The Akron Legal News

8th District upholds trafficking conviction

ANNIE YAMSON
Special to the Legal News
Published: September 16, 2013

The 8th District Court of Appeals affirmed the judgment of the Cuyahoga County Court of Common Pleas this week when it found there was sufficient evidence to convict a defendant of trafficking drugs after police conducted a raid on his house.

The state brought two drug cases against Randy Flachbart charging him with 10 counts of trafficking and possession of Oxycodone and marijuana, along with a single count of possession of criminal tools.

The second case charged Flachbart with nine counts of trafficking and possession of marijuana, Oxycodone and methamphetamine, and a single count of possession of criminal tools.

The cases were joined for trial and Flachbart waived a jury.

When the state finished its case-in-chief, Flachbart absconded and was tried in absentia.

The trial court subsequently found him guilty of all 10 counts in the first case and six counts in the second case.

According to case history, Flachbart remained at-large for nearly 10 months before his capture and subsequent sentencing.

Upon appeal, Flachbart challenged the sufficiency and manifest weight of the evidence showing that he possessed 87 pills of Oxycodone.

He also claimed that the state presented insufficient evidence of the weight of marijuana in his possession.

The summary of the case provided by the 8th District stated that the police recovered a pill bottle containing 87 unit doses of Oxycodone from the pocket of a man’s jacket placed inside a laundry basket in the home where Flachbart resided.

Flachbart contended that the state offered no evidence to prove that the jacket belonged to him.

The state charged Flachbart with drug possession under R.C. 2925.11(A), which states, “No person shall knowingly obtain, possess, or use a controlled substance.”

“Possession can be actual or constructive,” wrote Judge Melody Stewart on behalf of the district court’s three-judge appellate panel. “Actual possession entails ownership or physical control, whereas constructive possession is defined as ‘knowingly exercising dominion and control over an object, even though the object may not be within his immediate physical possession.’”

Judge Stewart said the state was allowed to show constructive possession by circumstantial evidence alone.

“We determine whether the evidence is sufficient to sustain a verdict by examining the evidence in the light most favorable to the prosecution and determining whether any rational trier of fact could have found that the prosecution proved the essential elements of the crime beyond a reasonable doubt,” wrote Judge Stewart.

An appellate review of the evidence revealed that information gleaned from an informant caused the police to obtain a search warrant for Flachbart’s house in Cleveland.

After he was read his rights, Flachbart said he wished to cooperate.

At trial, a police officer testified that Flachbart “assumed full responsibility for everything that was in the house,” saying “it’s all mine, they (the other people in the house) don’t have anything to do with it.”

Inside the home, the police discovered large amounts of drugs, scales and a ledger that appeared to document drug transactions.

It contained figures and amounts, consistent with the street price of marijuana, showing “owed,” “pd” and “got.”

Despite his acceptance of responsibility, Flachbart held that the jacket with the pills did not belong to him.

“We reject this argument for two reasons,” wrote Judge Stewart. “First, Flachbart’s statement to the police that ‘it’s all mine’ was sufficient to cause a rational trier of fact to conclude that he possessed all of the drugs found in the house, including the drugs contained in the pocket of the jacket.”

Even without that statement, Judge Stewart stated that the fact that the jacket was found in a place where Flachbart resided was strong circumstantial evidence from which a rational trier of fact could find that he owned the jacket and all of its contents.

“While constructive possession requires more than that the property is located within the premises under ones control, the presence of the pills in the pocket of one’s garment is strongly suggestive of possession even if one is not wearing that garment,” Judge Stewart stated, finding that Flachbart’s possession of the Oxycodone was not against the sufficiency or manifest weight of the evidence.

Flachbart proceeded to argue that the state failed to prove the precise weight of the marijuana recovered from the house.

Two counts in his indictment charged Flachbart with trafficking and possession of marijuana in an amount in excess of 5,000 grams.

However, he argued that the state’s expert erroneously included the seeds and stems when he weighed the weed to arrive at a weight of 5,172 grams.

The appellate panel disagreed, citing R.C. 3719.01(O), which defines marijuana as “all parts of a plant of the genus cannabis, whether growing or not; the seeds of a plant of that type; the resin extracted from a part of a plant of that type, and every compound, manufacture, salt, derivative, mixture or preparation of a plant of that type or of its seeds or resin.”

In addition, the Ohio Supreme Court has held that the first line of the statutory definition of marijuana included “all” parts of the plant and that drugs can be weighed as received.

“The testimony showed that the marijuana consisted of two bricks that contained seeds and stems that had not been broken down or removed from them,” wrote Judge Stewart. “The bricks were thus properly weighed.”

Flachbart’s conviction was affirmed with judges Kathleen Keough and Tim McCormack joining Judge Stewart to form the majority.

The case is cited State v. Flachbart, 2013-Ohio-3807.

[Back]