Logan v. Cox, s. 92

• Decision Date: 10 August 1993
• Docket Number: Nos. 92,s. 92
• Citation: 89 Ohio App.3d 349,624 N.E.2d 751
• Parties: City of LOGAN, Appellee, v. COX, Appellant. CA 20, 92 CA 25.
• Court: Ohio Court of Appeals

Page 349

89 Ohio App.3d 349

624 N.E.2d 751

City of LOGAN, Appellee, v. COX, Appellant.

Nos. 92 CA 20, 92 CA 25.

Court of Appeals of Ohio, Fourth District, Hocking County.

Decided Aug. 10, 1993.

Larry E. Beal, City Law Director, Logan, for appellee.

Richard M. Waller, Logan, for appellant.

STEPHENSON, Judge.

This is an appeal from judgments of conviction and sentence entered by the Hocking County Municipal Court finding Rudy C. Cox, defendant below and appellant herein, guilty of two counts of underage possession of alcohol in violation of Section 91.021(B) of the Codified Ordinances of the City of Logan, Ohio. ¹ Appellant assigns the following errors in case No. 92 CA 20:

I. "The trial court erred in overruling defendant's motion to dismiss for failure to prove the offense occurred within Hocking County (venue)."

II. "The trial court erred in allowing the state to amend its complaint to 'possession of an alcoholic beverage' and the evidence failed to prove possession of an alcoholic beverage beyond a reasonable doubt."

III. "The trial court erred in failing to suppress the defendant's statements and the evidence seized from the defendant, in that the state failed to prove that the defendant made a knowing and voluntary waiver of his Fifth and Sixth Amendment U.S. constitutional rights."

Appellant assigns the following errors in case No. 92 CA 25:

I. "The trial court erred in overruling defendant's motion to dismiss for lack of probable cause to question and arrest the defendant."

II. "The trial court erred in overruling defendant's motion to dismiss for failure to prove the offense occurred within Hocking County (venue)."

III. "The trial court erred in allowing the state to amend its complaint to 'possession of an alcoholic beverage' and the evidence failed to prove possession of an alcoholic beverage beyond a reasonable doubt."

A review of the record reveals the following facts pertinent to this appeal. On June 21, 1992, Patrolman Mike Walton of the Logan Police Department was dispatched to a domestic call at the Elm Court Apartments in Logan, Ohio. Appellant led Walton to an apartment where a woman lay unconscious. Shortly thereafter, Patrolman Brian Lowes arrived on the scene. Walton asked that Lowes take appellant and another subject to the police station to "get statements from them as to what happened at the scene." As they were leaving, Lowes informed Walton there was possibly an odor of an alcoholic beverage on appellant's breath. Walton spoke with appellant and ascertained that appellant did have an odor of alcohol on his breath. Lowes then transported appellant and the other witness to the police station. Lowes read appellant his Miranda rights and appellant executed a written waiver. Appellant was then given a statement form.

Lowes noticed from the date of birth appellant had written at the top of the form that appellant was only twenty years old. Upon completion of the statement, Lowes advised appellant that he smelled an odor of alcoholic beverage on appellant's breath. Lowes then administered a gaze nystagmus test, obtaining "all six signs." Lowes informed appellant he was going to have appellant take an intoxilyzer test and that appellant would be charged with underage consumption of alcohol. Appellant tested .208 on the intoxilyzer.

On June 23, 1992, appellant was charged with underage consumption of alcohol. On July 15, 1992, appellant filed a "motion to suppress evidence and defendant's involuntary statements," seeking the suppression of "any and all involuntary statements made by him to any and all law enforcement officers on or about June 21, 1992 and thereafter" and the results of the intoxilyzer test results. The matter proceeded to trial on August 11, 1992. The court orally overruled appellant's motion to suppress and the matter proceeded for a hearing on the merits. During closing argument, the city amended the charge to underage possession of alcohol. By entry dated August 11, 1992, appellant was found guilty of underage possession of alcohol in violation of Logan City Ordinance 91.021(B). Appellant was sentenced to thirty days in jail, twenty-five of which were suspended, and a $100 fine. Appellant was further sentenced to three years' probation. This is case No. 92 CA 20.

