Viewing this evidence in favor of the State as we are required to do, there is sufficient evidence to prove that Mr. Blake had constructive possession of the firearm while he was under a weapons disability [and naked].
State v. Blake
2023 – Ohio – 2748
Seventh District Appellate Court
Columbiana County, Ohio
August 8, 2024
Felonious Red Sweatpants, Cocaine, Fentanyl, Heroin, a Glock and Nudity
On Wednesday May 22, 2019, the Columbiana County Drug Task Force executed a search warrant at 410 14th Street in Wellsville. Mr. Jarrell Sloan resided at the home and opened the door for the officers. Mr. Darrell Blake, who had spent the previous night at the house, was found naked in an upstairs bedroom with a woman. Mr. Blake asked the officers if he could put on his red sweatpants, which were sitting on the bed near him. Officers searched the pants before giving them to Mr. Blake and found approximately $4,200 in the pocket. Included in the cash found in Mr. Blake’s sweatpants was $40 from a controlled drug buy the previous day. Officers also noticed a loaded Glock pistol on the floor next to the bed. And they located a bag under the edge of the bed, covered with a towel, which contained three smaller baggies of 15.20 grams of cocaine, 14.38 grams of a heroin-fentanyl mixture, and 4.43 grams of a fentanyl-heroin mixture. The drugs had a street value of approximately $7,100. Officers also noticed various drug paraphernalia such as a digital scale and baggies.
The Columbiana County Drug Task Force executed a search warrant at 410 14th Street in Wellsville, Ohio. Mr. Blake was naked and was charged with Constructive Possession of Cocaine, Heroin, Fentanyl and a Glock. Would the Seventh District uphold his conviction?
On October 18, 2019, a Columbiana County Grand Jury indicted Mr. Blake on one count of possession of cocaine, a third-degree felony in violation of O.R.C. §2925.11(A); one count of possession of heroin, a second-degree felony in violation of O.R.C. §2925.11(A); one count of possession of a fentanyl-related compound, a second- degree felony in violation of O.R.C. §2925.11(A); one count of having a weapon under disability, a third-degree felony in violation of O.R.C. §2923.13(A)(3); and one count of possession of drug paraphernalia, a fourth-degree misdemeanor in violation of O.R.C. §2925.14(C)(1). The felony charges carried firearm specifications and forfeiture specifications. Mr. Blake entered a not guilty plea.
Guilty on All Counts
The matter proceeded to a jury trial on May 17, 2022. The jury found Mr. Blake guilty on all felony charges and not guilty on the misdemeanor charge. It also found $4,186 and a Glock Model 22 pistol were subject to forfeiture. The court proceeded to sentencing.
Thirteen to Sixteen-and-One-Half Years in Prison
For possession of cocaine, the trial court sentenced Mr. Blake to twenty-four months in prison and a mandatory $5,000 fine. For possession of heroin, the court sentenced him to an indefinite prison term of seven to ten-and-a-half years and a mandatory $7,500 fine. For possession of a fentanyl-related compound, the court sentenced Mr. Blake to an indefinite term of seven to ten-and-a-half years and a mandatory $7,500 fine. For having a weapon under disability, the court sentenced him to 36 months. And on the firearm specification, the court sentenced Mr. Blake to one year which was required to be served prior to and consecutively to the other prison terms. The court ordered Mr. Blake to serve the sentences for possession of heroin and possession of a fentanyl-related compound concurrently with each other but consecutively to the other sentences. It ordered him to serve the sentences for possession of cocaine and having a weapon under disability consecutively to each other. Thus, Mr. Blake’s aggregate sentence is a minimum of thirteen years and a maximum of sixteen-and-one-half years.
Mr. Blake filed a timely notice of appeal on June 9, 2022. He now raises four assignments of error.
Mr. Blake Appeals that he Constructively Possessed the Narcotics and Firearm
Mr. Blake argues that his convictions were not based on sufficient evidence. He points out there was no testimony that he physically possessed the drugs. Mr. Blake goes on to argue that Plaintiff-Appellee, the State of Ohio, did not prove constructive possession. He notes the evidence demonstrated he did not own the home where the drugs were found, he did not reside in the home where the drugs were found, and the drugs were not found in plain view in the room where he spent the night. Additionally, Mr. Blake argues the controlled buys did not prove evidence of possession.
Constructive Possession Established Case Law
The jury convicted Mr. Blake of possession of drugs in violation of O.R.C. §2925.11, which provides: “No person shall knowingly obtain, possess, or use a controlled substance or a controlled substance analog.” “Possession” is defined as “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).
The jury also convicted Mr. Blake of having a firearm while under disability, which prohibits a person under indictment for, or convicted of, a felony drug offense from knowingly acquiring, having, carrying, or using any firearm. O.R.C. §2923.13(A)(3).
