[Cite as State v. Morris , 2011-Ohio-6594.]

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

STATE OF OHIO Appellee

v. RICO L. MORRIS Appellant C.A. No. 25519

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 09 11 3544

DECISION AND JOURNAL ENTRY Dated: December 21, 2011

BELFANCE, Presiding Judge. {¶1} Rico Morris appeals his conviction for posse ssion of cocaine. For the reasons set forth below, we affirm.

I. {¶2} Based on information from a confidential in formant, police obtained a warrant to search Mr. Morris’ house and its curtilage. The po lice officers discovered a small quantity of crack cocaine inside Mr. Morris’ house and a signi ficantly larger quantity of crack cocaine in a van parked in his driveway. {¶3} Mr. Morris moved to suppress the evidence, but the trial court denied his motion. A jury convicted Mr. Morris of possession of crack cocaine but failed to agree on the charges of trafficking and possessing criminal tools. The trial court sentenced him to four years imprisonment.2

{¶4} Mr. Morris has appealed, raising five assignments of error for review. For ease of discussion, we have rearranged his assignments of error.

II. ASSIGNMENT OF ERROR II

“THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN DENYING DEFENDANT’S MOTION TO SUPPRESS THE EVIDENCE OBTAINED FROM A SEARCH WARRANT THAT WAS BASED UPON AN AFFIDAVIT THAT LACKED PROBABLE CAUSE.” {¶5} In Mr. Morris’ second assignment of erro r, he argues that the affidavit submitted by Detective Timothy Harvey in support of the s earch warrant failed to establish probable cause. However, the copy of the affidavit submitted with the record on appeal lacks a signature page.

Given that neither Mr. Morris nor the State conte nds that Detective Harvey failed to sign his affidavit, this Court can only conclude that the copy of the affidavit included in the record on appeal is incomplete. Furthermore, we are unable to determine whether only the signature page is missing or whether other parts of the affi davit are also missing. As we cannot conduct a review on an incomplete record, we must presume regularity in the proceedings below. See

State v. Gates , 9th Dist. No. 25435, 2011-Ohio-5631, at ¶5. {¶6} Mr. Morris’ second assignment of error is overruled.

ASSIGNMENT OF ERROR III

“THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN DENYING DEFENDANT’S MOTION TO SUPPRESS THE EVIDENCE AND HOLDING THAT A WARRANT TO SEARCH THE CURTILAGE INCLUDES THE RIGHT TO SEARCH AN AUTOMOBILE PARKED IN THE DRIVEWAY.” {¶7} Mr. Morris argues that the search warrant did not permit the police to search the van parked in his driveway because the van was not mentioned specifically in the search warrant and because a van located in a driveway is not included in the curtilage of a home. He also3

argues that the van could not be searched because it was not his van as evidenced by the fact that

it was not titled in his name. {¶8} The trial court held a hearing on Mr. Morri s’ motion to suppre ss, but the parties did not present any evidence. Instead, Mr. Morris’ counsel argued that the term “curtilage” did not include the van parked in the driveway. Th e State countered that some Ohio courts have concluded that the curtilage included vehicles parked in the driveway. Mr. Morris argued that those cases were distinguishable because Mr. Mo rris, unlike the defendants in those cases, did not own the vehicle in question. The trial court then questioned whether Mr. Morris could assert that his Fourth Amendment rights were violated if he did not own the van. The trial court overruled Mr. Morris’ motion to suppress. The tr ial court’s journal entry did not set forth its reasoning but simply denied the motion. {¶9} “Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.” (Internal quotations and citations omitted.) Rakas v. Illinois (1978), 439 U.S. 128, 133-134. Accordingly, Mr. Morris could not challenge the legality of the search unless he claimed some legitimate privacy interest in the property searched or seized. Id. at 134. The unintended consequence of denying ownership or possessory interest in the van is that he cannot al so claim that his Fourth Amendment rights were violated. See, e.g., Id. at 130, 138 (Defendants who “did not own the automobile [searched] * * * nor * * * assert that they owned the [items] se ized[]” could not object to the lawfulness of the search despite being passengers in the car.); but, cf., State v. Carter (1994), 69 Ohio St.3d 57, 58, 63 (holding that passengers in a vehicle can challenge the legality of a stop because “they are * * * seized, and their freedom of movement is * * * affected”).4

{¶10} Based on the arguments made at the suppr ession hearing, we cannot say that the

trial court erred when it deni ed Mr. Morris’ motion to suppre ss as it could have reasonably concluded that, because Mr. Morris denied that he had any ownership or possessory interest in the vehicle, he could not demonstrate that his Fourth Amendment rights were violated by its search. Accordingly, Mr. Morris’ thir d assignment of error is overruled.

