[Cite as State v. Bursey, 2021-Ohio-2857.]

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 MONTGOMERY COUNTY 

STATE OF OHIO 

Plaintiff-Appellee 

v. 

CHARLES E. BURSEY, III 

Defendant-Appellant 

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Appellate Case No. 28976 

Trial Court Case No. 2019-CR-3539 

(Criminal Appeal from 

Common Pleas Court) 

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O P I N I O N 

Rendered on the 20th day of August, 2021. 

. . . . . . . . . . . 

MATHIAS H. HECK, JR., by J. JOSHUA RIZZO, Atty. Reg. No. 0099218, Assistant 

Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, 

Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422

 Attorney for Plaintiff-Appellee 

 

JOHNNA M. SHIA, Atty. Reg. No. 0067685, P.O. Box 145, Springboro, Ohio 45066 

 Attorney for Defendant-Appellant 

 . . . . . . . . . . . . . 

 

TUCKER, P.J. 
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{¶ 1} Defendant-appellant Charles E. Bursey, III appeals from his convictions for 

having weapons under disability and possession of drugs. Bursey claims the convictions 

were not supported by sufficient evidence and were against the manifest weight of the 

evidence. He further claims that the trial court erred by overruling his motion to suppress 

and abused its discretion regarding the admission of evidence. Finally, Bursey contends 

his trial counsel was ineffective. 

{¶ 2} Because we find no merit to Bursey’s arguments, the judgment of the trial 

court is affirmed. 

I. Facts and Procedural History 

{¶ 3} On September 6, 2019, Trotwood Police Officer Roger Hoff travelled to 

Sheikhs Bar and Grill to perform a permit check, which he described as a routine check 

frequently done by the police department to ensure that local bars are in compliance with 

their permits and to deter illegal activity. Hoff parked his cruiser in the tavern’s parking 

lot and walked toward the entrance to the bar. At that time, he noticed a Jeep that was 

backed into a parking spot but still running. As he passed the front of the Jeep, Hoff 

observed a man lying back with his head slumped forward and his eyes closed. The 

man, later identified as Bursey, appeared to be asleep or possibly unconscious. Hoff 

shined his flashlight through the windshield, but Bursey did not react. 

{¶ 4} Hoff then went to the back of the car and called in the license plate number 

for a vehicle check. He also called for backup. Hoff then went to the passenger window 

to determine whether the car was in park and whether Bursey’s foot was on the brake. 

As Hoff shined his flashlight through the passenger window, he noted Bursey still failed 
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to react. Hoff also observed a Glock handgun with an extended magazine in Bursey’s 

lap. 

{¶ 5} Hoff moved toward another vehicle and positioned himself so that he would 

not be harmed if the Jeep moved or the gun discharged. As backup arrived, Hoff noted 

Bursey began to move. Hoff observed Bursey leaning forward and down as if attempting 

to conceal something. Bursey was exiting the car when he noticed Hoff and the other 

officers, all of whom had their service weapons drawn. Bursey complied with instructions 

to keep his hands visible. One of the assisting officers placed handcuffs on Bursey. 

When Hoff approached the vehicle, he smelled the odor of marijuana emanating from 

within. No other occupants were in the car. 

{¶ 6} A search of the Jeep was conducted. The gun, with an inserted magazine, 

was located under the front driver’s seat. The gun had a bullet loaded in the chamber, 

and the magazine contained 31 rounds of ammunition. The gun was later determined to 

be fully operable. Clear gel caps, which Hoff suspected contained heroin, were located 

in the driver’s side door compartment and the glove box. The substance in the capsules 

was tested by a forensic scientist employed by the Ohio Bureau of Criminal Investigation 

(BCI). All of the capsules contained heroin and fentanyl. One of the capsules also 

contained cocaine. Sixteen of the capsules also contained acetyl fentanyl. 

