[Cite as State v. Griffin, 2013-Ohio-3309.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

SCIOTO COUNTY 

STATE OF OHIO, : 

 : 

Plaintiff-Appellee, : 

 : Case No. 12CA3484 

v. : 

 : DECISION AND 

MALCOLM R. GRIFFIN, : JUDGMENT ENTRY

 : 

 Defendant-Appellant. : Released: 07/19/2013 

 

APPEARANCES:

Bryan Scott Hicks, Lebanon, Ohio, for Appellant. 

Mark E. Kuhn, Scioto County Prosecutor and Shane Tieman, Assistant Prosecuting 

Attorney, for Appellee. 

 

Hoover, J. 

 {¶ 1} This is an appeal of a conviction from the Scioto County Court of Common 

Pleas. On March 13, 2012, a jury convicted appellant Malcolm Griffin of 1) Trafficking 

in Drugs Within the Vicinity of a Juvenile, a first degree felony, in violation of R.C. 

2925.03(A)(2)/(C)(4)(F)(E); 2) Possession of Crack Cocaine, a first degree felony, in 

violation of R.C. 2925.11(A)/(C)(4)(E); and 3) Operation While Under the Influence of 

Alcohol or Drug Abuse, a first degree misdemeanor, pursuant to R.C. 

4511.19(A)(1)/(b)(3). The trial court also found him guilty on a count of Display of 

License Plates and Validation Stickers, a minor misdemeanor pursuant to R.C. 4503.21. 

Appellant was sentenced to a total of four (4) years in prison and fines of $325.00. For 

the following reasons, we affirm appellant’s convictions. 

 {¶ 2} Appellant sets forth one assignment of error: 
 Scioto App. No. 12CA3484 2 

THE VERDICT WAS AGAINST THE SUFFICIENCY OF THE 

EVIDENCE AS WELL AS AGAINST THE MANIFEST WEIGHT OF 

THE EVIDENCE. 

I. 

STATEMENT OF THE CASE 

{¶ 3} On December 23, 2011, Lee Barrow traveled to Columbus, Ohio in order 

to acquire drugs. Barrow was traveling with juvenile Gregory Henderson. According to 

Barrow, the two were stranded in Columbus after their ride left them. Barrow called his 

longtime friend, appellant, Malcolm Griffin. Appellant agreed to give him a ride back to 

their hometown of Williamson, West Virginia. Appellant planned on going to Charleston, 

West Virginia first to pick up his mom and little sister, before continuing to Williamson. 

{¶ 4} While the three were loading the car, Barrow carried out a new black jacket. 

They left after 11:00 p.m.; and Griffin stopped to put some gas in the car. During this 

stop, Barrow testified that he placed about an ounce of crack cocaine, contained in a 

plastic bag, inside a can of hair gel. He then placed that container inside a pocket of the 

black jacket. After the stop, appellant drove south on U.S. 23. 

{¶ 5} In the early morning hours of December 24, 2013, Ohio State Highway 

Trooper Ted Neal and Sargent Jeremy Schuldt were working the midnight shift on U.S. 

23 near Lucasville, Ohio. At 2:25 a.m. Trooper Neal noticed a vehicle driving south on 

U.S. 23 without a front license plate. In addition, the rear license tag light of the vehicle 

was not functioning. Sargent Schuldt was driving the police cruiser and began to follow 

the vehicle. When the vehicle pulled in a closed business, the officers activated the 

overhead lights and pulled over the vehicle. Trooper Neal approached the vehicle to 
 Scioto App. No. 12CA3484 3 

obtain basic information. The driver of the vehicle was appellant Malcolm Griffin. 

Trooper Neal then went back to his vehicle. 

{¶ 6} On his second approach to the vehicle, Trooper Neal smelled alcohol on 

Griffin. After having obtained appellant’s basic information, Trooper Neal knew that 

appellant was only twenty years old. Trooper Neal asked appellant to step out of the 

vehicle. Next, Trooper Neal performed the HGN test, evaluating appellant’s eyes. 

Trooper Neal observed four of the six indicators. Appellant then took a preliminary 

breath test which confirmed Trooper Neal’s suspicions. At this time, appellant was 

placed under arrest for suspicion of OVI. 

