[Cite as State v. Spencer,
2024-Ohio-5809.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 113667
v. :
JAKE SPENCER, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: December 12, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-22-675832-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Luke Habermehl and Kristen Hatcher,
Assistant Prosecuting Attorneys, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and
Aaron T. Baker, Assistant Public Defender, for appellant.
KATHLEEN ANN KEOUGH, A.J.:
Defendant-appellant, Jake Spencer, appeals from the trial court’s
judgment, rendered after a jury verdict, in which he was found guilty of drug
possession, drug trafficking, possessing criminal tools, and having a weapon while
under disability, and sentenced to a minimum term of eight years in prison and a
maximum term of twelve years. Finding no merit to the appeal, we affirm.
I. Background
A Cuyahoga County Grand Jury indicted Spencer on three counts of
drug possession (heroin, cocaine, and fentanyl), three counts of drug trafficking, one
count of possessing criminal tools, two counts of having a weapon while under
disability, and one count of receiving stolen property. Spencer pleaded not guilty,
and the case proceeded to a jury trial.
Cleveland police detective Cody Sheets testified that he was the lead
investigator on this case, which arose after the Cleveland Police Department Vice
Unit surveilled three properties in Cleveland that were in close proximity: 3601 East
144th Street (“3601”), 3699 East 144th Street (“3699”), and 12500 Harvard Avenue
(the “Harvard Avenue property”). Det. Sheets testified that during his surveillance
of the properties at various times over the course of several weeks, he saw Spencer’s
car parked at 3601, saw him go in and out of 3699 several times, and observed his
car parked at the Harvard Avenue property every night he conducted surveillance.
Cleveland police detective Daniel Dickens testified that he assisted with the
surveillance of the three properties and that he too observed Spencer entering and
exiting 3699 multiple times and saw him entering the side door of 3601. Det.
Dickens said that he did not observe anyone other than Spencer go in and out of
3601 and 3699.
Det. Sheets testified that during his investigation, he learned that
either Spencer or his business, 4th Quarter Property Investments, L.L.C., owned all
three properties. 3601 was vacant and did not have any working utilities; tenants
Carl Lewis and his girlfriend lived at 3699; and Spencer and his girlfriend resided at
the Harvard Avenue property. Det. Sheets testified that he conducted a “trash pull”
at 3699 and found mail addressed to Spencer at the Harvard Avenue address, as well
as miscellaneous phone receipts for “Snake,” which Det. Sheets learned during his
investigation was Spencer’s nickname.
Cleveland police obtained search warrants for 3601, 3699, and the
Harvard Avenue property, which they executed nearly simultaneously on July 26,
2022. Spencer and his girlfriend were at the Harvard Avenue property, where the
police found Spencer’s car in the driveway, $1,761 in cash, two firearms, a digital
scale with suspected drug residue, ammunition, miscellaneous mail, N95 masks, a
money counter, and keys that opened outer and inner doors at 3699 and the side
door of 3601. Spencer admitted owning the firearms, which were discovered in his
bedroom and dresser drawer.
The police also recovered three cell phones from Spencer’s bedroom.
State’s exhibit No. 2004, a report of the “data dump” from one of the phones
conducted by the Ohio Narcotics Intelligence Center revealed more than 55 text
messages from various contacts, all with names such as “Crusty Lip Carol,” “Fred
from the store,” and “Truck Ed.” One text message read “Ken, this Snake. This my
new number.”
Cleveland police sergeant Jared Durichko testified that he assisted
with executing the search warrant at 3699. He said the property is an up-and-down
duplex but was being used as a single-family dwelling. He testified that it was
apparent that the kitchens in both apartments were being used to package and
distribute narcotics because the police found digital scales, baggies, and “quite a bit”
of packaged marijuana in both kitchens. The police also found a scale weight in the
downstairs kitchen; Sgt. Durichko testified that such weights are commonly used by
drug dealers to verify the accuracy of the digital scales. The police also found a box
of N95 masks, which Sgt. Durichko testified are commonly worn by drug dealers
when they are packing or mixing drugs so they do not contaminate themselves. He
testified that the police also found a gift card to Massage Envy with a notation, “To
Jake From Boobs” on it, as well as a bill from Cleveland Public Power addressed to
Spencer at the 3699 address. The police also found two pictures of Spencer in the
attic.