{¶ 7} On December 3, 2019, Bursey was indicted on one count of having weapons 

under disability in violation of R.C. 2923.13(A)(3), one count of improper handling of a 

firearm in a motor vehicle in violation of R.C. 2923.16(B), one count of possession of a 

fentanyl-related compound in violation of R.C. 2925.11(A), one count of possession of 

heroin (10-50 unit dose) in violation of R.C. 2925.11(A), and one count of possession of 
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cocaine (less than 5 grams) in violation of R.C. 2925.11(A). Bursey filed a motion to 

suppress evidence in January 2020. Following a hearing, the trial court denied the 

motion. 

{¶ 8} The matter proceeded to trial in October 2020. Hoff testified to the abovecited facts, while the forensic scientist who tested the capsules provided testimony 

regarding her testing and the results thereof. Further, the State presented the testimony 

of a criminal investigator who testified regarding recorded telephone calls made by Bursey 

while he was in jail awaiting trial. 

{¶ 9} Bursey also testified at trial. According to Bursey, he had been in the Jeep 

with friends during the course of the day prior to going to Sheikhs. Bursey testified that 

his girlfriend had been driving. He testified that they parked at the bar and the others 

went inside. However, Bursey testified that he was feeling drowsy and decided to remain 

in the vehicle; he began to get hot so he crawled into the driver’s seat and turned the 

Jeep on so that the vehicle’s air conditioner could be activated. Bursey testified that he 

fell asleep but had awakened and was exiting the Jeep to go into the bar when the police 

officers confronted him. 

{¶ 10} Bursey further testified that the Jeep did not belong to him and he did not 

have a gun in his lap when he fell asleep in the vehicle. Bursey testified that he normally 

keeps his two cellphones in his lap whenever he is sitting in a car, and that Hoff may have 

seen the phones and thought they were a gun. However, Bursey admitted that he did 

not remember whether the phones were actually in his lap at that time. 

{¶ 11} Following the trial, the jury convicted Bursey on all the charges except for 

the charge of improper handling of a firearm in a motor vehicle. The trial court sentenced 
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him to an aggregate prison term of 12 months. 

{¶ 12} Bursey appeals. 

II. Motion to Suppress 

{¶ 13} In his first assignment of error, Bursey asserts: 

THE TRIAL COURT ERRED WHEN IT OVERRULED BURSEY’S MOTION 

TO SUPPRESS THE EVIDENCE. 

{¶ 14} “Appellate review of a motion to suppress presents a mixed question of law 

and fact. When considering a motion to suppress, the trial court assumes the role of trier 

of fact and is therefore in the best position to resolve factual questions and evaluate the 

credibility of witnesses.” (Citation omitted.) State v. Burnside, 100 Ohio St.3d 152, 2003-

Ohio-5372, 797 N.E.2d 71, ¶ 8. “Consequently, an appellate court must accept the trial 

court's findings of fact if they are supported by competent, credible evidence. * * * 

Accepting these facts as true, the appellate court must then independently determine, 

without deference to the conclusion of the trial court, whether the facts satisfy the 

applicable legal standard.” (Citations omitted.) Id.

{¶ 15} The Fourth Amendment to the United States Constitution prohibits 

unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 8, 88 S.Ct. 1868, 20 

L.Ed.2d 889 (1968). Warrantless searches and seizures violate this prohibition unless 

conducted pursuant to one of the “few specifically established and well-delineated 

exceptions.” (Citations omitted.) Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 

19 L.Ed.2d 576 (1967). 

{¶ 16} One of those exceptions is the plain view doctrine, which permits a 
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warrantless seizure of incriminating evidence when “(1) the officers are lawfully positioned 

in a place from which the object can be plainly viewed, (2) the incriminating character of 

the object is immediately apparent, and (3) the officer has a lawful right of access to the 

object itself.” State v. Garrett, 2d Dist. No. 27630, 2018-Ohio-4530, 123 N.E.3d 327, 

¶ 22, quoting State v. Goode, 2d Dist. Montgomery No. 25175, 2013-Ohio-958, ¶ 26, 

citing Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) 

and Horton v. California, 496 U.S. 128, 136-137, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). 