{¶ 7} Meanwhile, Sargent Schuldt monitored the passengers in the vehicle. 

Gregory Henderson occupied the front passenger seat; Lee Barrow sat in the backseat. 

Sargent Schuldt described Barrow as “basically pretending as though he was still asleep.” 

Sargent Schuldt began talking to Henderson and noticed marijuana residue in the creases 

of his shirt and pants. Sargent Schuldt asked Henderson to step out of the car, and while 

he did Sargent Schuldt noticed Henderson make a flipping motion with his hand towards 

the back of the vehicle. A second glance inside the car revealed a bag of marijuana in the 

middle of the car’s floor. 

{¶ 8} The discovery of marijuana, prompted the officers to perform a complete 

search of the vehicle. A new black jacket, with the tags still on it, caught the attention of 

Sargent Schuldt. In response to an inquiry regarding ownership of the jacket, appellant 

said it belonged to him. A search of the jacket yielded the hair gel container which 

contained the 23.86 grams of cocaine-based crack. Appellant was taken to the patrol post, 
 Scioto App. No. 12CA3484 4 

where he recorded a .044 BAC after taking a breath test. He was then taken to the Scioto 

County Jail. 

{¶ 9} Appellant was indicted on five counts: 

Count One: Trafficking in Drugs Within the Vicinity of a Juvenile, a first 

degree felony, in violation of R.C. 29.25.03(A)(2) 

Count Two: Possession of Crack Cocaine, a first degree felony, in 

violation of R.C. 2925.11(A) 

Count Three: Operation While Under the Influence of Alcohol, a first 

degree misdemeanor, in violation of R.C. 4511.19(A) 

Count Four: Possession of Marijuana, a minor misdemeanor, in violation 

of R.C. 2925.11(A) 

Count Five: Display of License Plates, a minor misdemeanor, in violation 

of R.C. 4503.21. 

{¶ 10} At trial, the State presented five witnesses in their case in chief: Trooper 

Ted Neal, Heather Sheskey, Captain David Hall, Sargent Jeremy Schuldt and Detective 

Joshua Justice. Appellant presented Lee Barrow and himself as witnesses in his own 

defense. The State introduced phone calls made by appellant and Barrow while in jail. 

This conversation took place between appellant and his uncle Terry: 

MR. GRIFFIN: I’m in jail, man. 

TERRY: For what? For what? 

MR. GRIFFIN: For trafficking and DUI, man, I need some help. 

... 

TERRY: Oh, what’s the charge? 
 Scioto App. No. 12CA3484 5 

MR. GRIFFIN: Drug possession, trafficking, and DUI. 

TERRY: What’d you have possession of what? 

MR. GRIFFIN: Some cocaine. 

TERRY: Wow. You and who? 

MR. GRIFFIN: Me, Lee, and Gregory. 

The prosecutor argued in closing arguments that this was an admission of guilt, while 

appellant claimed that he was merely explaining the charges when he stated “Some 

cocaine.” 

{¶ 11} In another phone call, appellant talked with a girl and stated the 

following: 

I can’t have my boy [Barrow] in here looking all depressed. Everybody 

asking him what’s going on, what s wrong with him. I know he needs 

money on his books, I’m saying, but I’m the same way. Me and him in 

the same boat. I’m carrying his load and my load, when he’s supposed to 

be carrying my load. You dig what I’m saying? 

According to appellant, the conversation meant that Barrow did not have any money on 

his books; therefore, appellant had to help him out. 

 {¶ 12} Approximately a week before trial, Barrow wrote a letter to the trial court 

taking full responsibility for possession of the drugs. The letter stated that appellant and 

Henderson had no knowledge that drugs were in the vehicle. On cross-examination, the 

State questioned Barrow about a phone call to his father, in which Barrow claimed the 

charges were baseless. The State also questioned him about a phone call to his mother 

where he suggested the minor Henderson take sole responsibility for the charges to clear 
 Scioto App. No. 12CA3484 6 

appellant and himself. During his testimony Barrow insisted Henderson and appellant 

had no knowledge of the cocaine-based crack found in the black jacket. 

 {¶ 13} On March 16, 2012, a jury found appellant guilty of counts one, two, 

three, and five. The State voluntarily dismissed count four. The trial court merged 

counts one and two as allied offenses; and appellant was sentenced to four years in prison. 

