[Cite as State v. Sarvabui , 2020-Ohio-1429.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA )

STATE OF OHIO Appellee

v. ALEXIS SARVABUI Appellant C.A. No. 19CA0036-M

APPEAL FROM JUDGMENT ENTERED IN THE WADSWORTH MUNICIPAL COURT COUNTY OF MEDINA, OHIO CASE No. 18CRB00838

DECISION AND JOURNAL ENTRY Dated: April 13, 2020

TEODOSIO, Judge. {¶1} Appellant, Alexis Sarvabui, appe als from her conviction for ill egal use or possession of drug paraphernalia i n the Wadsworth Municipal Cou rt. This Court affirms.

I. {¶2} Ms. Sarvabui was pulled over by police for a lane violation whi le driving in her car

with a friend. A K-9 Unit wa s soon called to the scene, and th e dog alerted to both the driver and passenger doors of the vehicle. A search of the vehicle reveal ed a used methamphetamine pipe in plain view in the center console. Both occupants denied owners hip of the pipe, but admitted to using methamphetamine in the past. After some period of time, the passenger told police she would just “take the charge.” {¶3} Ms. Sarvabui was charged with illegal use or possession of drug paraphernalia, a misdemeanor of the fourth degree. Following a bench trial, the trial court found her guilty and sentenced her to thirty days in jail. The court suspended the jail sentence, placed her on one year2

of probation, and fine d her $150.00. Ms. Sarvabui successfully moved the trial court for a stay of execution of her sentence pending appeal. {¶4} Ms. Sarvabui now appeals from her conviction and raises three a ssignments of error

for this Court’s review.

II.

ASSIGNMENT OF ERROR ONE

THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE TRIAL COURT’S VERDICT OF GUILTY AS TO USE, POSSESSION, SALE DRUG (SIC). {¶5} In her first assignment of error , Ms. Sarvabui argues that her conviction was based on insufficient evidence. We disagree. {¶6} Whether a conviction is supported by sufficient evidence is a q uestion of law, which

this Court reviews de novo. State v. Thompkins , 78 Ohio St.3d 380, 386 (1997). “Sufficiency concerns the burden of production a nd tests whether the prosecu tion presented adequate evidence for the case to go to the jury.” State v. Bressi , 9th Dist. Summit No. 27575, 2016-Ohio-5211, ¶ 25, citing Thompkins at 386. “‘The relevant inquiry is whether, after viewing the evidence in a light most favorable to the pros ecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.’” Id. , quoting State v. Jenks , 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. However, “we do not resolve evidentiary

conflicts or assess the credibility of witnesses, because these functions belong to t he trier of fact.”

State v. Hall , 9th Dist. Summit No. 27827, 2017-Ohio-73, ¶ 10. {¶7} Ms. Sarvabui was convicted of illegal use or possession of drug paraphernalia under R.C. 2925.14(C)(1), which states: “[N]o person shall knowingly use, or possess with purpose to use, drug paraphernalia.” “A person acts knowingly, regardless of purpose, when the person is aware that the person’s conduct will probably cause a certain r esult or will probably be of a certain3

nature.” R.C. 2901.22(B). “Posse ss” or “possession” means “ha ving control over a thing or substance, but may not be inferred solely from mere access to t he thing or substance through ownership or occupation of the premises upon which the thing or substance is found.” R.C. 2925.01(K). “[D]rug paraphernalia” includes “any * * * product , or material of any kind that is used by the offender, intended by the offender for use, or desi gned for use, in * * * ingesting, inhaling, or otherwise introduci ng into the human body, a contr olled substance * * *[,]” such as a glass pipe. R.C. 2925.14(A)(13). {¶8} Officer Sean Shannon of the Wadsw orth Police Department testifi ed at trial that, on September 19, 2018, he observed Ms. Sarvabui’s vehicle commi t a lane violation, which prompted him to conduct a traffi c stop of the vehicle. After l earning of “some drug history” with the passenger of the v ehicle and discovering an active warrant for her, Officer Shannon called for a K-9 Unit to walk around the vehicle. The dog alerted on both the driver and passenger side doors. When Officer Shannon searched the vehicle, he found a u sed methamphetamine pipe in the open area of the center consol e, in plain view. Both occup ants denied ownership of the pipe, but after a period of time the passenger said that “she wanted to be charged with it instead of the driver.” The passenger still maintained tha t the pipe was not hers, but nonetheless told police she would take the ticket for it. Both occupants admitted to using methamphetamine in the past. While the passenger admitted to using methamphetamine within the past three days, Ms. Sarvabui