{¶ 17} In this case, there is no doubt that Hoff was lawfully permitted to view the 

interior of the Jeep. As Hoff was walking through the parking lot toward the entrance of 

the bar, he glanced into the front of the Jeep and noted that the lone, male occupant 

appeared to be either asleep or unconscious while the vehicle was running. Hoff then 

shined his flashlight, which he described as being more powerful than average, through 

the windshield and noted that Bursey did not react. Hoff decided to conduct a check on 

Bursey to make sure he was not unconscious due to a medical problem or intoxication. 

Hoff also testified that he had a concern for the general safety of the public because 

Bursey appeared to be asleep or unconscious in a running car in a parking lot; Hoff 

wanted to look in the passenger window to ensure the vehicle was in park. When Hoff 

again shined his flashlight and looked in the passenger window, he again noted that 

Bursey did not react.1 He further observed what he recognized as a Glock firearm with 

1 Hoff used a flashlight to illuminate the interior of the vehicle. But “use of a flashlight by 

a police officer does not negate the fact that an item is otherwise in plain view or that its 

discovery is inadvertent.” State v. White, 2d Dist. Montgomery No. 18731, 2002 WL 

63294, *5 (Jan. 18, 2002), quoting State v. Ward, 2d Dist. Montgomery No. 14186, 1994 

WL 645964 (Nov. 16, 1994); Texas v. Brown, 460 U.S. 730, 740, 103 S.Ct. 1535, 75 

L.Ed.2d 502 (1983). 
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an extended magazine in Bursey’s lap.2 At this point, Hoff was outside of Bursey’s 

vehicle in a place he was permitted to be, conducting a brief check on Bursey’s well-being 

and ensuring the safety of the general public. This minimal intrusion, if any, was 

legitimate, and it created a sufficient basis to permit Hoff to investigate further. 

{¶ 18} Hoff testified that, after he observed Bursey’s failure to react to the flashlight 

and the handgun in Bursey’s lap, he wanted to investigate whether Bursey was violating 

R.C. 4511.194(B)(2), which provides that “[n]o person shall be in physical control of a 

vehicle * * * if, at the time of the physical control, * * * [t]he person's whole blood, blood 

serum or plasma, breath, or urine contains at least the concentration of alcohol specified 

in division (A)(1)(b), (c), (d), or (e) of section 4511.19 of the Revised Code.” “ ‘Physical 

control’ means being in the driver's position of the front seat of a vehicle * * * and having 

possession of the vehicle's * * * ignition key or other ignition device.” R.C. 

4511.194(A)(2). Hoff also testified that Bursey’s possession of the gun raised an issue 

as to whether Bursey was in violation of R.C. 2923.16(B), which states, “[n]o person shall 

knowingly transport or have a loaded firearm in a motor vehicle in such a manner that the 

firearm is accessible to the operator or any passenger without leaving the vehicle.” 

{¶ 19} Another of the recognized exceptions to the warrant requirement is an 

investigative detention, commonly referred to as the Terry stop. Under Terry v. Ohio, 

392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), a police officer may detain an individual 

without probable cause when the officer has reasonable suspicion, based on specific, 

articulable facts, that criminal activity is afoot. Id. at 21. Reasonable suspicion entails 

2 Hoff testified he is a certified firearms instructor and has more than 300 hours of firearm 

training in addition to his regular training. 
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some minimal level of objective justification, “that is, something more than an inchoate 

and unparticularized suspicion or ‘hunch,’ but less than the level of suspicion required for 

probable cause.” State v. Jones, 70 Ohio App.3d 554, 556-557, 591 N.E.2d 810 (2d 

Dist.1990), citing Terry at 27. Upon observing Bursey asleep or unconscious with what 

appeared to be a loaded handgun in the parking lot of a bar, Hoff had reasonable 

suspicion, at the very least, to conduct a Terry investigative detention. 

{¶ 20} As stated, as backup officers arrived, Bursey began to move around inside 

the vehicle, and he moved in such a manner as to cause Hoff to think he was attempting 

to conceal something. Bursey then exited the car of his own accord before noticing the 

officers. According to Hoff, when he approached the Jeep, he noted the smell of 

marijuana emanating from within it.3 The odor of marijuana provided both suspicion that 

Bursey, who was the only occupant, was in possession of marijuana and that the 

contraband was located in the vehicle. “The smell of marijuana, alone, by a person 

qualified to recognize the odor, is sufficient to establish probable cause to conduct a 

search.” State v. Moore, 90 Ohio St.3d 47, 51, 734 N.E.2d 804 (2000), syllabus. 

