[Cite as State v. Harris,
2024-Ohio-5603.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 113814
v. :
KEITH HARRIS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: November 27, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-23-683884-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney and Britany Fletcher, Assistant Prosecuting
Attorney, for appellee.
Susan J. Moran, for appellant.
EMANUELLA D. GROVES, J.:
Defendant-appellant, Keith Harris (“Harris”), appeals his convictions
of multiple drug-related offenses arguing the convictions are against the manifest
weight of the evidence. For the reasons set forth below, we affirm.
Procedural Background and Facts
On August 15, 2023, Harris was indicted on seven drug-related
offenses: drug trafficking (cocaine) in violation of R.C. 2925.03(A)(2), a felony of
the second degree (Count 1); drug possession (cocaine) in violation of R.C.
2925.11(A) a felony of the second degree (Count 2); drug trafficking (phencyclidine
“PCP”) in violation of R.C. 2925.03(A)(2), a felony of the third degree (Count 3);
drug possession (PCP) in violation of R.C. 2925.11(A) a felony of the third degree
(Count 4); drug trafficking (fentanyl-related compound) in violation of R.C.
2925.03(A)(2), a felony of the fourth degree (Count 5); drug possession (fentanyl-
related compound) in violation of R.C. 2925.11(A) a felony of the fourth degree
(Count 6); possession of criminal tools, in violation of R.C. 2923.24(A), a felony of
the fifth degree (Count 7) and driving under the influence, in violation of R.C.
4511.19(A)(1)(a), a misdemeanor of the first degree (Count 8). Harris pleaded not
guilty. On January 31, 2024, he waived his right to a jury and the trial court
conducted a bench trial.
The trial revealed the following facts: On June 18, 2023,
Independence Patrolman Evan Waidley (“Ptl. Waidley”) was dispatched to I-480 in
response to a call by a construction worker that a vehicle was stopped in the middle
of the highway causing a hazard. Upon arrival, other officers were directing the
driver of the vehicle, Harris, out of the vehicle and to a safe space off of the highway.
Ptl. Waidley attempted to speak with Harris who exhibited signs of impairment.
Harris was making motions and chewing on his lip in a manner consistent with a
person under the influence of PCP. Additionally, Ptl. Waidley noted Harris had a
strong potent formaldehyde odor, similar to PCP, on his person.
After attempting to speak to Harris, Ptl. Waidley assisted with the
inventory of the vehicle Harris had occupied. As a result of the search, officers
found, in plain view in the cup holder, a vial containing a yellow liquid, consistent
with PCP, and a wet cigarette. A crown royal bag in the center console was found to
contain substances consistent with crack cocaine and fentanyl, as well as a digital
scale.
At the end of the trial, the court took the case under advisement. On
February 6, 2024, the trial court rendered its verdict and found Harris guilty of
Counts 2, 4, 6, 7, and 8 and not guilty of the trafficking Counts: 1, 3, and 5.
Subsequently, Harris was sentenced to an aggregate indefinite prison sentence of a
minimum of two years to a maximum of three years. Harris appeals presenting this
sole assignment of error for our review.
Assignment of Error
Appellant’s convictions are against the manifest weight of the evidence
depriving Mr. Harris of due process under the law.
Law and Analysis
In his assignment of error, Harris claims that his convictions were
against the manifest weight of the evidence because he did not knowingly possess
the contraband in the vehicle. As a preliminary matter, we must determine which
charges Harris is challenging. Harris was convicted of possessing both drugs and
criminal tools, as well as operating a vehicle while intoxicated. However, only drug
possession charges references “knowingly” as an element. Neither possession of
criminal tools nor operating a vehicle under the influence requires a mens rea of
knowingly. See State v. Jackson, 2009-Ohio-733 ¶ 21 (8th Dist.) (culpable mental
state for possession of criminal tools is purposefully); State v. Andera, 2010-Ohio-
3304, ¶ 20 (8th Dist.) (operating a vehicle under the influence is a strict liability
offense).