In the context of drug offenses, “possession” may be either actual possession or constructive possession. State v. Carter, 2000 WL 748140. “Constructive possession exists when an individual exercises dominion and control over an object, even though that object may not be within his immediate physical possession.” State v. Wolery, 46 Ohio St.2d 316, 329 (1976).
We must now consider the evidence put forth by the State to determine if it was sufficient to sustain the jury’s verdict.
Facts Applied to Established Case Law
East Liverpool Police Officer Justin Watkins was a member of the Columbiana County Drug Task Force who executed the warrant leading to Mr. Blake’s arrest. Officer Watkins testified that when the search warrant was executed, officers found Mr. Blake in what they labeled “Room 7,” an upstairs bedroom. A woman named Ms. Reign Edwards was also in Room 7 with Mr. Blake.
Officer Watkins testified that drug paraphernalia, a scale, money, a gun, and suspected baggies of narcotics were all found in Room 7. More specifically, the officer stated that $4,197 was in found in the pair of red sweatpants that Mr. Blake asked for. Of that money, $40 was pre-recorded drug task force funds that had been used in a previous controlled drug buy. As to the suspected narcotics, testing revealed the baggies contained cocaine, heroin, and fentanyl. And Officer Watkins testified that the gun was a loaded Glock Model 22 handgun. He further testified that Mr. Blake was not permitted to possess a firearm because of a disability resulting from an indictment that was pending against him at the time.
Officer Watkins next testified that while he was working on the inventory from the search, Mr. Blake and Ms. Edwards were nearby him. He overheard Ms. Edwards ask Mr. Blake why he brought her to a “trap.” A “trap house” is a house where drugs are sold. Mr. Blake apologized to Ms. Edwards and stated that he would never do it again [At least for thirteen more years.]
BCI Scientist Testifies on Testing
Erin Miller is a forensic scientist at the Ohio Bureau of Criminal Identification and Investigation. She tested the suspected narcotics. Miller testified that the suspected narcotics contained cocaine, heroin, and fentanyl.
Columbiana County Sheriff Brian McLaughlin Testimony
Columbiana County Sheriff Brian McLaughlin was the director of the Columbiana County Drug Task Force (DTF) at the relevant time. Sheriff McLaughlin testified that in May 2019 the DTF made several controlled drug buys at 410 14th Street,
which is Mr. Jarrell Sloan’s family house. The sheriff testified that the controlled buys used a confidential informant who made contact with Mr. Blake to purchase drugs. He stated the investigation involved Mr. Sloan’s house and involved both Mr. Sloan and Mr. Blake. These controlled buys, the sheriff testified, led to the issuance of the search warrant for Mr. Sloan’s house. The last controlled drug buy occurred the day before the DTF executed the search warrant.
Sheriff McLaughlin testified that when the DTF arrived at Mr. Sloan’s house to execute the warrant, Mr. Sloan opened the front door for them. He stated that Mr. Blake and Ms. Edwards were found in an upstairs bedroom. Mr. Blake was naked and Ms. Edwards was wrapped only in a towel. The sheriff stated that Mr. Blake asked for his pants. There was a pair of red sweatpants on the bed, which Mr. Blake said were his. The officers searched the pants before giving them to Mr. Blake and found over $4,100 in the pocket. The DTF removed the money from the pocket and gave Mr. Blake his pants to wear. The sheriff testified the DTF also found narcotics, a gun, and drug paraphernalia in Room 7.
The sheriff testified that when they entered Room 7, Mr. Blake was located near the bottom right side of the bed, near the red sweatpants. A Glock pistol was located on the floor by the right side of the bed. The DTF also located some loose cash and baggies of marijuana on a television stand in Room 7.
As to the cash found in Mr. Blake’s sweatpants, the sheriff testified that two of the twenty-dollar bills were bills that had been used in the controlled drug buy the day before. The sheriff was able to identify them by serial number.
Next, Sheriff McLaughlin testified that underneath the right side of the bed, the officers located a towel. Underneath the towel, the officers found a single bag containing three smaller baggies of suspected narcotics, which were eventually identified as cocaine, heroin, and fentanyl.
The sheriff further testified that people involved in the drug world are protective of their drugs and normally do not leave them unattended. As to the value of the drugs recovered from Room 7, the sheriff estimated their total street value to be $7,100.
Sheriff McLaughlin also testified that during the course of his investigation, there was no evidence that connected Ms. Edwards to any drug activity at 410 14th Street.