{¶ 21} Based upon the record before us, we conclude that the trial court did not err 

in finding that Hoff’s search of the vehicle was legally permitted. The plain-view 

observation of the handgun on Bursey’s lap, as well as the observation that Bursey was 

non-responsive in a bar parking lot, established probable cause to enter the vehicle to 

seize the gun. However, before Hoff could do so, Bursey exited the vehicle of his own 

accord. When Hoff approached the Jeep, he smelled marijuana, which established 

3 Hoff testified that he is familiar with the smell of both raw and burned marijuana as a 

result of his involvement with multiple law enforcement task forces. The trial court 

specifically found Hoff’s testimony credible, and we find no basis to disagree. 
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probable cause to search the vehicle. 

{¶ 22} Accordingly, the first assignment of error is overruled. 

III. Evidentiary Issues 

{¶ 23} Bursey’s second assignment of error states: 

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ADMITTED 

THE PHOTOS, DRUGS, AND THE JAIL CALLS AT TRIAL. 

{¶ 24} “The admission or exclusion of relevant evidence rests within the sound 

discretion of the trial court.” State v. Williams, 2d Dist. Montgomery No. 26369, 2016-

Ohio-322, ¶ 17, quoting State v. Sage, 31 Ohio St.3d 173, 180, 510 N.E.2d 343 (1987). 

Thus, a trial court’s decision regarding the admissibility of evidence will not be reversed 

on appeal absent an abuse of discretion. O'Brien v. Angley, 63 Ohio St.2d 159, 163, 407 

N.E.2d 490 (1980). The term “abuse of discretion” implies an attitude on the part of the 

trial court that is arbitrary, capricious or unconscionable. AAAA Ents., Inc. v. River Place 

Community Redevelopment, 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). 

{¶ 25} Bursey first asserts that the trial court erred by admitting photographs taken 

by Hoff which depicted the interior of the Jeep and the evidence collected therein. 

Bursey’s main complaints are that the photographs of the Jeep’s interior were taken after 

the contraband was removed and that the pictures of that contraband show it laid neatly 

on what appears to be a desk or a table. He further claims Hoff had “difficulty” explaining 

where the contraband was located. Bursey argues this “may [have] confuse[d] the issue 

of constructive possession.” Bursey also contends that, because the actual drugs and 
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gun were shown to the jury, the photographs were unnecessarily cumulative and 

prejudicial. 

{¶ 26} In accord with Evid.R. 403, a trial court may exclude evidence when its 

probative value is “substantially outweighed by considerations of undue delay or needless 

presentation of cumulative evidence. The mere fact that evidence is repetitive will not 

be considered reversible error unless the defendant was unfairly prejudiced thereby.” 

(Citations omitted.) State v. Baker, 2d Dist. Montgomery No. 23933, 2011-Ohio-1820, 

¶ 16. “The pertinent question is whether the evidence was unfairly prejudicial to the 

defendant, not whether it was unfavorable to him.” Id. 

{¶ 27} In this case, photos showing the interior of the Jeep were relevant to Hoff’s 

testimony regarding the location of the gun and drugs. The photos also helped to 

establish the issues of Hoff’s proximity to, and the accessibility of, the gun and drugs, 

issues relevant to constructive possession. We find no merit in the claim that Hoff had 

difficulty explaining the photos, and we find no basis for concluding the photos were likely 

to confuse the jury regarding the issue of constructive possession. Hoff explained that 

the photos were merely of the Jeep’s interior; he did not claim they showed the gun or 

drug capsules prior to their removal from the Jeep. Further, although the introduction of 

the photos of the gun and drug capsules was cumulative in that the actual gun and drugs 

were introduced at trial, we cannot say, and Bursey does not explain, how this resulted in 

any unfair prejudice. Therefore, we conclude the trial court did not abuse its discretion 

by allowing the introduction of the photographs. 