Four days after this incident, on June 25, 1992, Patrolman Jason Wallace of the Logan Police Department stopped the vehicle in which appellant was a passenger. Wallace had appellant blow into his face and Wallace detected an odor of alcoholic beverage. Wallace then arrested appellant and read appellant his Miranda rights. Appellant tested .15 on the intoxilyzer.

Appellant was again charged with underage consumption of alcohol in violation of Logan City Ordinance 91.021(B). On July 17, 1992, appellant filed a motion to suppress any statements made to law enforcement officers on June 25, 1992 and to suppress the results of the intoxilyzer test on the grounds that he had not been advised of his Miranda rights. On August 3, 1992, appellant filed a "motion to dismiss" on the grounds that "the arresting officer did not have probable cause to stop nor arrest the Defendant * * *." A hearing was held on appellant's motions on August 11, 1992, at which time appellant conceded he had been given his Miranda rights. At the close of the hearing, the court orally overruled appellant's motion to dismiss, finding the officer's stop of the vehicle to be valid.

On August 20, 1992, appellant filed a "motion to dismiss complaint" on the grounds that the city would be unable to prove venue and/or possession of alcohol. The matter was set for a hearing on appellant's motion on September 29, 1992, at which time appellant indicated he would proceed directly to a trial on the merits. ² During the course of the hearing, the city amended its complaint to charge appellant with underage possession of alcohol, rather than consumption. Appellant's counsel indicated he had no objection to the amendment. At the close of the hearing, and by entry dated September 29, 1992, appellant was found guilty of underage possession of alcohol and sentenced to thirty days in jail and five years' probation. By entry of that same date, the court modified appellant's sentence to suspend the jail time. Appellant filed a timely notice of appeal. This is case No. 92 CA 25.

We hereby sua sponte consolidate case Nos. 92 CA 20 and 92 CA 25 for decision. See App.R. 3(B).

Initially, we address appellant's assignments of error which assert that the court erred in permitting amendment of the charge to "possession" and that the evidence was insufficient to prove possession. This identically worded assignment of error is appellant's Assignment of Error No. Two in case No. 92 CA 20 and Assignment of Error No. Three in case No. 92 CA 25. While appellant assigns as error the amendment of the complaint from a charge of underage consumption of alcohol to a charge of underage possession of alcohol, the essence of appellant's argument is that the presence of alcohol in one's system does not constitute possession of that alcohol. Appellant asserts that once he had consumed the alcohol, he no longer had possession or control of the alcoholic beverage. Appellee contends that the presence of alcohol in one's system is evidence of prior possession.

Resolution of this matter turns on the meaning of the term "possess." Logan City Ordinance 91.021 is patterned after, and is substantially equivalent to, R.C. 4301.632. Both the ordinance and the statute proscribe the possession of any beer or intoxicating liquor by persons under twenty-one years of age. Neither provision defines the term "possess" as it is used therein. R.C. 1.42 provides that words shall be read in context and construed according to rules of grammar and usage. Words that have acquired a technical or particular meaning shall be construed accordingly.

The American Heritage Dictionary (2 College Ed.1985) 967, provides, inter alia, the following definition of "possess": "to gain or exert influence or control over * * *." Black's Law Dictionary (6 Ed.1991) 806, defines "possess" as follows:

"To occupy in person; to have in one's actual and physical control; to have the exclusive detention and control of; to have and hold as property; to have a just right to; to be master of; to own or be entitled to.

"Term 'possess,' under narcotic drug laws, means actual control, care and management of the drug. Defendant 'possesses' controlled substance when defendant knows of substance's presence, substance is immediately accessible, and defendant exercises 'dominion or control' over substance."

Similarly, R.C. 2925.01(L), which applies to drug offenses, defines "possess" or "possession" as "having control over a thing or substance * * *." See, also, State v. Laukert (1989), 63 Ohio App.3d 64, 577 N.E.2d 1148.

The parties herein have cited no authority in support of their respective arguments on appeal. While this does appear to be a matter of first impression in this state, our own research reveals copious authority from other jurisdictions where this issue has been addressed. In State v. Hornaday (1986), 105 Wash.2d 120, 713 P.2d 71, the Supreme Court of Washington held that "possession" of liquor should not be construed to include liquor which has been assimilated by the body. The Hornaday court reasoned that once alcohol is within a person's system, the power to control, possess, use or dispose of it is at an...