Appellant was ordered to pay a fine of $300.00 on count three and a fine of $25.00 for 

count five. Appellant filed his notice of appeal on April 12, 2012. 

II. 

ASSIGNMENT OF ERROR 

 {¶ 14} In his sole assignment of error, appellant argues that the evidence was 

insufficient to support the conviction. In the alternative, he states that even if the verdict 

is supported by sufficient evidence, the conviction is against the manifest weight of the 

evidence. 

A. Standard of Review 

 {¶ 15} The arguments concerning the “sufficiency” and the “manifest weight” of 

the evidence are two distinct legal concepts. State v. Davis, 4th Dist. No. 12CA3336, 

2013-Ohio-1504, ¶ 12; See State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 

(1997). “When reviewing the sufficiency of the evidence, our inquiry focuses primarily 

upon the adequacy of the evidence; that is, whether the evidence, if believed, reasonably 

could support a finding of guilt beyond a reasonable doubt. [Thompkins] at 386 (stating 

that ‘sufficiency is a test of adequacy’).” Davis at ¶ 12, citing Thompkins and State v. 

Jenks, 61 Ohio St.3d 259, 274, 574 N.E.2d 492 (1991). “The standard of review is 

whether, after viewing the probative evidence and inferences reasonably drawn therefrom 
 Scioto App. No. 12CA3484 7 

in the light most favorable to the prosecution, any rational trier of fact could have found 

all the essential elements of the offense beyond a reasonable doubt.” Id. citing Jackson v. 

Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Jenks, 61 Ohio St.3d 

at 273. 

 {¶ 16} Therefore, when we review a sufficiency of the evidence claim in a 

criminal case, we review the evidence in a light most favorable to the prosecution. See 

State v. Hill, 75 Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. Grant, 67 Ohio 

St.3d 465, 477, 620 N.E.2d 50 (1993). A reviewing court will not overturn a conviction 

on a sufficiency of the evidence claim unless reasonable minds could not reach the 

conclusion the trier of fact did. State v. Tibbetts, 92 Ohio St.3d 146, 162, 749 N.E.2d 226 

(2001); State v. Treesh, 90 Ohio St.3d 460, 484, 739 N.E.2d 749 (2001). 

 {¶ 17} “Although a court of appeals may determine that a judgment of a trial 

court is sustained by sufficient evidence, that court may nevertheless conclude that the 

judgment is against the weight of the evidence.” Thompkins at 387. When an appellate 

court considers a claim that a conviction is against the manifest weight of the evidence, 

the court must dutifully examine the entire record, weigh the evidence, and consider the 

credibility of witnesses. The reviewing court must bear in mind, however, that credibility 

generally is an issue for the trier of fact to resolve. E.g., State v. Issa, 93 Ohio St.3d 49, 

67, 752 N.E.2d 904 (2001); State v. DeHass, 10 Ohio St .2d 230, 39 O.O.2d 366, 227 

N.E.2d 212 (1967), paragraph one of the syllabus; State v. Murphy, 4th Dist. No. 

07CA2953, 2008–Ohio–1744, ¶ 31. “The trier of fact ‘is best able to view the witnesses 

and observe their demeanor, gestures, and voice inflections, and use these observations in 

weighing the credibility of the proffered testimony.’” State v. Pippen, 4th Dist. No. 
 Scioto App. No. 12CA3484 8 

11CA342, 2012-Ohio-4692 ¶ 31 quoting Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 

77, 80, 461 N.E.2d 1273 (1984). 

{¶ 18} Once the reviewing court finishes its examination, the court may reverse 

the judgment of conviction only if it appears that the jury, when resolving the conflicts in 

evidence, “clearly lost its way and created such a manifest miscarriage of justice that the 

conviction must be reversed and a new trial ordered.” Thompkins, 78 Ohio St.3d at 387, 

quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). 

 {¶ 19} If the prosecution presented substantial evidence upon which the trier of 

fact reasonably could conclude, beyond a reasonable doubt, that the essential elements of 

the offense had been established, the judgment of conviction is not against the manifest 

weight of the evidence. State v. Eley, 56 Ohio St.2d 169, 383 N.E.2d 132 (1978), 

syllabus. A reviewing court should find a conviction against the manifest weight of the 

evidence only in the “exceptional case in which the evidence weighs heavily against the 

conviction.” Thompkins, 78 Ohio St.3d at 387, quoting Martin, 20 Ohio App.3d at 175; 

see also State v. Lindsey, 87 Ohio St.3d 479, 483, 721 N.E.2d 995 (2000). 

