All of that evidence was certainly enough to convince the average mind, beyond a reasonable doubt, that Ms. Rowe was aware of the drug pipe in her jacket pocket.

 

State v. Rowe

2023 – Ohio – 3686

Third District Appellate Court

Mercer County, Ohio

October 10, 2023

 

Traffic Stop for No Taillights and Improper License Plates

Officer David Powell of the Celina Police Department was the sole prosecution witness at trial. Officer Powell testified that on November 9, 2022, at approximately 3:20 a.m., he stopped the truck being driven by Ms. Jenny Rowe for having no taillights and having improper license plates. With Ms. Rowe was a single passenger, a male named “Nick.” After writing citations for the violations, Officer Powell handed the paperwork to Ms. Rowe, who was still seated in the truck she had been driving. Because the truck was going to be impounded, Ms. Rowe and Nick then got out of the truck and began retrieving personal property from the bed of the truck.  Officer Powell and his sergeant were standing near the back of the truck at that time, when Ms. Rowe approached to ask a question of the sergeant. 

Ms. Rowe Drops a Glass Pipe

As Ms. Rowe stood speaking with the officers, a glass pipe fell out of the left pocket of Ms. Rowe’s black puffy jacket, dropped to the ground, and broke into two pieces.  Officer Powell noticed the item falling, heard a loud sound of glass breaking, and looked down and observed that the item was a pipe. Ms. Rowe immediately attempted to reach down and pick up the pipe, but Officer Powell stopped her and placed her in handcuffs.  Officer Powell testified that, based on his training and fifteen years of experience, the type of pipe carried by Ms. Rowe, with a glass stem and a bubble, is commonly used to smoke methamphetamine or crack cocaine.

Glass Pipe had Visible Burn Marks

After the pipe fell out of Ms. Rowe’s pocket, the pipe was collected off the ground by the officers at the scene, packaged and placed into the police department’s secure property system, and then was subsequently admitted as a prosecution exhibit at trial. At trial, when identifying the pipe, Officer Powell testified that the visible burn marks on the pipe “indicate that there is residue and that this has been used in the past.”

Also introduced in evidence during the prosecution’s direct examination of the patrol officer was an audio/video recording of the incident that had been recorded on Officer Powell’s body camera.

Ms. Rowe Initiates the Not-My-Jacket Defense

On cross-examination, Officer Powell confirmed that he did not observe Ms. Rowe smoking meth or using the pipe at issue, and a search of her person revealed no other drug paraphernalia or illegal drugs in her possession. Nick, the passenger with Ms. Rowe, was also searched and nothing illegal was found on his person. The truck driven by Ms. Rowe was inventoried by the officers and nothing illegal was located in the truck.  Officer Powell also testified during cross-exam that, upon the pipe falling out of Ms. Rowe’s pocket, Ms. Rowe immediately said the jacket was not hers and that the pipe was not her pipe, assertions that Ms. Rowe then repeated multiple times.

Ms. Rowe was Familiar with Everything in the Jacket Except for the Glass Pipe

On redirect-examination, Officer Powell testified that when Ms. Rowe’s pockets were checked during the search of her person, she demonstrated a familiarity with every other item in her jacket pockets.

Ms. Rowe’s Testifies to Her Employment

Ms. Rowe then took the stand at trial and testified in her own defense. She testified that she was employed by an automotive business, where the owner does auto body work and vehicle restoration. The owner buys cheap used cars from which to harvest parts for his business, and then recycles and sells other parts of the vehicles, such as catalytic converters. Ms. Rowe testified that such vehicle purchases often took place out of town and it was not uncommon to pick up a vehicle in the middle of the night.

Ms. Rowe Testifies to the Randomness of Her Jacket Selection

Ms. Rowe testified that on November 9, 2022, she and Nick picked up a used vehicle in West Carrollton from a seller who did not get off work until 11:00 at night. Ms. Rowe was driving the “company truck” at the time. Ms. Rowe testified that she and Nick dropped off the newly acquired used vehicle at her employer’s shop in Celina. Before leaving the shop to drive to the duplex where Ms. Rowe lived at the time, because it was freezing cold outside, she grabbed an old jacket from the backseat of the used vehicle they had just purchased. Ms. Rowe testified that she did not check the pockets because she was not planning to keep the jacket on for more than the drive home. During that drive home, Ms. Rowe was stopped by the police.

As a result, the pipe fell out

With regard to the pipe that fell out of her jacket pocket, Ms. Rowe testified that she had walked up to the officers and, while doing so, shoved her driver’s license and other documents into the jacket pocket, in order to free her hands so she could retrieve some items from the back of the truck. As a result, the pipe fell out.

What is Knowingly?

Knowingly” is defined in O.R.C. §2901.22(B), which provides in pertinent part that “[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.” As one cannot look into the mind of another, the element of knowledge is to be determined from the facts and circumstances in evidence. State v. Teamer, 82 Ohio St.3d 490, 492 (1998).

What is Possession?