More Established Constructive Possession Case Law
“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. Fry, 2004-Ohio-5747
“‘It must also be shown that the person was conscious of the presence of the object.’” State v. Vaughn, 2022-Ohio-3615, quoting State v. Hankerson, 70 Ohio St.2d 87, 91, (1982). But a defendant’s proximity to the drugs may constitute some evidence of constructive possession. A defendant’s conviction for drug possession can be based upon circumstantial evidence of possession. State v. DeSarro, 2015-Ohio-5470. When drugs are readily usable and found in very close proximity to a defendant these facts may constitute circumstantial evidence and support a conclusion that the defendant had constructive possession of the drugs. State v. Barker, 2006-Ohio-1472, quoting State v. Kobi, 122 Ohio App.3d 160, 174 (1997).
Re-Application of Facts to Established Case Law
In this case, Mr. Blake was found in Room 7. The drugs and gun were also located in Room 7. Mr. Blake was not alone in Room 7. Ms. Edwards was also found in the same room as the drugs and the gun. However, “two persons may constructively possess the same thing.” State v. Jackson, 2005-Ohio- 5184, citing State v. Galindo, 6th Dist. No. L-98-1242 (July 9, 1999). So the fact that there were two people near the contraband does not detract from Mr. Blake possessing it.
Mr. Blake Did Not Attempt the ‘Not my Pants’ Defense
Another piece of circumstantial evidence tends to indicate that Mr. Blake constructively possessed the drugs. A large amount of cash was found in his sweatpants. More significantly, $40 of that cash was from a controlled drug buy the day before. This evidence suggests that Mr. Blake was conscious of the presence of the drugs.
Factors For and Against Mr. Blake
Several facts weigh in favor of Mr. Blake’s argument here such as Mr. Blake did not own the home where the drugs were found, Mr. Blake did not reside in the home where the drugs were found, and the drugs were not in plain view. But Mr. Blake clearly had access to the drugs. They were found in close proximity to Mr. Blake. And Mr. Blake was in possession of a large amount of cash, including cash from the previous day’s-controlled drug buy. Thus, when viewing the evidence in a light most favorable to the prosecution as we are required to do in a sufficiency of the evidence challenge, sufficient evidence exists to support Mr. Blake’s convictions on the drug counts.
Constructive Possession of the Firearm
As to having a weapon under disability, the evidence was uncontroverted that Mr. Blake was under a weapons disability due to a pending felony indictment. And the firearm was found on the floor in plain view near Mr. Blake and near the bed. Viewing this evidence in favor of the State as we are required to do, there is sufficient evidence to prove that Mr. Blake had constructive possession of the firearm while he was under a weapons disability.
Accordingly, Mr. Blake’s first assignment of error is without merit and is overruled.
There were three other appeals filed and all were denied by the Seventh District Appellate Court. These additional appeals are not evaluated in this article.
Information for this article was obtained from State v. Blake, 2023 – Ohio – 2748.
State v. Blake, 2023 – Ohio – 2748 was issued by the Seventh District Appellate Court on August 8, 2023 and is binding in the following Ohio Counties: Belmont, Carroll, Columbiana, Harrison, Jefferson, Mahoning, Monroe and Noble.
- Constructive Possession – Mr.Blake’s conviction and appeal centered on the Constructive Possession Doctrine. This doctrine was established by the Supreme Court of Ohio in 1982. That court carved out a two-part Constructive Possession test; 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) The primary challenge for most constructive possession cases is for law enforcement to prove that the suspect was ‘conscious’ of the object in the second prong. In this case Mr. Blake’s red sweatpants contained forty dollars from a controlled drug buy the previous day. This factor was very detrimental to his argument that he did not constructively possess the cocaine, heroin, fentanyl and Glock underneath the bed into which he was lying. This investigation and prosecution underscore the importance of meticulous documentation as was completed by the Columbiana County Drug Task Force. So yes, Mr. Blake did constructively possess the cocaine, heroin, fentanyl and Glock … even though he was naked in Room #7.
- Narcotics and Firearms – In support that drug trafficking and firearms go together like a taser and a cartridge, the Supreme Court of Ohio held “The right to frisk is virtually automatic when individuals are suspected of committing a crime, like drug trafficking, for which they are likely to be armed.” State v. Evans, 67 Ohio 3d 405, 413 (1993). In Evans, the court determined that drug traffickers are likely to be armed and though the naked Mr. Blake did not physically possess the Glock, the Seventh District Appellate Court reasonably held that he did constructively possess the firearm.
- Officer Safety – The officers at scene followed best officer safety practices to search the red sweatpants of Mr. Blake before permitting him to put them on. In this case, the officers discovered some of the previous day’s buy money. However, what is more important is that officers do not hand a suspect a weapon that may have been secreted in the clothing.
- Pre-Sent Arms! The Columbiana County Drug Task Force, Columbiana County Sheriff Brian McLaughlin, Columbiana County Prosecutor’s Office and BCI Scientist Erin Miller should all be highly commended for their professional work on this investigation, prosecution and conviction. Well done team!
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and Objectively Reasonable!