[Cite as State v. Watters,
2022-Ohio-4060.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY
STATE OF OHIO, CASE NO. 2022-T-0015
Plaintiff-Appellee,
Criminal Appeal from the
-v- Court of Common Pleas
GEORGE F. WATTERS, JR.,
Trial Court No. 2021 CR 00662
Defendant-Appellant.
OPINION
Decided: November 14, 2022
Judgment: Affirmed
Dennis Watkins, Trumbull County Prosecutor, Administration Building, Fourth Floor, 160
High Street, N.W., Warren, OH 44481 (For Plaintiff-Appellee).
Katherine E. Rudzik, 26 Market Street, #904, Youngstown, OH 44503 (For Defendant-Appellant).
MATT LYNCH, J.
{¶1} Defendant-appellant, George F. Watters, Jr., appeals his conviction for
Aggravated Possession of Methamphetamine following a jury trial in the Trumbull County
Court of Common Pleas. For the following reasons, the conviction is affirmed.
{¶2} On October 7, 2021, the Trumbull County Grand Jury returned an
Indictment against Watters charging him with Aggravated Possession of
Methamphetamine, a felony of the fifth degree in violation of R.C. 2925.11(A) and
(C)(1)(a).
{¶3} On February 1, 2022, the case was tried before a jury. The following
testimony was presented at trial:
{¶4} Detective Adam Gilger of the Warren City Police Department testified that,
on October 12, 2020, he observed a pickup truck on Palmyra Road fail to signal when
turning. Gilger ran the truck’s license plate through his MDT (mobile data terminal) and
learned that the owner of the vehicle had an expired driver’s license. Gilger stopped the
truck on Southwest Boulevard. Watters was the owner and driver of the truck and there
was a female passenger, Heather Parker.
{¶5} As Detective Gilger approached the vehicle, he observed that Parker “had
a large bag on her lap and … she was reaching into [it] … and move[d] it to the floor,”
while Watters was “reaching towards the center console.” Gilger kept his “eyes on her
the whole time” thinking she might have a weapon. When she pulled her (right) hand
from the bag, it was empty.
{¶6} Gilger described Watters as sweating and shaking, “making weird
movements that didn’t really make too much sense.” Parker had a warrant out for her
arrest and she was removed from the vehicle. Because Watters’ license was expired
Gilger decided to tow the truck. While conducting an inventory search of the vehicle, he
discovered “a meth pipe in between the driver’s seat and the console stuffed … tightly
between the seat.” Gilger also found a bag of methamphetamine on a shelf underneath
the radio in the center console. There was a pack of cigarettes on top of the bag of
methamphetamine. Watters was smoking during the stop.
{¶7} Watters testified that, on the night in question, he had picked up Parker, his
“girlfriend-kind of,” at her friend’s house and was driving her home. He denied having any
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methamphetamine in his possession. He was aware that Parker had a large bag, but did
not pay much attention to anything she did.
{¶8} The jury found Watters guilty of Aggravated Possession of
Methamphetamine.
{¶9} Watters’ sentencing hearing was held on February 18, 2022. The trial court
sentenced him to one year in prison. Watters’ sentence was memorialized in a February
22, 2022 Entry on Sentence.
{¶10} On March 2, 2022, Watters filed a Notice of Appeal. Counsel for Watters
subsequently filed an Anders Brief and Motion to Withdraw pursuant to Anders v.
California, 386 U.S. 738,
87 S.Ct. 1396,
18 L.Ed.2d 493 (1967), indicating that she could
“find no error by the trial court prejudicial to the rights of appellant.” Counsel requested
this court “review the following potential assignments of error: (1) whether the trial court
erred by imposing the maximum prison sentence; and (2) whether the verdict was against
the weight and sufficiency of the evidence.”
{¶11} Under Anders, appellate counsel must conduct a conscientious
examination of the case and, if the appeal is found to be wholly frivolous, counsel should
so advise the court and request permission to withdraw. “A ‘frivolous’ appeal pursuant to
Anders is ‘one that presents issues lacking in arguable merit.’” (Citation omitted.) State
v. Pal, 11th Dist. Ashtabula No. 2021-A-0007, 2021-Ohio-3706, ¶ 16. “‘An issue lacks
arguable merit if, on the facts and law involved, no responsible contention can be made
that it offers a basis for reversal.’” (Citation omitted.)
Id. The appellant is furnished with
a copy of the Anders brief and given the opportunity to raise additional issues. Thereafter,
this court must review the entire record to determine whether the appeal is wholly
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frivolous. If this court is unable to find issues of arguable merit, the decision is affirmed
on the merits and counsel is allowed to withdraw. State v. Wright, 11th Dist. Ashtabula
No. 2021-A-0029, 2022-Ohio-2100, ¶ 5.