Sgt. Durichko testified that in the downstairs kitchen of 3699, the
police found a DVR that displayed video from surveillance cameras mounted on the
exterior of the house. They also found an alarm in a window that would beep when
it detected motion outside the house or people coming up the driveway.
Sgt. Durichko testified that in his experience involving multi-location
drug trafficking, such as this case, one house is typically the “trap house,” where the
drugs are sold, and another house is the “stash house,” where the drugs are kept. He
also testified that the photos of Spencer found in the attic of 3699 and the mail
addressed to him there suggested more of an interest in the property than mere
ownership.
Cleveland police officer Daniel Hourihan testified that during his
surveillance of 3699, he observed Spencer coming and going to the property in a
black Volkswagen Passat. He also observed Spencer going in the side door of 3601.
Consistent with Det. Sheets’s and Det. Durichko’s testimony, Officer Hourihan said
that over multiple days of surveillance, he did not observe anyone other than
Spencer going in or leaving from 3601.
Officer Hourihan testified that he helped execute the search warrant
at 3601, which he was “clearly vacant.” He said the countertops in the kitchen were
covered in cocaine-residue particles and said the police found a strainer, a drug
press, a large amount of plastic bags, a scale, and fentanyl in the kitchen. The police
also found a blender with white powder residue in it, small baggies of crack cocaine,
a toothbrush with suspected drug residue, a measuring cup with suspected drug
residue, a Pyrex dish with suspected drug residue, credit cards, and multiple bags of
cocaine, heroin, and fentanyl in the kitchen. Finally, the police found a
semiautomatic loaded gun inside a plastic bag in a kitchen cabinet. The record
reflects that the drugs and many of the items were sent for drug testing, and the
parties stipulated to the results of that testing, which indicated that the drugs found
inside 3601 and 3699 were narcotics and there was drug residue on the items.
The defense presented no evidence. The trial court denied Spencer’s
Crim.R. 29(A) motion for acquittal, and the jury subsequently found him guilty of
drug trafficking, drug possession, possessing criminal tools, and having a weapon
while under disability but not guilty of receiving stolen property. The trial court
sentenced him to a minimum term of eight years in prison and a maximum term of
twelve years. This appeal followed.
II. Law and Analysis
A. Sufficiency of the Evidence
The jury found Spencer guilty on Counts 1, 3, and 5 of drug trafficking
in violation of R.C. 2925.03(A)(2) and Counts 2, 4, and 6 of drug possession in
violation of R.C. 2925.11. At sentencing, the State conceded that Counts 1, 3, and 5
merged as allied offenses with Counts 2, 4, and 6, and elected to proceed to
sentencing on Counts 1, 3, and 5, the drug trafficking offenses.
In his first assignment of error, Spencer contends that the trial court
erred in denying his Crim.R. 29(A) motion to dismiss Counts 1 through 6 of the
indictment. We need not consider Spencer’s argument regarding the sufficiency of
the evidence on Counts 2, 4, and 6, however, because notwithstanding the jury’s
finding of guilt, Spencer was not convicted of those counts. A conviction consists of
a guilty verdict and the imposition of a sentence or penalty. State v. Whitfield, 2010-
Ohio-2, ¶ 12. The drug possession counts that merged into the drug trafficking
counts at sentencing are not convictions because there was no sentence on those
counts, and therefore, we cannot individually review the evidence supporting those
findings of guilt. State v. Worley, 2016-Ohio-2722, ¶ 23 (8th Dist.), citing State v.