ASSIGNMENT OF ERROR V

“THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR WHEN IT OVERRULED DEFENDANT’S [CRIM.R.] 29(A) MOTION FOR JUDGMENT OF ACQUITTAL BECAUSE THE STATE PRESENTED INSUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION.” {¶11} Mr. Morris addresses his fourth and fifth assignments of error together in his brief. However, “[t]he legal c oncepts of sufficiency of the evidence and weight of the evidence are both quantitatively and qualitatively different.” State v. Thompkins (1997), 78 Ohio St.3d 380, 386. While sufficiency is a test of whether th e evidence presented is adequate to sustain a verdict as a matter of law, weight of th e evidence “concerns the inclination of the greater amount of credible evidence , offered in a trial, to support one side of the issue rather than the other.” (Internal citations and qu otations omitted.) (Emphasis sic.) Id. at 387. {¶12} A review of a Crim.R. 29 motion is a review of the sufficiency of the evidence.

State v. Frashuer , 9th Dist. No. 24769, 2010-Ohio-634, at ¶33. “Whether a conviction is supported by sufficient evidence is a question of law that this Court reviews de novo.” State v. Williams, 9th Dist. No. 24731, 2009–Ohio–6955, at ¶18, citing Thompkins, 78 Ohio St.3d at 386. The relevant inquiry is whether the prosecuti on has met its burden of production by presenting

sufficient evidence to sustain a conviction. Thompkins, 78 Ohio St.3d at 390 (Cook, J., concurring). In reviewing the evidence, we do not evaluate credibility and we make all

reasonable inferences in favor of the State. State v. Jenks (1991), 61 Ohio St.3d 259, 273. The5

State's evidence is sufficient if it allows the trier of fact to reasonably conclude that the essential elements of the crime were proven beyond a reasonable doubt. Id. {¶13} The jury convicted Mr. Morris of possessi ng crack cocaine, a violation of R.C. 2925.11(A). R.C. 2925.11(A) provides that “[n]o person shall knowingly obtain, possess, or use a controlled substance.” Because the jury al so found that Mr. Morris possessed 25 grams or more, but less than 100 grams, of crack coca ine, Mr. Morris’ violation of R.C. 2925.11(A) constituted a first-degree felony. Former R. C. 2925.11(C)(4)(e). “A person acts knowingly, regardless of his purpose, when he is aware th at his conduct will probably cause a certain result or will probably be of a certain nature. A pers on has knowledge of circumstances when he is aware that such circumstances probably exist.” R.C. 2901.22(B). R.C. 2925.01(K) defines “[p]ossess” or “possession” as “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.” {¶14} In making his Crim.R. 29 motion, Mr. Morris argued that the State failed to present sufficient evidence to show that Mr. Morris possessed the cocaine found in the van. However, Tina Person testifie d that Mr. Morris asked her to get the van from the towing company and that he took possession of the van. She also testified that she observed Mr. Morris driving the van. The police, when searching Mr . Morris’ home, found the keys to the van and, when they searched the van, found 39.2 grams of cr ack cocaine on the middle seat under a towel. They also discovered Mr. Morris’ lease for his ap artment inside the glove box. The State also presented evidence that after Mr. Morris’ arrest, he spoke with his mother from jail. During the recorded conversation, Mr. Morris told his mother th at he had not been trafficking to anyone, but that he would “take the possession.”6

{¶15} Accordingly, when viewed in the light most favorable to the State, there was sufficient evidence presented for a reasonable trier of fact to determine that Mr. Morris possessed the van and that he possessed the crack cocaine that was discovered inside of it. See State v.

Parker , 9th Dist. No. 22979, 2006-Ohio-4866, at ¶5 (“Po ssession of the keys to a vehicle is a strong indicator that a defenda nt has control over the vehicle and all things found in the vehicle.”) (Internal quotations a nd citations omitted.); see, also, State v. Owens , 9th Dist. No. 23267, 2007-Ohio-49, at ¶23 (noting that, while “evidence or factors, such as owning the premises or proximity to contraband, * * * on their own do not establish constructive possession[,] * * * viewing these factors together as a whole can be used as circumstantial evidence to establish constructive possessi on.”) (Internal cita tions omitted.). {¶16} His fifth assignment of error is overruled.