“‘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). Knowing possession of an object can be actual or constructive. State v. Scalf, 126 Ohio App.3d 614, 619, (8th Dist.1998). “When the disputed issue is the culpable mental state, such as knowledge, the trial court must often rely on circumstantial evidence because direct evidence will rarely be available.” State v. Ha, 2009–Ohio–1134.

Trial Court Determined that Ms. Rowe Knowingly Possessed

In this case, a thorough review of the record reflects that the trial court received ample evidence establishing that Ms. Rowe knowingly possessed the drug paraphernalia at issue, and that same evidence was not outweighed by evidence to the contrary.

Established Case Law

First and foremost, the drug pipe was found to have been on Ms. Rowe’s person, in her jacket pocket. It is a reasonable inference for a trier of fact to conclude that a person has knowledge of an item contained in the clothing they are wearing. See State v. Stewart, 2023-Ohio-253, ¶ 18, citing State v. Williams, 2010-Ohio-3383, ¶ 12-15; State v. Brown, 2004-Ohio-5887, ¶ 11-13.

Circumstantial Evidence

Not startled … I do apologize

While Ms. Rowe testified that the jacket was not hers and that she had no knowledge of the drug pipe in her pocket, the trial court was free to discredit that testimony. Additionally, there was other circumstantial evidence tending to disprove Ms. Rowe’s claim that the jacket was not hers and that she had no knowledge of the drug pipe. For instance, the video of the traffic stop reflects that the jacket appeared to fit Ms. Rowe perfectly, even though Ms. Rowe testified that the jacket was “way too small.” The video also reflects that, upon initially being pulled over and then approached by the patrol officer, Ms. Rowe appeared to have unzipped her left jacket pocket and retrieved her driver’s license, which she then handed to the officer. Later in the video, Ms. Rowe did not appear to be the least bit startled or surprised when the glass pipe fell from her pocket to the ground and loudly broke. On the contrary, Ms. Rowe displayed no hesitation before reaching down for the pipe after it fell on the ground. At that point in the video, when  Officer Powell immediately stopped Ms. Rowe from grabbing the broken pipe off the street, she then said, “I do apologize.”

Dental Picks Add to Circumstantial Evidence the Jacket was not Randomly Selected

The video further reflects that Ms. Rowe subsequently asked if she could smoke one of the cigarettes in the pack removed from her jacket pocket by Officer Powell. Finally, as the officer was pulling items out of Ms. Rowe’s jacket pocket when searching her person after the pipe fell to the ground, Ms. Rowe identified some of the items removed as dental picks and stated that she had put those in the coat pocket.

Conclusion and Holding

Having first examined the evidence adduced by the prosecution in a light most favorable to the prosecution, we conclude that the prosecution presented sufficient evidence to substantiate the essential element of knowing possession. All of that evidence was certainly enough to convince the average mind, beyond a reasonable doubt, that Ms. Rowe was aware of the drug pipe in her jacket pocket. Further, upon considering and weighing all of the evidence presented at trial, we conclude that the trial court did not lose its way when it found that Ms. Rowe knowingly possessed the drug paraphernalia. The trial court clearly did not believe Ms. Rowe testimony that she did not know the pipe was in the jacket, and we defer to the trier of fact’s assessment of witness credibility in light of all of the evidence. Reviewing the entire record, weighing the evidence and all reasonable inferences, and considering the credibility of witnesses, we find Lowe’s conviction was not against the manifest weight of the evidence with regard to the element of “knowingly”.

Information for this article was obtained from State v. Rowe, 2023 – Ohio – 3686

State v. Rowe, 2023 – Ohio – 3686 was issued by the Third District Appellate Court on October 10, 2023 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:

  1. Circumstantial EvidenceEvidence which inferentially proves the principal fact. org. Retrieved March 20, 2024. What this means in practical application is that there are facts obtained which infer a reasonable conclusion.
  2. ‘Not My’ Defense – Law enforcement officers are often confronted with the ‘not my …’ defense as suspects claim that that the vehicle, bags and even clothing are not their own, so the contraband discovered is someone else’s. Legally the ‘not my’ defense is a claim of negligence.  Negligence is not a reasonable criminal defense.  So here, Ms. Rowe’s claim that the jacket was not her own and shockingly the glass pipe that was nestled next to her cigarettes and dental picks that were her own, fell out of her pocket and she immediately apologized.
  3. Knowingly Possess – The Third District Appellate Court determined that Ms. Rowe did ‘knowingly possess’ the glass pipe as it held “[W]e conclude that the prosecution presented sufficient evidence to substantiate the essential element of knowing possession. All of that evidence was certainly enough to convince the average mind, beyond a reasonable doubt, that Ms. Rowe was aware of the drug pipe in her jacket pocket.”.
  4. Pre-Sent Arms! Celina Police Officer David Powell should be highly commended for his investigation and arrest of Ms. Jenny Rowe. Well done Officer Powell!

Does your agency train on Circumstantial Evidence?

Don’t fail your training.

Don’t let your training fail you!

Be safe, smart and Objectively Reasonable!

Robert H. Meader Esq.