Williams,
2012-Ohio-4693, ¶ 54 (4th Dist.), and State v. McKinney, 2008-Ohio-
6522, ¶ 39 (10th Dist.) (only reviewing the sufficiency of the evidence for the crime
for which sentence was imposed and not the counts the merged into that crime). See
also State v. Ramos,
2016-Ohio-7685, ¶ 14 (8th Dist.) (“When counts in an
indictment are allied offenses, and there is sufficient evidence to support the offense
on which the state elects to have the defendant sentenced, the appellate court need
not consider the sufficiency of the evidence on the count that is subject to merger
because any error would be harmless.”). Accordingly, we will review the sufficiency
of the evidence supporting Spencer’s convictions for drug trafficking on Counts 1, 3,
and 5.
An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince the average
mind of the defendant’s guilt beyond a reasonable doubt. State v. Murphy, 2001-
Ohio-112. “The 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 (1991), paragraph two of the syllabus.
Spencer was convicted in Counts 1, 3, and 5 of drug trafficking in
violation of R.C. 2925.03(A)(2), which provides:
No person shall knowingly prepare for shipment, ship, transport,
deliver, prepare for distribution, or distribute a controlled substance or
a controlled substance analog when the offender knows or has
reasonable cause to believe that the controlled substance or a
controlled substance analog is intended for sale or resale by the
offender or another person.
To prove drug trafficking, the State must show that the offender
possessed the drugs because “possession is a requisite element of drug trafficking
under R.C. 2925.03(A)(2).” State v. Williams, 2023-Ohio-4667, ¶ 11 (1st Dist.),
citing State v. Arrington,
64 Ohio App.3d 654, 656 (8th Dist. 1990).
Under R.C. 2925.01(K), “possess” or “possession” is defined as
“having control over a thing or substance, but may not be inferred from mere access
to the thing or substance through ownership or occupation of the premises upon
which thing or substance is found.” Possession may be actual or constructive. State
v. Haynes, 25 Ohio St.2d 264, 269-270 (1971). Constructive possession requires
evidence that an individual exercised, or had the ability to exercise, dominion and
control over an object, even though that object may not be within his immediate
physical possession. State v. Tyler,
2013-Ohio-5242, ¶ 16 (8th Dist.), citing State v.
Wolery,
46 Ohio St.2d 316, 329 (1976). Presence, “coupled with another factor or
factors probative of dominion or control over the contraband may establish
constructive possession.” State v. Devaughn,
2020-Ohio-651, ¶ 33 (1st Dist.).
Possession is often established by circumstantial evidence, State v. Hankerson,
70
Ohio St.2d 87, 92 (1982), and must be determined “from all the attendant facts and
circumstances available.” State v. Teamer,
82 Ohio St.3d 490, 492 (1998).
Spencer does not dispute that the police found numerous items used
in drug trafficking, such as digital scales for weighing drugs, baggies to package
drugs, N95 masks, a money counter, cell phones with cryptic text messages, and
bags of drugs in the three properties. Nevertheless, he contends the evidence was
insufficient to support his convictions because the State did not present sufficient
evidence that he possessed the drugs and items related to drug trafficking found in
3601. We disagree.
While we recognize that mere access to a premises is not enough to
infer the possession of drugs and drug-trafficking related items found therein, the
State’s evidence, if believed, is sufficient to demonstrate that Spencer exercised
dominion and control of 3601, reflecting constructive possession of the drugs and
other items the police found during execution of the search warrants.
As conceded by Spencer, either he or his LLC owned all three
properties. (Appellant’s brief, p. 1). The police found keys at the Harvard Avenue
property, where Spencer lived, that opened the doors to both 3601 and 3699. Det.
Hourihan testified that he saw Spencer go into the houses at both locations.
Importantly, both Det. Hourihan and Det. Dickens testified that during multiple
days of surveillance at various times, they did not see anyone other than Spencer go
in and out of 3601. The State produced evidence that there were no vacant or
boarded-up windows at 3601 to suggest that anyone else had access to the property;
it also produced evidence that the other two owners of 3601 were deceased.
Accordingly, there was sufficient evidence that Spencer had dominion and control
over the premises and constructive possession of the drugs and items related to drug
trafficking found in 3601.
