State v. Foreman
| Decision Date | 01 June 2020 |
| Docket Number | NO. 13-19-01,13-19-01 |
| Court | Ohio Court of Appeals |
| Parties | STATE of Ohio, Plaintiff-Appellee, v. Kelly A. FOREMAN, Defendant-Appellant. |
{¶1} Defendant-appellant, Kelly A. Foreman ("Foreman"), appeals the January 18, 2019 judgment entry of sentence of the Seneca County Court of Common Pleas. For the reasons that follow, we affirm.
{¶2} Foreman gave birth to J.B. on March 15, 2018. (Nov. 26, 2018 Tr. at 10). After J.B. exhibited symptoms of neonatal-abstinence syndrome, he was tested for the presence of illegal substances. (Id. at 12-13). J.B.'s toxicology report revealed the presence of cocaine in his urine, cocaine in the umbilical-cord tissue, and cocaine, marijuana, amphetamines, and buprenorphine in his meconium. (Id. at 15). On July 25, 2018, the Seneca County Grand Jury indicted Foreman on one count of possession of cocaine in violation of R.C. 2925.11(A), (C)(4)(a), a fifth-degree felony. (Doc. No. 1). On July 27, 2018, Foreman appeared for arraignment and entered a plea of not guilty. (Doc. No. 6).
{¶3} The case proceeded to a bench trial on November 26, 2018. (Nov. 26, 2018 Tr. at 1). At the conclusion of all evidence, the trial court found Foreman guilty of the count of the indictment. (Doc. No. 24). On January 17, 2019, the trial court sentenced Foreman to three years of community-control sanctions. (Doc. No. 25).
{¶4} Foreman filed her notice of appeal on January 31, 2019. (Doc. No. 30). She raises two assignments of error for our review, which we will discuss together.
The trial court erred in denying the Appellant's Ohio Crim. R. 29 Motion to Dismiss because the court lacked jurisdiction over the State's case-in-chief as there was insufficient evidence presented in the record that Appellant ingested, used, controlled, or otherwise possessed Cocaine-either actually or constructively – in Seneca County, Ohio in violation of R.C.§ 2925.11(A)(1)(c) [sic].1
Assignment of Error No. II
The evidence was insufficient as a matter of law, or alternatively the trial court ruled against the manifest weight of the evidence in finding that Appellant unlawfully possessed cocaine in violation of R.C.§ 2925.11(A)(1)(c) [sic] because there was no evidence presented in the record that Appellant ingested, used, controlled, or otherwised possessed – either actually or constructively – in Seneca Count, Ohio and thus the Court lacked jurisdiction over the matter.
{¶5} In her assignments of error, Foreman argues that her possession-of-cocaine conviction is based on insufficient evidence and is against the manifest weight of the evidence. In particular, she contends that the State failed to produce sufficient evidence to establish Seneca County as the proper venue, and therefore, the trial court erred by denying her Crim.R. 29 motion for acquittal. Foreman also argues that the evidence presented at trial weighs against the conclusion that she knowingly possessed cocaine in Seneca County.
{¶6} Manifest "weight of the evidence and sufficiency of the evidence are clearly different legal concepts." State v. Thompkins , 78 Ohio St.3d 380, 389, 678 N.E.2d 541 (1997). Thus, we address each legal concept individually.
{¶7} "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. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, superseded by state constitutional amendment on other grounds , State v. Smith , 80 Ohio St.3d 89, 102, 684 N.E.2d 668 (1997), fn. 4. See State v. Armengau , 10th Dist. Franklin No. 18AP-276, 2019-Ohio-1010, 2019 WL 1313217, ¶ 14 (), quoting State v. Hernandez , 10th Dist. Franklin No. 09AP-125, 2009-Ohio-5128, 2009 WL 3090423, ¶ 6, and citing State v. Tenace , 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37 and State v. Hubbard , 10th Dist. Franklin No. 11AP-945, 2013-Ohio-2735, 2013 WL 3341171, ¶ 16 ; State v. Lightner , 3d Dist. Hardin No. 6-08-11, 2009-Ohio-544, 2009 WL 295407, ¶ 37, citing State v. Carter , 72 Ohio St.3d 545, 553, 651 N.E.2d 965 (1995). Accordingly, "[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." Jenks at paragraph two of the syllabus. "In deciding if the evidence was sufficient, we neither resolve evidentiary conflicts nor assess the credibility of witnesses, as both are functions reserved for the trier of fact." State v. Jones , 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-4775, 2013 WL 5864591, ¶ 33, citing State v. Williams , 197 Ohio App.3d 505, 2011-Ohio-6267, 968 N.E.2d 27, ¶ 25 (1st Dist.). See also State v. Berry , 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, 2013 WL 2638704, ¶ 19 (), citing Thompkins at 386, 678 N.E.2d 541.