ASSIGNMENT OF ERROR IV

“DEFENDANT’S CONVICTION FOR POSSESSION OF COCAINE WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.” {¶17} Mr. Morris concedes that he knowingly possessed the 3.2 grams of crack cocaine found in his house, a fourth-degree felony under former R.C. 2925.11(C)(4)(b), but challenges the jury’s conclusion that he knowingly possessed the 39.2 grams found in the van in his driveway as being against the manifest weight of the evidence. We disagree. {¶18} In reviewing a challenge to the weight of the evidence, the appellate court “must review 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 ma nifest miscarriage of jus tice that the conviction

must be reversed and a new trial ordered.” State v. Otten (1986), 33 Ohio App.3d 339, 340.7

{¶19} The jury convicted Mr. Morris of possessi ng crack cocaine, a violation of R.C. 2925.11(A). R.C. 2925.11(A) provides that “[n]o person shall knowingly obtain, possess, or use a controlled substance.” Because the jury al so found that Mr. Morris possessed 25 grams or more, but less than 100 grams, of crack coca ine, Mr. Morris’ violation of R.C. 2925.11(A) constituted a first-degree felony. Former R. C. 2925.11(C)(4)(e). “A person acts knowingly, regardless of his purpose, when he is aware th at his conduct will probably cause a certain result or will probably be of a certain nature. A pers on has knowledge of circumstances when he is aware that such circumstances probably exist.” R.C. 2901.22(B). R.C. 2925.01(K) defines “[p]ossess” or “possession” as “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.” {¶20} It is undisputed that, when the police ex ecuted the search warrant for Mr. Morris’ home, they discovered 3.2 grams of crack cocain e on a dresser in a bedroom and an additional 39.2 grams of crack cocaine under a blanket in the van parked in the driveway. It is also undisputed that the police found the keys for the van in Mr. Morris’ home and that the van had been in Mr. Morris’ driveway for months. Fu rthermore, Ms. Person te stified that Mr. Morris presented the title to her and asked her to take title of the van because it had been towed and Mr. Morris could not sign to retrieve it because he lacked a driver’s license. Ms. Person testified that she did this favor for Mr. Morris and, after she retrieved the van from the towing company, gave Mr. Morris the keys. According to Ms. Pers on, she had no further contact with Mr. Morris concerning the van, but did see him occasionall y driving it. Based on Ms. Person’s testimony, the fact that Mr. Morris was in possession of the keys to the van, and the fact that the van was8

parked in Mr. Morris’ driveway, the jury could reasonably have determined that Mr. Morris was in possession and control of the van a nd, by extension, the items found inside. {¶21} However, Mr. Morris contends that the ju ry lost its way because Tiauna Land, his girlfriend at the time of the search, testified that many other people in the neighborhood had access to the van. He also argues that the jury should not have believed Ms. Person’s testimony because she had originally told the police a different version of events than the one she testified

about at trial. {¶22} With regard to the latter argument, Mr. Morris’ counsel thoroughly crossexamined Ms. Person about what she had originally told the police. In other words, the jury was aware that Ms. Person had altered her story and could judge her credibility accordingly. Furthermore, we are unconvinced th at Ms. Person’s original story, that she had sold the van to Mr. Morris instead of merely retrieving it from the towing company, significantly affects the fact that Mr. Morris had the keys to a van that was pa rked in his driveway for months prior to the police’s discovery of the crack cocaine. {¶23} Turning to Ms. Land’s testimony, Mr. Morris essentially argues that the fact that other people had access to the van means that th e State could not prove that he possessed the items found in there beyond a reasonable doubt. While Ms. Land testified that she had seen people using the van, she also testified that she had not observed anyone use the van for approximately one month prior to the search. Furthermore, Ms. Land also testified that Mr. Morris gave some people permission to use the va n, which undermines his claim that he did not have possession and c ontrol of the van. {¶24} Finally, Mr. Morris argues that his convic tion is against the manifest weight of the

evidence because the van was not titled in his name. It is true that this fact is undisputed.9

However, the lack of title ownership does not necessarily negate a possessory interest in the vehicle. In light of the evidence outlined above , the jury could have reasonably concluded that Mr. Morris had a possessory interest in the van, notwithstanding the lack of title ownership. The fact that his name was not on the van’s title was not dispositive proof that Mr. Morris did not have possession of the van or control over its contents. {¶25} Ms. Person testified that she had retrieve d the van at Mr. Morris’ request, had given him the keys, and had seen him driving the van. The jury was aware of her potentially contradictory statements to the police and could judge her credibility accordingly. While Ms. Land testified that other people ha d used the van, some by breaking in through a window, she also testified that Mr. Morris gave people pe rmission to use the van and that she had not observed anyone in the van for over a month prior to the discovery of the crack cocaine. It is also undisputed that Mr. Morris had the keys to th e van and that the van had been in his driveway for months. Accordingly, based on a thorough re view of the record, we cannot say that the jury lost its way when it determined that Mr. Morri s possessed the crack cocaine found in the van, and, thus, we cannot conclude th at his conviction for possessing crack cocaine in a quantity in excess of 25 grams but less than 100 grams was ag ainst the manifest weight of the evidence. {¶26} Mr. Morris’ fourth assignme nt of error is overruled.