With regard to 3699, we note that exclusive control of the premises is
not required. State v. Howard, 2005-Ohio-4007, ¶ 15 (8th Dist.). “‘All that is
required for constructive possession is some measure of dominion or control over
the drugs in question, beyond mere access to them.’”
Id., quoting In re Farr,
1993
Ohio App. LEXIS 5394, *16 (10th Dist. Nov. 9, 1993). Furthermore, an individual
need not live at a particular address in order to possess drugs found inside. State v.
Edwards,
2009-Ohio-4365, ¶ 16 (8th Dist.). Photographs of Spencer, mail
addressed to him at the Harvard Avenue address, and a gift card to Massage Envy
for Spencer were found at 3699, all of which, as Det. Hourihan testified, point to
more than mere ownership of the property. Furthermore, Det. Hourihan saw
Spencer open the side door at 3601 with a key and saw him travel between 3601 and
3699 in his black Volkswagen Passat. He also observed cars pull up to 3699 and saw
people “interacting” with Spencer in the driveway.
Sgt. Durichko testified that in his experience with drug cases
involving multiple locations, one location is typically used as a stash house, where
the drugs are kept, and another location is used as the trap house, where the drugs
are sold. The State’s evidence, considered in a light most favorable to the
prosecution, demonstrates that is what was happening in this case; Spencer kept
most of his drugs at 3601, a vacant house that only he had access to, and then sold
them at 3699.
We find that the State produced sufficient evidence that Spencer
exercised dominion and control over all three properties and constructive
possession of the drugs and items related to drug trafficking found therein.
Accordingly, Spencer’s convictions for drug trafficking are supported by sufficient
evidence, and the first assignment of error is overruled.
B. Manifest Weight of the Evidence
In his second assignment of error, Spencer contends, in reliance on
the same arguments asserted regarding the sufficiency of the evidence (see
Appellant’s Brief, p. 6), that his convictions in Counts 1 through 6 are against the
manifest weight of the evidence. As discussed above, Spencer was not convicted of
Counts 2, 4, and 6; accordingly, we consider only whether his convictions on Counts
1, 3, and 5 were against the manifest weight of the evidence.
A manifest weight challenge questions whether the State met its
burden of persuasion at trial. State v. Hill, 2013-Ohio-578, ¶ 32 (8th Dist.). To
determine whether a conviction is against the manifest weight of the evidence, the
reviewing court must look at the entire record, weigh the evidence and all reasonable
inferences, consider the credibility of the witnesses, and determine whether in
resolving conflict in the evidence, the trier of fact clearly lost its way and created
such a miscarriage of justice that the conviction must be reversed and a new trial
ordered. State v. Thompkins,
78 Ohio St.3d 380, 387 (1997). When considering a
claim that a conviction is against the manifest weight of the evidence, an appellate
court sits as a “thirteenth juror” and may disagree with the factfinder’s resolution of
the conflicting testimony.
Id. We will reverse a conviction as against the manifest
weight of the evidence “‘only in the exceptional case in which the evidence weighs
heavily against the conviction.’” State v. McLoyd,
2023-Ohio-4306, ¶ 40 (8th Dist.),
quoting
Thompkins at 387.
This is not that exceptional case. After weighing the evidence and all
reasonable inferences, and considering the credibility of the witnesses and resolving
any conflicts in the evidence, we find that the jury did not lose its way in convicting
Spencer of drug trafficking. The evidence produced by the State at trial clearly
established that Spencer constructively possessed the drugs and other items
indicative of drug trafficking the police found at all three properties and that he was
engaged in drug trafficking. The second assignment of error is therefore overruled.
C. Ineffective Assistance of Counsel
In his third assignment of error, Spencer contends that his counsel
was ineffective for failing to object to various evidence at trial.