claimed “it had been awhile” for her. {¶9} This Court disagrees with Ms. Sarvabui’s claim that “[t]he evid ence presented at

trial was insufficient for the tr ial court to find [her] guilty of possessing the crack (sic) pipe.” We

find no merit in her contention that because she denied ownersh ip of the pipe and the passenger4

told police she would “take the charge,” the evidence was there fore insufficient to demonstrate Ms. Sarvabui’s possession of the pipe. {¶10} A person may knowingly possess an object through either actual or constructive possession. State v. Hilton , 9th Dist. Summit No. 21624, 2004-Ohio-1418, ¶ 16. Constructi ve possession exists when an individual knowingly exercises domini on and control over an object, even though that object may not be within her immediate physica l possession. State v. Hankerson , 70 Ohio St.2d 87 (1982), syllabus. Dominion and control may be proven through circumstantial

evidence. State v. Rucker , 9th Dist. Summit No. 25081, 2010-Ohio-3005, ¶ 30. “For insta nce, ‘readily usable drugs or other contraband in close proximity to a defendant may constitute sufficient and direct circumstantial evidence to support a find ing of constructive possession.’”

State v. Owens , 9th Dist. Summit No. 23267, 2007-Ohio-49, ¶ 23, quoting State v. Varner , 9th Dist. Summit No. 21056, 2003-Ohio-719, ¶ 19. Ownership need no t be proven to establish constructive possession. State v. Collins , 9th Dist. Summit No. 23005, 2006-Ohio-4722, ¶ 11. {¶11} After reviewing the evidence presented in a light most favorabl e to the prosecution, we determine that the State presented sufficient evidence, if b elieved, to demonstrate that Ms. Sarvabui constructively possessed the methamphetamine pipe. Ms . Sarvabui was the owner and driver of the vehicle, and the pipe was located in an open sect ion of the vehicle’s center console, in close proximity and directly next to her. We therefore conc lude that a rational trier of fact could have found all the elements of illegal use or possession of dru g paraphernalia proven beyond a

reasonable doubt. {¶12} Ms. Sarvabui’s first assignm ent of error is overruled.5

ASSIGNMENT OF ERROR TWO APPELLANT’S CONVICTION AS TO USE, POSSESSION, SALE DRUG (SIC) WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. {¶13} In her second assignment of error, Ms. Sarvabui argues that her conviction was against the manifest weight of the evidence. We disagree. {¶14} A challenge to the manifest weight of the evidence concerns the State’s burden of persuasion. In re R.H. , 9th Dist. Summit No. 28319, 2017-Ohio-7852, ¶ 25, citing State v. Thompkins , 78 Ohio St.3d 380, 390 (1997) (Cook, J., concurring). When r eviewing a manifest weight challenge, an appellate court must review the entire record, weigh the evi dence and all reasonable inferences, consider the credibility of witnesses an d determine whether, in resolving conflicts in the evidence, the trier of fact clear ly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.

State v. Otten , 33 Ohio App.3d 339, 340 (9th Dist.1986). “[W]hen reversing a conviction on the basis that it was against the manifest weight of the evidence, an appellate court sits as a ‘thirteenth juror,’ and disagrees with the factfinder’s resolution of the c onflicting testimony.” State v. Tucker , 9th Dist. Medina No. 06CA0035-M, 2006-Ohio-6914, ¶ 5. This dis cretionary power “should be exercised only in the exceptional case in which the evidence we ighs heavily against the

conviction.” State v. Thompkins , 78 Ohio St.3d 380, 387 (1997), quoting State v. Martin , 20 Ohio App.3d 172, 175 (1st Dist.1983). See also Otten at 340. {¶15} Ms. Sarvabui argues that her convi ction is against the manifest weight of the evidence because “[c]learly [her] passenger was the owner of th e crack (sic) pipe.” She directs us to her denial of ownership of th e pipe and the passenger’s deci sion to “take the charge.” We find no merit in this argument. Once again, ownership need not be p roven to establish constructive possession. Collins , 2006-Ohio-4722, at ¶ 11. After reviewing the entire record, weighing the6