{¶ 28} Bursey next asserts that the State failed to establish a proper chain of 

custody regarding the drug capsules. Specifically, he claims that although the capsules 
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were properly placed in the police property room by Hoff, there was no evidence 

presented regarding how the capsules were conveyed to the BCI laboratory for testing. 

Thus, he contends that “alterations, substitution and tampering could have taken place.” 

{¶ 29} “Although the state bears the burden of establishing a proper chain of 

custody, that duty is not absolute.” State v. Blevins, 36 Ohio App.3d 147, 150, 521 

N.E.2d 1105 (10th Dist.1987), citing State v. Moore, 47 Ohio App.2d 181, 353 N.E.2d 866 

(9th Dist.1973). “The state need only establish that it is reasonably certain that 

substitution, alteration or tampering did not occur.” Id. “Moreover, a chain of custody 

can be established by direct testimony or by inference.” In re Lemons, 77 Ohio App.3d 

691, 693, 603 N.E.2d 315 (8th Dist.1991), citing State v. Conley, 32 Ohio App.2d 54, 60, 

288 N.E.2d 296 (3rd Dist.1971). “The issue of whether there exists a break in the chain 

of custody is a determination left up to the trier of fact.” Id., citing Columbus v. Marks, 

118 Ohio App. 359, 194 N.E.2d 791 (10th Dist.1963). “Any breaks in the chain of custody 

go to the weight afforded to the evidence, not to its admissibility.” Id.

{¶ 30} Hoff testified that he placed the capsules in packaging which he sealed and 

initialed. He also placed an evidence tag on the package, which he identified as having 

his writing. The forensic scientist who then tested the capsules at the BCI lab testified 

that the evidence package was sealed when she received it for testing. She also testified 

that, when evidence comes into BCI, it is given a barcode with its own case number and 

item number. Both Hoff and the scientist testified that the capsules admitted at trial were 

in the packaging sealed and sent to BCI. 

{¶ 31} Based upon this evidence, we conclude that although the State did not 

present direct evidence of the chain of custody regarding who transported the capsules 
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to BCI from the police property room, the trial court reasonably inferred that the capsules 

that were tested had not been compromised. Thus, the trial court did not abuse its 

discretion in admitting the capsules and the testimony regarding those capsules and their 

contents. 

{¶ 32} Finally, Bursey asserts that the trial court erred in admitting recordings 

purporting to be telephone conversations Bursey had while in jail. The record shows the 

State presented the testimony of its investigator, Tyson Dillon, who testified that the 

Montgomery County Jail uses the Pay Tel communication system to record outgoing calls 

made by inmates. He testified that the system tracks the inmates’ numbers and any calls 

they make. The system generates a spreadsheet which sets forth the inmate number, 

calls made, date and time of the calls, and the size of the recording file. Dillon further 

testified that only law enforcement and persons granted special permission are permitted 

to access the system. He testified he was granted permission to access the spreadsheet 

and to record two calls made by Bursey from the jail. 

{¶ 33} The State then presented its Exhibit 9, which Dillon testified was a CD-R of 

two calls made by Bursey, which Dillon had downloaded and recorded. Dillon testified 

that he had placed his initials on the CD-R disk; he then identified his initials and testified 

that Exhibit 9 was the CD-R of the two telephone calls he created. The State then played 

the disc from a computer placed near the jury. Afterward, the prosecutor addressed 

Dillon as follows: “I know that was probably a little difficult for you to hear; could you hear 

it from where you’re at?” Tr. 187. When the prosecutor interjected and asked if it was 

a fair and accurate recording to the recorded calls, Dillon replied “Briefly, well, yeah - -.” 

