from the car. But here, officer testimony connected Mr. Hicks to the rifle. Turning to the lack of DNA evidence, as the Philpott court explained, “the lack of DNA or fingerprints on the gun is not persuasive because there was no evidence that the gun was tested for either DNA or fingerprints.Philpott, 2020-Ohio-5267.  While the evidence suggests that the driver’s mother owned the rifle, “a person may knowingly possess or control property belonging to another.” State v. Davis, 2016-Ohio-7964.

No!

In this case, the officers presented credible testimony that established Mr. Hicks’s constructive possession of the rifle. This is not an exceptional case in which the trial court clearly lost its way and created a manifest miscarriage of justice. Mr. Hicks’s second assignment of error is overruled.

Conclusion

We overrule Mr. Hicks two assignments of error and affirm his convictions.

Information for this article was obtained from State v. Hicks, 2023 – Ohio – 2209.

State v. Hicks, 2023 – Ohio – 2209 was issued by the First District Appellate Court and is binding in Hamilton County, Ohio.

Lessons Learned:

  1. Constructive Possession – For a person to Constructively Possess contraband, law enforcement must demonstrate, and prosecutors must prove, that the suspect/defendant 1) Knowingly exercised dominion and control over an object, even though that object may not be within his immediate physical control; and 2) The defendant was conscious of the object’s presence. See State v. Hankerson, 70 Ohio St.2d 87 (1982) Often, the most significant factor to prove Constructive Possession is the conscious element. In this case, Mr. Hicks made the feeble argument that because he was only touching the jacket that covered the rifle, he was unaware of the rifle secreted underneath the jacket.  Springfield Township Police Sergeant Deshawn Brooks and Officer Rami Khayo did a great job to articulate the positioning of the rifle, Mr. Hicks’ actions and how all of it was evaluated under a totality of the circumstances.
  2. Is DNA Required to Prove Possession? Hicks made a second feeble argument that DNA is required to prove Constructive Possession. As we know, DNA can prove that a person touched an object.  But the mere absence of DNA is not conclusive that a person did not touch an object.  The First District Appellate Court was quick to dismiss this line of argument and uphold Mr. Hicks convictions.
  3. Additional Constructive Possession Articles https://www.objectivelyreasonable.com/category/constructive-possession/
  4. Pre-Sent Arms! Springfield Township Police Sergeant Deshawn Brooks and Officer Rami Khayo should be highly commended for their teamwork to arrest Mr. Hicks and potentially inhibit a violent encounter with law enforcement or other citizens. Well done Sergeant Deshawn Brooks and Officer Rami Khayo!

 

Does your agency train on Constructive Possession?

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!

Robert H. Meader Esq.