evidence and all reasonable inferences, and considering the cre dibility of witnesses we cannot say that the trier of fact, in resolving any conflicts in the evide nce, clearly lost its way and created a manifest miscarriage of justice. See Otten at 340. Ms. Sarvabui has also not shown that this is an exceptional case in which the evi dence weighs heavily against c onviction. See Thompkins at 387. {¶16} Ms. Sarvabui’s second assign ment of error is overruled.

ASSIGNMENT OF ERROR THREE

APPELLANT’S TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION. {¶17} In her third assignment of error, Ms. Sarvabui argues that she received ineffective assistance of counsel. We disagree. {¶18} “[I]n Ohio, a properly licensed atto rney is presumed competent. ” State v. Gondor , 112 Ohio St.3d 377, 2006-Ohio-6679, ¶ 62. “There are countless ways to provide effective assistance in any given case. Even the best criminal defense a ttorneys would not defend a particular client in the same way.” Strickland v. Washington , 466 U.S. 668, 689 (1984). Moreover,

debatable trial tactics will not constitute ineffective assista nce of counsel. State v. Clayton , 62 Ohio St.2d 45, 49 (1980). To prove ineffective assistance of c ounsel, one must establish that: (1) her counsel’s performance was def icient, and (2) the deficient performance prejudiced the defense.

Strickland at 687. Counsel’s performance is deficient if it falls below an objective standard of reasonable representation. State v. Bradley , 42 Ohio St.3d 136 (1989), paragraph two of the syllabus. Prejudice can be shown by proving “there exists a re asonable probability that, were it not for counsel’s errors, the resu lt of the trial would have be en different.” Id. at paragraph three of the syllabus. “[T]he Court need not address both Strickland prongs if an appella nt fails to prove

either one.” State v. Lortz , 9th Dist. Summit No. 23762, 2008-Ohio-3108, ¶ 34.7

{¶19} Ms. Sarvabui claims that her tria l counsel provided ineffective assistance by failing to file a jury demand, failing to file a motion to suppress, an d failing to subpoena the passenger of the vehicle. She broadly assert s, without any legal or evident iary support, that “[a] jury trial would have increased [her] chances f or either an acquittal or hung ju ry[,]” “[a] motion to suppress could have been successfully prosecute d and could have resulted in th e evidence obtained during the traffic stop being inadmissible[ ,]” and “[her] passenger could have testified during trial regarding the statements she made during the traffic stop.” Beyond these speculative and conclusory statements, however, Ms. Sarvabui fails to set forth any meanin gful argument in support of this assignment of error. See App.R. 16(A)(7). “As this Court has repeatedly recognized, ‘[s]peculation regarding the pr ejudicial effect s of counsel’s p erformance will not establish

ineffective assistance of counsel.’” State v. Carter , 9th Dist. Summit No. 27717, 2017-Ohio-8847, ¶ 38, quoting State v. Buzek , 9th Dist. Medina No. 14CA0011-M, 2015-Ohio-4416, ¶ 7, quoting State v. Zupancic , 9th Dist. Wayne No. 12CA0065, 2013-Ohio-3072, ¶ 4. As Ms. Sa rvabui has failed to demonstrate any defici ent performance by trial counse l or any resulting prejudice, her

ineffective assistance of counsel claim must fail. {¶20} Ms. Sarvabui’s third assign ment of error is overruled.

III. {¶21} Ms. Sarvabui’s assignments of error are all overruled. The jud gment of the Wadsworth Municipal Court is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal.8

We order that a special mandate issue out of this Court, direc ting the Wadsworth Municipal Court, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to m ake a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant.

THOMAS A. TE ODOSIO FOR THE COURT

CALLAHAN, P. J. SCHAFER, J. CONCUR.

APPEARANCES: ERIC D. HALL, Attorney at Law, for Appellant. THOMAS J. MORRIS, Assistant Di rector of Law, for Appellee.