Dillon then stated, “[i]t appears to be, yes.” Id. 
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{¶ 34} Defense counsel then objected to the introduction of the exhibit. After 

discussions between the court and counsel, the court sustained the objection. The 

prosecutor then began to question Dillon again, at which point Dillon indicated that he 

had not been “able to hear [the recording] very well” when it was initially played for the 

jury. Tr. 190. The State then replayed the recording, after which Dillon testified that it 

was a true and accurate recording of the evidence he downloaded from the Pay Tel 

system. The trial court then admitted the exhibit. We conclude that the error identified 

by Bursey was properly remedied in the trial court, and thus we find no error in the 

introduction of the exhibit. 

{¶ 35} We also note that Bursey claims the trial court instructed the prosecutor, 

whom he claims appeared confused concerning how to conduct a proper authentication, 

as to the correct procedure for doing so. We disagree. Instead, a review of that portion 

of the transcript demonstrates that the court was merely attempting to clarify the gist of 

defense counsel’s objection, which was originally stated somewhat confusingly but which 

was ultimately clarified as being a failure to properly authenticate. Thus, any claim of 

impropriety is without merit. 

{¶ 36} Bursey also raises an issue regarding the State’s failure to provide evidence 

“concerning the direct link,” “voice recognition,” or the day the calls were made. Based 

upon this, he argues the State did not “lay the proper foundation linking Bursey to the 

calls.” This argument was not presented to the trial court. As such, the issue was not 

preserved for appellate review. 

{¶ 37} The second assignment of error is overruled. 
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IV. Ineffective Assistance 

{¶ 38} Bursey’s third assignment of error is as follows: 

COUNSEL WAS INEFFECTIVE FOR FAILURE TO OBJECT TO 

INADMISSIBLE EVIDENCE AT TRIAL 

{¶ 39} In order to succeed on an ineffective assistance claim, a defendant must 

establish that trial counsel's performance was deficient and the deficient performance 

prejudiced him. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 

(1984), paragraph two of the syllabus; State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 

373 (1989), paragraph two of the syllabus. The failure to make a showing of either 

deficient performance or prejudice defeats a claim of ineffective assistance of counsel. 

Strickland at 697. To establish deficient performance, a defendant must show that his 

trial counsel's performance fell below an objective standard of reasonable representation. 

Id. at 688; Bradley at 142. To establish prejudice, a defendant must show that there is 

“a reasonable probability that, but for counsel's errors, the proceeding's result would have 

been different.” State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 

204, citing Strickland at 687-688 and Bradley at paragraph two of the syllabus. 

{¶ 40} Bursey asserts counsel was ineffective because he failed to object to the 

introduction of the drug capsules and to the introduction of the photographs taken by Hoff. 

However, he admits counsel “may have strategically argued the evidence’s faults to the 

jury, [but] admission of the evidence should have been objected to.” 

{¶ 41} As stated in our discussion of the first assignment of error, the trial court did 

not abuse its discretion regarding the admission of the photos or the drugs. The “failure 

to do a futile act cannot be the basis for [an] ineffective assistance [claim], nor could such 
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a failure be prejudicial.” State v. Powell, 2019-Ohio-4345, 134 N.E.3d 1270, ¶ 69 (8th 

Dist.), citing State v. Kilbane, 8th Dist. Cuyahoga No. 99485, 2014-Ohio-1228, ¶ 37. 

Accord State v. Ropp, 2d Dist. Champaign No. 2018-CA-44, 2020-Ohio-824, ¶ 74. As 

admitted by Bursey, defense counsel argued the claimed deficiencies in the evidence 

during closing argument. And counsel may well have decided that doing so was a better 

strategy than making an objection that would almost certainly have been overruled. This 

court will not second guess “debatable” strategies or tactics used during trial. Ropp at 

¶ 67. 

{¶ 42} Because we cannot conclude that the failure to object to the admission of 

the photos and drugs constituted ineffective assistance of counsel, the third assignment 

of error is overruled. 

V. Sufficiency and Manifest Weight of the Evidence 

{¶ 43} The fourth assignment of error asserted by Bursey states: 

THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT AND 

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE TO SUSTAIN 

BURSEY’S CONVICTIONS 

{¶ 44} Bursey’s claims the State failed to introduce evidence sufficient to prove he 

was in possession of either the gun or the drugs. 