{¶8} On the other hand, in determining whether a conviction is against the manifest weight of the evidence, a reviewing court must examine the entire record, " ‘weigh[ ] the evidence and all reasonable inferences, consider[ ] the credibility of witnesses and determine[ ] whether in resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.’ " Thompkins at 387, 678 N.E.2d 541, quoting State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). A reviewing court must, however, allow the trier of fact appropriate discretion on matters relating to the weight of the evidence and the credibility of the witnesses. State v. DeHass , 10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967). When applying the manifest-weight standard, "[o]nly in exceptional cases, where the evidence ‘weighs heavily against the conviction,’ should an appellate court overturn the trial court's judgment." State v. Haller , 3d Dist. Allen, 2012-Ohio-5233, 982 N.E.2d 111, ¶ 9, quoting State v. Hunter , 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 119.
{¶9} Foreman was convicted of possession of cocaine in violation of R.C. 2925.11, which provides, in its relevant part, "[n]o person shall knowingly obtain, possess, or use a controlled substance or a controlled substance analog." R.C. 2925.11(A) (Sept. 14, 2016) (current version at R.C. 2925.11(A) (Mar. 22, 2019).
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. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person subjectively believes that there is a high probability of its existence and fails to make inquiry or acts with a conscious purpose to avoid learning the fact.
{¶10} " ‘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." R.C. 2925.01(K) (Sept. 29, 2017) (current version at R.C. 2925.01(K) (Oct. 17, 2019). "The issue of whether a person charged with drug possession knowingly possessed a controlled substance ‘is to be determined from all the attendant facts and circumstances available.’ " State v. Brooks , 3d Dist. Hancock No. 5-11-11, 2012-Ohio-5235, 2012 WL 5507092, ¶ 45, quoting State v. Teamer , 82 Ohio St.3d 490, 492, 696 N.E.2d 1049 (1998).
{¶11} At trial, the State presented the testimony of Dr. Christian Meade ("Dr. Meade"), a general pediatrician at Tiffin Mercy Hospital, who treated J.B. after his birth. (Id. at 10). Dr. Meade identified State's Exhibit 1 as a copy of J.B.'s toxicology-screening results. (Id. at 14); (Doc. No. 1). Dr. Meade testified that the results of J.B.'s toxicology-screening reflect that (as relevant to this case) cocaine was discovered in J.B.'s umbilical cord, urine, and meconium. (Id. at 15-16). Dr. Meade further testified that the (Id. at 16). Dr. Meade clarified that a fetus accumulates the substances "[t]hrough the placenta from the mother" and testified State's Exhibit 1 further reflects that "[d]etection of drugs in umbilical cord tissue is intended to reflect maternal drug use during pregnancy." (Id. ); (State's Ex. 1).
{¶12} Next, Megen Steyer ("Steyer"), a protective-services caseworker for Seneca County Job and Family Services, testified that she initiated an investigation after she was notified that J.B. was "born with illegal substances in [his] system." (Id. at 20). As part of her investigation, Steyer interviewed Foreman during the time that she was a patient at the hospital after giving birth to J.B. (Id. at 22). According to Steyer, Foreman reported the following: (1) "that she used cocaine 6 to 12 times throughout her pregnancy"; (2) "that she used every two to three weeks during her pregnancy"; (3) "that she used a week and a half to two weeks" prior to J.B.'s birth; (4) "that her...
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State v. Foreman
...In a split decision, the court of appeals disagreed with Foreman and affirmed her conviction for possession of cocaine. 2020-Ohio-3145, 155 N.E.3d 168, ¶ 16, 18. In doing so, the majority reasoned that for purposes of establishing that a defendant possessed a controlled substance in a parti......
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State v. Foreman
...In a split decision, the court of appeals disagreed with Foreman and affirmed her conviction for possession of cocaine. 2020-Ohio-3145, 155 N.E.3d 168, ¶ 16, 18. In doing the majority reasoned that for purposes of establishing that a defendant possessed a controlled substance in a particula......