[T]he fact that there were two people who shared the bedroom where the drugs were found does not detract from Mr. Veon’s possession. The circumstantial evidence presented by the State in this case was sufficient to demonstrate that Mr. Veon had constructive possession of the drugs found in the master bedroom.

 

State v. Veon

2023 – Ohio – 3333

Seventh District Appellate Court

Columbiana County, Ohio

September 14, 2023

Guilty on Two Counts of Aggravated Possession of Drugs

Mr. Jack Rowland Veon, II, appeals from a Columbiana County Common Pleas Court judgment finding him guilty of two counts of aggravated possession of drugs, following a jury trial.

Columbiana County Drug Task Force Continues to do Outstanding Work!

As a result of an investigation by the Columbiana County Drug Task Force (task force) of suspected drug activity at Mr. Veon’s residence, the task force obtained a search warrant for Mr. Veon’s home.

Search Warrant Execution

The task force executed the warrant on February 11, 2021. When the task force entered the house, Mr. Veon, his girlfriend Mary Beth Kiehl, and her juvenile son were in the kitchen. Another housemate, Robert Crespo, was in the basement. The search was led by Detective Sergeant Brett Grabman.

Oodles of Drugs and Paraphernalia in the Master Bedroom

During the search, methamphetamine, Psilocyn, and drug paraphernalia were found in the master bedroom, a room shared by Mr. Veon and Ms. Kiehl. Drug paraphernalia was also found throughout the home. Paraphernalia included smoking pipes, vials, and digital scales. Multiple cell phones and money were also found.

Indicted

A Columbiana County Grand Jury indicted Mr. Veon by way of secret indictment on October 13, 2021. The indictment charged Mr. Veon with two counts of aggravated possession of drugs, fifth-degree felonies in violation of O.R.C. §2925.11(A). The indictment identified the drugs as methamphetamine and Psilocyn. Ms. Kiehl was also charged separately with drug possession.

Jury found Mr. Veon Guilty and he was Sentenced to Twenty-two Months in Prison

The case proceeded to a jury trial on October 12, 2022. The jury found Mr. Veon guilty as charged. The trial court subsequently sentenced Mr. Veon to consecutive eleven month prison sentences.

Four Appeals were filed and were all denied; only one appeal will be evaluated in this article … Did Mr. Veon Constructively Possess the Methamphetamine, Psilocyn and drug paraphernalia?

Note:  The other three appeals were also denied but are not evaluated in this article.

Det. Sgt. Grabman was the State’s sole witness. Thus, we must examine his testimony to determine if the State presented evidence going to each element of aggravated drug possession.

Probable Cause is Established

Det. Sgt. Grabman testified that the task force came to believe drugs were being stored or sold from 36358 Teagarden Road. This belief was partially due to two traffic stops of vehicles leaving this residence. One traffic stop was of Ms. Kiehl, who was charged with operating a vehicle while under the influence. Ms. Kiehl confirmed that she and Mr. Veon both resided at the Teagarden Road address. During another traffic stop, the driver had drugs on him that he stated he had purchased from the Teagarden Road address. The task force also retrieved a receipt from the trash outside of the Teagarden Road residence that had Mr. Veon’s name and address on it.

The Columbiana County Drug Task Force served a search warrant at 36358 Teagarden Road, which is south and east of Salem, Ohio.  Can two occupants both constructively possess contraband?  The Seventh District Appellate Court upheld Mr. Veon’s conviction under the Constructive Possession Doctrine.

Search of the Master Bedroom Reveals Methamphetamine, Vials with Crystal Like Substance, White Power, Pills, a Cut Straw, Drug Pipes and Other Drug Paraphernalia

Det. Sgt. Grabman testified that when the task force entered Mr. Veon’s house, Mr. Veon was in the kitchen with Ms. Kiehl and her young son. Another man was in the basement. The task force searched the master bedroom, which contained both men’s and women’s clothing and personal items. Inside a dresser drawer that contained men’s underwear, the task force found a bag containing crystal methamphetamine. On a different dresser, the task force located vials with a “crystal-like” substance in them. Additionally, they found white powder on the dressers. And they found drug pipes, pills, a cut straw, and other drug paraphernalia. These items were all in plain view in the master bedroom.

BCI Testing is Conclusive

Det. Sgt. Grabman sent some of the items to the Bureau of Criminal Identification and Investigation (BCI) for testing. The BCI report concluded that the items tested included: .21 grams of methamphetamine; .22 grams of methamphetamine; .17 grams of methamphetamine; .15 grams of Psilocyn, a hallucinogenic mushroom; and Suboxone, a prescription medication prescribed to help with withdrawal symptoms for opiate users.

Established Case Law

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, ¶ 78, quoting State v. Kobi, 122 Ohio App.3d 160, 174, (1997).

Can two persons constructively possess the same thing?

In this case, the evidence indicated that Mr. Veon and Ms. Kiehl shared the master bedroom. The drugs were located in the master bedroom. Some of the methamphetamine was found in a dresser drawer containing men’s underwear, indicating it was in Mr. Veon’s constructive possession. As for the remainder of the drugs found, “[T]wo persons may constructively possess the same thing.” State v. Jackson, 2005-Ohio-5184, citing State v. Galindo, 1999 WL 461749, *3 (July 9, 1999).

Circumstantial Evidence

So the fact that there were two people who shared the bedroom where the drugs were found does not detract from Mr. Veon’s possession. The circumstantial evidence presented by the State in this case was sufficient to demonstrate that Mr. Veon had constructive possession of the drugs found in the master bedroom.

Holding

Accordingly, Mr. Veon’s second assignment of error is without merit and is overruled.

Information for this article was obtained from State v. Veon, 2023 – Ohio – 3333.

State v. Veon, 2023 – Ohio – 3333 was issued by the Seventh District Appellate Court and is binding in the following Ohio Counties: Belmont, Carroll, Columbiana, Harrison, Jefferson, Mahoning, Monroe and Noble.

Lessons Learned:

  1. Constructive Possession – This case is reflective of so many narcotics search warrants where the house contains multiple residents, part time residents and other transient drug consumers. How can any narcotic or drug paraphernalia instrument be constructively possessed by someone in the house but not in the room where the contraband is found by law enforcement?  By establishing that a specific person constructively possessed the contraband.  The Constructive Possession 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 most challenging element is prove that the person was conscious of the object.  In this case the contraband was found in the master bedroom.  Therein the officer discovered a bag containing crystal methamphetamine inside a drawer with men’s underwear.  The remaining contraband was also found in the master bedroom as the court described “And they found drug pipes, pills, a cut straw, and other drug paraphernalia. These items were all in plain view in the master bedroom.”. The key was the documentation by the team searching the home and specifically describing the men’s underwear next to the nestled crystal methamphetamine.
  2. Can Two People Both Constructively Possess the Same Object? Often times in motor vehicles law enforcement can charge both the driver and passenger with possession of contraband when it is found underneath a seat or in the center console. This is a common example of when two people can constructively possess the same thing.  The fundamental element is that the officer must establish how both persons were ‘conscious’ of the contraband.  In this case, the court provides established case law, dating back to 1999: “[T]wo persons may constructively possess the same thing.” State v. Jackson, 2005-Ohio-5184, citing State v. Galindo, 1999 WL 461749, *3 (July 9, 1999).
  3. Pre-Sent Arms! The Columbiana County Drug Task Force (task force) should be highly commended for their exceptional work on this investigation and search warrant execution. Well done!

Does your agency train on the Constructive Possession Doctrine?

Don’t fail your training.

Don’t let your training fail you!

Be safe, smart and Objectively Reasonable!

Robert H. Meader Esq.