ASSIGNMENT OF ERROR I

“THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING DEFENDANT’S MOTION FOR MISTRIAL DUE TO JUROR MISCONDUCT.” {¶27} In Mr. Morris’ first assignment of error, he argues that the trial court abused its discretion when it denied his motion for a mistrial. While neither party disputes that juror10

misconduct occurred, in order to be entitled to a mistrial, Mr . Morris was also required to establish prejudice. See State v. Keith (1997), 79 Ohio St.3d 514, 526. {¶28} “Mistrials need be declared only when the ends of justice so require and a fair trial is no longer possible.” State v. Franklin (1991), 62 Ohio St.3d 118, 127, citing Illinois v.

Somerville (1973), 410 U.S. 458, 462-463 and Arizona v. Washington (1978), 434 U.S. 497, 505- 506. When analyzing a case of alleged juror misconduct, it must be determined (1) whether misconduct actually occurred and (2) whether the misconduct materially prejudiced the defendant’s substantial rights. State v. Herb , 167 Ohio App.3d 333, 2006-Ohio-2412, at ¶6. When juror partiality is allege d, the trial court should hold a hearing so that the complaining party may have an opportunity to prove actual bias. See State v. Conway , 108 Ohio St.3d 214, 2006-Ohio-791, at ¶160; see, also, State v. Herring (2002), 94 Ohio St.3d 246, 258-259. {¶29} However, the trial court has broad discretion concerning matters of juror misconduct and potential bias. Herring , 94 Ohio St.3d at 259, quoting State v. Phillips (1995), 74 Ohio St.3d 72, 88-89. Accordingly, an appellat e court reviews the denial of a motion for a

mistrial for an abuse of discretion. See Herring , 94 Ohio St.3d at 259-260. An abuse of discretion implies that the trial court’s attitude was “unreasonable, arbitrary or unconscionable.”

Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. {¶30} During a break in jury deliberations, Juror 8 rode with Mr. Morris in an elevator. While they were in the elevator, Juror 8 told Mr. Morris that her father had some drug problems, that she understood where Mr. Morris was coming from, and that the jury deliberations were going to take a while. Mr. Morris reported the incident to the trial court, which proceeded to question Juror 8 about the incident. Juror 8 initia lly denied having had the conversation with Mr. Morris but eventually admitted that she had told Mr . Morris about her father’s addiction. Juror 811

also stated that the jury was still deliberating. Nevertheless, Juror 8 consistently denied having brought the conversation up durin g the jury’s deliberations. {¶31} Before making a final decision on Mr. Mo rris’ motion for a mistrial, and with agreement of counsel, the trial court questioned the jury forewoman. The forewoman told the

trial court that Juror 8 had men tioned to her that she had spoke n with Mr. Morris and that two other jurors were potentially within hearing distance at the time. The forewoman, however, said she was unable to understand what Juror 8 said because she mumbled and also definitively stated

that Juror 8 had not shared the conversation with the jury as a whole during deliberations. Based on the statements of Juror 8 and the forewoman, the trial court denied Mr. Morris’ motion for a mistrial, determining that, if any party was prejudiced, it was the State because of Juror 8’s statement of sympathy to Mr. Morris. {¶32} There is no question that Juror 8 committed misconduct; therefore, the issue is whether Mr. Morris suffered any prejudice as a result of the misconduct. The trial court evaluated the credibility of Juror 8 and the jury forewoman. The forewoman related that Juror 8

told her that she had felt awkward in the elev ator and did not know what to do. Importantly, Juror 8 denied ever telling the jury about the incident, which the forewoman corroborated. In evaluating credibility, the trial court was entitled to believe or disbelieve all or part of the statements of Juror 8 and the jury forewoman. Based upon its assessment of credibility, the trial

court concluded that there wa s no indication that the jury was affected by the improper

conversation between Mr. Morris and Juror 8. U pon careful review of the record, we cannot conclude that the trial court’s determination that Mr. Morris’ substantial rights were not violated by the conversation in the elevator was unreasonabl e. Accordingly, we cannot say that the trial

court abused its discretion wh en it denied Mr. Morris’ motion for a mistrial.12

{¶33} His first assignment of error is overruled.

III. {¶34} Mr. Morris’ assignments of error are overruled. The judgment of the Summit County Court of Common Pleas is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the manda te, pursuant to App.R. 27. Immediately upon the filing hereof, this docum ent shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22 (E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant.

EVE V. BELFANCE FOR THE COURT

WHITMORE, J. MOORE, J. CONCUR13

APPEARANCES: SHUBHRA N. AGARWAL, Attorney at Law, for Appellant. SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.