{¶12} Watters has not raised additional issues for review. Accordingly, we will
proceed to consider counsel’s proposed assignments of error.
{¶13} In the first proposed assignment, counsel proposed that this court review
the sentence imposed. Watters received a one-year prison sentence, the maximum
potential sentence for a felony of the fifth degree. R.C. 2929.14(A)(5).
{¶14} “The appellate court may increase, reduce, or otherwise modify a sentence
that is appealed under this section or may vacate the sentence … if it clearly and
convincingly finds … [t]hat the sentence is … contrary to law.” R.C. 2953.08(G)(2)(b).
Presently in Ohio, “[t]rial courts have full discretion to impose a prison sentence within the
statutory range and are [not] required to make findings or give their reasons for imposing
maximum … or more than the minimum sentences.” (Citation omitted.) State v. Vieira,
11th Dist. Lake No. 2021-L-110, 2022-Ohio-1636, ¶ 12.
{¶15} In State v. Jones, 163 Ohio St.3d 242,
2020-Ohio-6729,
169 N.E.3d 649,
the Ohio Supreme Court held that the phrase “contrary to law” meant, at the time of R.C.
2953.08’s enactment, a sentence “in violation of statute or legal regulations at a given
time.” (Citation omitted.) Id. at ¶ 34. The Court noted that, since R.C. 2953.08’s
enactment, none of the amendments to the statute have “materially changed R.C.
2953.08(G)(2)” with respect to the phrase “otherwise contrary to law.” Id. at ¶ 37. In State
v. Bryant, __ Ohio St.3d __,
2022-Ohio-1878, __ N.E.3d __, the Court clarified that, “when
a trial court imposes a sentence based on factors or considerations that are extraneous
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to those [seriousness and recidivism factors] that are permitted by R.C. 2929.11 and
2929.12, that sentence is contrary to law.” Id. at ¶ 22.
{¶16} Watters’ sentence is within the statutory range for a fifth-degree felony. The
only indication given by the trial court as to its reasoning for imposing the sentence it did
was the recollection that, at trial, Watters “attempted to blame somebody other than
[himself] for the drugs involved in this case.” This consideration is not extraneous to the
factors contained in R.C. 2929.11 and 2929.12. Compare R.C. 2929.12(D)(5) (“[t]he
offender shows no genuine remorse for the offense”). We find no grounds for challenging
Watters’ sentence.
{¶17} Counsel also requested review of the sufficiency and manifest weight of the
evidence supporting Watters’ conviction. A challenge to the sufficiency of the evidence
raises the issue of “whether the evidence is legally sufficient to support the jury verdict as
a matter of law.” State v. Clinton, 153 Ohio St.3d 422,
2017-Ohio-9423,
108 N.E.3d 1, ¶
165. In reviewing the sufficiency of the evidence, “[t]he relevant inquiry is whether, after
viewing the evidence in a light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime proven beyond a reasonable
doubt.” State v. Jenks,
61 Ohio St.3d 259,
574 N.E.2d 492 (1991), paragraph two of the
syllabus.
{¶18} In contrast to sufficiency, “weight of the evidence addresses the evidence’s
effect of inducing belief.” (Citation omitted.) State v. Wilson, 113 Ohio St.3d 382, 2007-
Ohio-2202,
865 N.E.2d 1264, ¶ 25. An appellate court must consider all the evidence in
the record, the reasonable inferences, the credibility of the witnesses, and whether, “in
resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest
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miscarriage of justice that the conviction must be reversed and a new trial ordered.”
(Citation omitted.) State v. Thompkins, 78 Ohio St.3d 380, 387,
678 N.E.2d 541 (1997).
{¶19} In order to convict Watters of Aggravated Possession of Methamphetamine,
the State had to prove, beyond a reasonable doubt, that he “knowingly … possess[ed]”
methamphetamine.1 R.C. 2925.11(A). The only material issue at trial was whether
Watters possessed the methamphetamine recovered from his truck.
{¶20} 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.” R.C. 2925.01(K).
“Constructive possession exists when an individual knowingly exercises dominion and
control over an object, even though that object may not be within his immediate physical
possession.” (Citation omitted.) State v. Perry, 11th Dist. Lake No. 2021-L-005, 2021-
Ohio-2183, ¶ 27. “The discovery of readily accessible drugs in close proximity to the
accused constitutes circumstantial evidence that the accused was in constructive
possession of the drugs.” (Citation omitted.) State v. Mickey, 12th Dist. Clermont Nos.
CA2019-07-055 and CA2019-07-056, 2020-Ohio-1432, ¶ 27.