Drug possession in violation of R.C. 2925.11(A) provides, “No person
shall knowingly obtain, possess, or use a controlled substance or a controlled
substance analog.” Therefore, Harris’s other convictions are not subject to our
review. For the reasons that follow, we affirm Harris’ drug possession convictions.
“[W]eight of the evidence involves the inclination of the greater
amount of credible evidence.” It concerns “the evidence’s effect of inducing
belief.” State v. Wilson, 2007-Ohio-2202, ¶ 25, citing State v. Thompkins,
78 Ohio
St.3d 380, 386-387 (1997). The reviewing court must consider all the evidence in
the record, the reasonable inferences, and the credibility of the witnesses to
determine ‘“whether in resolving conflicts in the evidence, the factfinder clearly lost
its way and created such a manifest miscarriage of justice that the conviction must
be reversed and a new trial ordered.’” State v. Harris,
2021-Ohio-856, ¶ 32 (8th
Dist.), citing Thompkins at 387, quoting State v. Martin,
20 Ohio App.3d 172 (1st
Dist. 1983).
Unless the record affirmatively demonstrates otherwise, in a bench
trial court, the trial court is presumed to know and apply the law correctly. State v.
Kilbane, 2019-Ohio-863, ¶ 15 (8th Dist.), citing State v. Shropshire, 2016-Ohio-
7224, ¶ 37 (8th Dist.).
Harris claimed he could not have knowingly possessed the
contraband found inside the center console because the vehicle was not his.
However, Harris concedes the wet cigarette and PCP found in plain view may more
easily be said to have been possessed by him. A person has knowledge of
circumstances when he or she is aware that such circumstances probably exist. R.C.
2901.22(B). Whether a defendant knowingly possessed a controlled substance is
determined from all the available attendant facts and circumstances, State v.
Alexander, 2009-Ohio-597, ¶ 21 (8th Dist.), citing State v. Teamer,
82 Ohio St.3d
490, 492 (1998).
It is well settled that possession may be either constructive or
actual. State v. Natale, 2011-Ohio-3974, ¶ 12 (8th Dist.). Ownership or physical
control is actual possession, whereas constructive possession occurs when a person
knowingly exercises dominion and control over an object, despite that the object
may not be within the person’s immediate physical possession.
Id., citing State v.
Brown,
2007-Ohio-527 (8th Dist.). State v. Hankerson,
70 Ohio St.2d 87 (1982).
Both constructive knowledge and possession may be established solely through
circumstantial evidence.
Id., citing State v. Haynes,
25 Ohio St.2d 264 (1971); State
v. Trembly,
137 Ohio App.3d 134 (8th Dist. 2000).
This court has repeatedly recognized that readily usable drugs found
in very close proximity to a defendant constitutes circumstantial evidence that may
support a conclusion that the defendant had constructive possession of such drugs.
Alexander at ¶ 23, citing State v. Trembly,
137 Ohio App.3d 134, 141 (8th Dist.
2000); State v. Barr,
86 Ohio App.3d 227 (8th Dist. 1993); State v. Pruitt,
18 Ohio
App.3d 50 (8th Dist. 1984).
Here, Harris was in a vehicle having consumed PCP. The PCP was
next to him in the cup holder in the center console, while additional drugs were
inside the center console. Given these facts, the weight of the evidence clearly
induces the belief that Harris knowingly possessed both the drugs in the cup holder
and inside the console, both being in such close proximity to him. Such a finding
does not establish that the factfinder clearly lost its way and created a manifest
miscarriage of justice.
Therefore, Harris’ argument is unpersuasive. Accordingly, we affirm
Harris’ convictions.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending is terminated. Case remanded to
the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
______________________
EMANUELLA D. GROVES, JUDGE
MICHELLE J. SHEEHAN, P.J., and
WILLIAM A. KLATT, J.,* CONCUR
(*Sitting by assignment: William A. Klatt, J., retired, of the Tenth District Court
of Appeals.)