B. Legal Analysis 

1. Trafficking in Drugs Within the Vicinity of a Juvenile/ 

Possession of Crack Cocaine 

{¶ 20} Appellant’s arguments address the issue of whether the appellant could be 

found to be in constructive possession of the cocaine-based crack. Appellant does not 

contend that the trial court committed error with respect to the OVI conviction. 

Therefore, we will address only the Trafficking and Possession counts. 
 Scioto App. No. 12CA3484 9 

{¶ 21} Appellant was found guilty of Count One: Trafficking in Drugs Within 

the Vicinity of a Juvenile, a first degree felony. R.C. 2925.03 states: 

(A) No person shall knowingly do any of the following: 

*** 

(2) 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. 

*** 

(C) Whoever violates division (A) of this section is guilty of one of the 

following: 

*** 

(4) If the drug involved in the violation is cocaine or a compound, mixture, 

preparation, or substance containing cocaine, whoever violates division 

(A) of this section is guilty of trafficking in cocaine. The penalty for the 

offense shall be determined as follows: 

*** 

(e) Except as otherwise provided in this division, if the amount of the drug 

involved equals or exceeds twenty grams but is less than twenty-seven 

grams of cocaine, trafficking in cocaine is a felony of the second degree, 

and the court shall impose as a mandatory prison term one of the prison 

terms prescribed for a felony of the second degree. If the amount of the 
 Scioto App. No. 12CA3484 10 

drug involved is within that range and if the offense was committed in the 

vicinity of a school or in the vicinity of a juvenile, trafficking in cocaine is 

a felony of the first degree, and the court shall impose as a mandatory 

prison term one of the prison terms prescribed for a felony of the first 

degree. 

(f) If the amount of the drug involved equals or exceeds twenty-seven 

grams but is less than one hundred grams of cocaine and regardless of 

whether the offense was committed in the vicinity of a school or in the 

vicinity of a juvenile, trafficking in cocaine is a felony of the first degree, 

and the court shall impose as a mandatory prison term one of the prison 

terms prescribed for a felony of the first degree. 

{¶ 22} The jury also found appellant guilty of Possession of Drugs, a second 

degree felony. R.C. 2925.11(A) states: “No person shall knowingly obtain, possess, or 

use a controlled substance or a controlled substance analog.” 

{¶ 23} Appellant argues that he had neither actual nor constructive possession of 

the crack cocaine. “Actual possession exists when the circumstances indicate that an 

individual has or had an item within his immediate physical possession. Constructive 

possession exists when an individual is able to exercise dominion or control of an item, 

even if the individual does not have the item within his immediate physical possession.” 

State v. Fry, 4th Dist. No. 03CA26, 2004-Ohio-5747 at ¶ 39, citing State v. Hankerson,

70 Ohio St.2d 87, 434 N.E.2d 1362 (1982), syllabus, and State v. Wolery, 46 Ohio St.2d 

316, 329, 348 N.E.2d 351 (1976). 
 Scioto App. No. 12CA3484 11 

{¶ 24} For constructive possession to exist, “[i]t must also be shown that the 

person was conscious of the presence of the object.” State v. Harrington, 4th Dist. No. 

05CA3038, 2006-Ohio-4388 ¶ 15 quoting Hankerson, 70 Ohio St.2d at 91, 434 N.E.2d 

1362. Dominion and control, as well as whether a person had conscious presence of an 

item of contraband, may be established by circumstantial evidence. Id; see also State v. 

Jenks, 61 Ohio St.3d 259, 272-73, 574 N.E.2d 492 (1991). 

{¶ 25} R.C. 2925.01(K) states: “‘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.” “That is, ‘a defendant's mere presence in an area where drugs are 

located does not conclusively establish constructive possession. However, a defendant's 

proximity to drugs may constitute some evidence of constructive possession. Mere 

presence in the vicinity of illegal drugs, coupled with another factor or factors probative 

of dominion or control over the contraband, may establish constructive possession.’” 