{¶21} In the present case, there was sufficient evidence to establish Watters’
constructive possession of the methamphetamine by virtue of the location of the drug in
the console of his truck where he was able to exercise ready dominion and control over
it. State v. Meddock, 2017-Ohio-4414,
93 N.E.3d 43, ¶ 59 (4th Dist.) (although “[a]
defendant’s mere presence in an area where drugs are located does not conclusively
1. The weight and identity of the methamphetamine recovered from Watters’ truck were stipulated to at
trial.
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establish constructive possession, … readily usable drugs found in very close proximity
to a defendant may constitute circumstantial evidence and support a conclusion that the
defendant had constructive possession”) (citation omitted).
{¶22} Moreover, the evidence weighed heavily in favor of the jury’s finding that
Watters knowingly exercised ready dominion and control over the methamphetamine.
There was a pipe used for smoking methamphetamine found between the driver’s seat
and the console dividing the driver’s seat from the passenger’s seat. Detective Gilger
observed Watters “touching that exact area” where the methamphetamine was found
whereas Parker’s hand was inside her bag and he did not see her remove anything from
the bag. Parker was also removed from the truck first so that, from the time the stop was
initiated, she was never alone in the truck. Finally, Watters was smoking a cigarette
during the stop and his package of cigarettes was lying on top of the methamphetamine.
Moreover, we note that Watters need not be the owner or the source of the
methamphetamine in order for his conviction to be sustained. That is, the
methamphetamine could have belonged to Parker and Watters still would have been
found guilty if the jury believed he knowingly exercised dominion and control over it. State
v. Fester, 2021-Ohio-410,
167 N.E.3d 1021, ¶ 58 (12th Dist.) (“[t]wo or more persons may
have possession of an object together if they have the ability to control it, exclusive of
others”) (citation omitted).
{¶23} Accordingly, we find no grounds for challenging Watters’ conviction based
on the sufficiency or manifest weight of the evidence.
{¶24} Finally, as part of this court’s duty to review the entire record, we will
consider briefly the possibility that Watters received ineffective assistance of counsel
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resulting from counsel’s failure to challenge the stop and seizure of the truck and/or
counsel’s trial performance.
{¶25} The legitimacy of the stop cannot be reasonably disputed as Detective
Gilger observed a traffic violation (failure to signal) and determined that the vehicle’s
owner did not have a valid license. State v. Lewis, 11th Dist. Geauga No. 2021-G-0034,
2022-Ohio-3006, ¶ 19 (“[s]everal appellate districts in Ohio have held that an officer has
reasonable suspicion to conduct a stop when he determines the license plate is registered
to a person who is not permitted to drive”); State v. Powell, 3d Dist. Auglaize No. 2-21-
20,
2022-Ohio-882, ¶ 10 (“the failure to activate a turn signal … is a traffic violation that
provides a law enforcement officer ‘with legal justification to initiate a traffic stop’”) (citation
omitted).
{¶26} Nor is there reason to believe that a challenge to the inventory search of the
vehicle would have had a reasonable chance of success. “[A] routine inventory search
of a lawfully impounded vehicle is not unreasonable within the meaning of the Fourth
Amendment when performed pursuant to standard police practice and when the evidence
does not demonstrate that the procedure involved is merely a pretext for an evidentiary
search of the impounded vehicle.” Blue Ash v. Kavanagh, 113 Ohio St.3d 67, 2007-Ohio-
1103,
862 N.E.2d 810, ¶ 11. Here, neither Watters nor Parker had valid driver’s licenses
and the vehicle could not be left on a public roadway. Compare Warren Codified
Ordinance 303.08(a)(1) and (9) (“[p]olice officers are authorized to provide for the removal
of a vehicle … [w]hen any vehicle is left unattended upon any street” and “[w]hen any
vehicle has been operated by any person who is driving without a lawful license or while
his license has been suspended or revoked”). Detective Gilger described the inventory
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search as attendant upon the decision to tow a vehicle. The methamphetamine was
discovered in a part of the truck typically encompassed within the scope of an inventory
search. State v. Mesa, 87 Ohio St.3d 105, 110,
717 N.E.2d 329 (1999) (“consoles …
are areas of a vehicle that are normally part of a standard inventory search”).
{¶27} With respect to the evidence presented at trial, the only witness to testify on
behalf of the State was Detective Gilger. He testified to his own actions and observations
in the course of the traffic stop. The evidence admitted at trial consisted of the video from
Gilger’s dashcam, the methamphetamine, the methamphetamine pipe, and a stipulated
laboratory report from the Bureau of Criminal Investigation confirming the identity and
weight of the methamphetamine recovered from the truck. There were no trial issues
meriting appeal.
{¶28} Having independently reviewed the record, we conclude that the present
appeal is wholly frivolous. Counsel’s motion to withdraw is granted, and the Judgment of
the Trumbull County Court of Common Pleas is affirmed.
MARY JANE TRAPP, J.,
JOHN J. EKLUND, J.,
concur.
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