The Sixth Amendment to the United States Constitution and Article
I, Section 10 of the Ohio Constitution provide that defendants in all criminal
proceedings shall have the assistance of counsel for their defense. The United States
Supreme Court has recognized that “the right to counsel is the right to effective
assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984). To
establish ineffective assistance of counsel, a defendant must demonstrate that
counsel’s performance fell below an objective standard of reasonable performance
and that he was prejudiced by that deficient performance, such that but for counsel’s
error, the result of the proceedings would have been different. State v. Drummond,
2006-Ohio-5084, ¶ 205. Failure to show either element is fatal to the claim. State
v. Anderson,
2018-Ohio-2013, ¶ 23 (4th Dist.).
Judicial scrutiny of a lawyer’s performance must be highly
deferential. State v. Sallie, 81 Ohio St.3d 673, 674 (1998). “A court must indulge a
strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the presumption that,
under the circumstances, the challenged action might be considered sound trial
strategy.”
Strickland at 689. Debatable trial tactics do not establish ineffective
assistance of counsel. State v. Conway,
2006-Ohio-2815, ¶ 101.
Spencer contends that defense counsel was ineffective because he did
not object when the State introduced evidence that either had no foundation or was
hearsay. Specifically, he contends there was no foundation for Det. Sheets’s
testimony that the other two owners of 3601 were deceased and Spencer’s LLC now
solely owned the property, and the detective’s testimony that a prior owner of 3601,
Leon Stokes, had dementia and was in a nursing home. He argues that this
testimony was also hearsay. Spencer likewise contends there was no foundation for
Sgt. Durichko’s testimony that scales and plastic bags found at 3699 contained
narcotic residue and that the testimony was hearsay. He also contends that the State
improperly referred to him as “Snake” at trial, thereby implying that one of the cell
phones found by the police containing texts and names of individuals indicative of
drug dealing belonged to him. He argues that because the State did not produce any
evidence that he sold drugs, the jury could have only concluded that he was a drug
dealer based on this evidence, which he contends was improperly admitted without
objection. Spencer’s argument is without merit.
Our review of the record demonstrates there was sufficient
foundation for the testimony. Det. Sheets testified that he was the lead investigator
on the case and his testimony regarding who owned each of the three properties,
including that the other two owners of 3601 were deceased and that Leon Stokes was
a prior owner who now had dementia and was in a nursing home, was based on his
investigation of public records relating to the property. Det. Durichko’s testimony
about the items recovered from 3699 and his observation of narcotic residue on the
scales and items found there were based on his personal observations at the property
during the execution of the search warrant. Moreover, Spencer’s argument that
testimony about the narcotic residue was improper ignores the defense’s stipulation
to the results of drug testing conducted on the items, which indicated that the drugs
were narcotics and the items were positive for drug residue. With respect to whether
any of the testimony was hearsay, Spencer only asserts that the testimony to which
he now objects was improper hearsay; he offers no argument to support his
assertion and we will not make his argument for him. DeMeo v. Provident Bank,
2008-Ohio-2936, ¶ 59 (8th Dist.) (an appellate court may disregard an assignment
of error where a party provides no argument on that issue).
Spencer’s assertion that defense counsel should have objected to the
State’s use of his nickname at trial is also without merit. Det. Sheets testified that
he learned during his investigation that Spencer’s nickname is Snake. Thus, the text
on one of the cellphones found at the Harvard Avenue property, where Spencer
lived, stating, “Ken, this Snake. This my new number.” clearly established that the
cellphone belonged to Spencer, and accordingly, the State could properly argue to
the jury that the texts and contact names such as “Crusty Lip Carol,” “Fred from the
store,” and “Truck Ed” found on the phone indicated that Spencer was selling drugs.
Furthermore, Det. Hourihan testified that he observed cars pull up to 3699 and saw
people “interacting” with Spencer in the driveway. In short, the evidence produced
by the State demonstrated that Spencer was storing drugs at 3601 and selling them
at 3699.
Because Spencer failed to establish that his counsel’s performance fell
below an objective standard of reasonableness and that he was prejudiced thereby,
we find no ineffective assistance of counsel. The third assignment of error is
therefore overruled.
Judgment affirmed.
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 appeal 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.
KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE
EILEEN A. GALLAGHER, J., and
ANITA LASTER MAYS, J., CONCUR