Pippen, 4th Dist. No. 11CA342, 2012-Ohio-4692 ¶ 40 quoting State v. Riggs, 4th Dist. 

No. 98CA39, 1999 WL 727952, at *5. 

{¶ 26} The main issue herein is whether appellant was in constructive possession 

of the cocaine-based crack. In this case, the cocaine-based crack was found in appellant’s 

jacket, in the back of his vehicle. After a review of the entire record and all the evidence, 

we find the verdict is supported by sufficient evidence. 

{¶ 27} The State presented mostly circumstantial evidence to prove their case 

that appellant had knowledge of the cocaine-based crack. The State introduced the phone 

calls made by Barrow and appellant while in jail. The State demonstrated inconsistencies 
 Scioto App. No. 12CA3484 12 

in Barrow’s statements, and called into question appellant’s motives. The State argued 

that the letter, written by Barrow, claiming that he [Barrow] was responsible for 

possession the cocaine actually sounded like appellant’s words, not the words of Barrow. 

{¶ 28} Much of the evidence presented against appellant can be open to 

interpretation, resolvable only by the finders of fact—in this case, the jury. One example 

of such evidence presented was appellant’s conversation with his uncle Terry where the 

uncle asked, “What’d you have possession of what?” In response, appellant answered, 

“[s]ome cocaine.” The jury convicted the appellant of the possession of the crack 

cocaine; therefore, the jury apparently interpreted that conversation to mean that 

appellant knew about the cocaine being in the vehicle. 

{¶ 29} It seems that the inconsistences in Barrow’s phone conversations and his 

testimony also caused the jury to resolve the issues of fact against the appellant. 

Barrow’s phone conversations show that at one time he claimed the charges were 

baseless, whereas another time he sought to have a juvenile “take the rap” for both 

appellant and himself. At trial, Barrow testified that he was the sole person responsible 

for possessing the cocaine. 

{¶ 30} After examination of the evidence, the verdict reached by the jury is 

supported by sufficient evidence. Viewing the evidence in a light most favorable to the 

prosecution, a rational trier of fact could have found the essential elements of the crime 

proven beyond a reasonable doubt. We now turn to examine whether the verdict is 

against the manifest weight of the evidence. 

{¶ 31} When reviewing a claim challenging the manifest weight of the evidence, 

the appellate court “sits as a thirteenth juror” and assesses whether it disagrees with the 
 Scioto App. No. 12CA3484 13 

factfinder's resolution of the conflicting testimony. Thompkins, 78 Ohio St.3d at 387. 

The standard of review requires us to find this to be an “exceptional case in which the 

evidence weighs heavily against the conviction” in order to overturn appellant’s 

conviction. Id. In light of the evidence presented in this case, we cannot conclude that 

this is an exceptional case. The conviction is not against the manifest weight of the 

evidence. Therefore appellant’s sole assignment of error is not well taken. 

III. 

CONCLUSION 

 {¶ 32} We find appellant’s sole assignment of error is without merit; and 

accordingly we affirm his convictions. The jury verdicts in this case were supported by 

sufficient evidence and were not against the manifest weight of the evidence. 

JUDGMENT AFFIRMED. 

 

 
 Scioto App. No. 12CA3484 14 

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the 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 Scioto 

County Court of Common Pleas to carry this judgment into execution. 

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL 

HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it 

is temporarily continued for a period not to exceed sixty days upon the bail previously 

posted. The purpose of a continued stay is to allow Appellant to file with the Supreme 

Court of Ohio an application for a stay during the pendency of the proceedings in that 

court. If a stay is continued by this entry, it will terminate at the earliest of the expiration 

of the sixty day period, or the failure of the Appellant to file a notice of appeal with the 

Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of 

the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court 

of Ohio dismisses the appeal prior to the expiration of sixty days, the stay will terminate 

as of the date of such dismissal. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

McFarland, P.J. and Harsha, J.: Concur in Judgment and Opinion. 

 For the Court 

 By: 

Marie Hoover, Judge 

NOTICE TO COUNSEL 

 Pursuant to Local Rule No. 14, this document constitutes a final judgment entry 

and the time period for further appeal commences from the date of filing with the clerk.