{¶ 45} “A sufficiency of the evidence argument disputes whether the State has 

presented adequate evidence on each element of the offense to allow the case to go to 

the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery 

No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 678 
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N.E.2d 541 (1997). In such situations, we apply the test from State v. Jenks, 61 Ohio 

St.3d 259, 574 N.E.2d 492 (1991), which states: 

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. The 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. 

(Citation omitted.) Id. at paragraph two of the syllabus. 

{¶ 46} In contrast, “[a] weight of the evidence argument challenges the believability 

of the evidence and asks which of the competing inferences suggested by the evidence 

is more believable or persuasive.” (Citation omitted.) Wilson at ¶ 12. In this situation, a 

“ ‘court, reviewing the entire record, weighs the evidence and all reasonable inferences, 

considers the credibility of witnesses and determines whether in resolving conflicts in the 

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

that the conviction must be reversed and a new trial ordered. The discretionary power 

to grant a new trial should be exercised only in the exceptional case in which the evidence 

weighs heavily against the conviction.’ ” Thompkins at 387, quoting State v. Martin, 20 

Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). 

{¶ 47} “Although sufficiency and manifest weight are different legal concepts, 

manifest weight may subsume sufficiency in conducting the analysis; that is, a finding that 

a conviction is supported by the manifest weight of the evidence necessarily includes a 
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finding of sufficiency.” (Citations omitted.) State v. McCrary, 10th Dist. Franklin No. 10AP881, 2011-Ohio-3161, ¶ 11. Accord State v. Winbush, 2017-Ohio-696, 85 N.E.3d 501, 

¶ 58 (2d Dist.). As a result, “a determination that a conviction is supported by the weight 

of the evidence will also be dispositive of the issue of sufficiency.” (Citations omitted.) 

State v. Braxton, 10th Dist. Franklin No. 04AP-725, 2005-Ohio-2198, ¶ 15. 

{¶ 48} Another important point is that, “[b]ecause the factfinder * * * has the 

opportunity to see and hear the witnesses, the cautious exercise of the discretionary 

power of a court of appeals to find that a judgment is against the manifest weight of the 

evidence requires that substantial deference be extended to the factfinder's 

determinations of credibility. The decision whether, and to what extent, to credit the 

testimony of particular witnesses is within the peculiar competence of the factfinder, who 

has seen and heard the witness.” State v. Lawson, 2d Dist. Montgomery No. 16288, 

1997 WL 476684, *4 (Aug. 22, 1997). 

{¶ 49} Bursey was convicted of having weapons while under disability, in violation 

of R.C. 2923.13, and possession of drugs, in violation of R.C. 2925.11(A). R.C. 2923.13 

states in pertinent part: “[u]nless relieved from disability under operation of law or legal 

process, no person shall knowingly acquire, have, carry, or use any firearm or dangerous 

ordnance * * *.” In order to “have” a firearm for purposes of R.C. 2923.13, a person must 

actually or constructively possess it. State v. Fleming, 2d Dist. Clark No. 2014-CA-136, 

2015-Ohio-5382, ¶ 26. R.C. 2925.11(A) prohibits a person from knowingly possessing 

drugs; possession of a drug may be either actual physical possession or constructive 

possession. State v. Mabry, 2d Dist. Montgomery No. 21569, 2007-Ohio-1895, ¶ 18. 

“A person acts knowingly, regardless of purpose, when the person is aware that the 
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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.” R.C. 2901.22(B). 

{¶ 50} “ ‘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). Possession can either be actual or constructive. State v. Wolery, 46 

Ohio St.2d 316, 329, 348 N.E.2d 351 (1976). A person has constructive possession of 

an object when he is conscious of the presence of the object and able to exercise 

dominion and control over it, even if it is not within his immediate physical possession. 

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

“Establishment of ownership is not required.” State v. Rastbichler, 2d Dist. Montgomery 

No. 25753, 2014-Ohio-628, ¶ 33. Readily usable drugs in close proximity to an accused 

may constitute sufficient circumstantial evidence to support a finding of constructive 

possession. State v. Ruby, 149 Ohio App.3d 541, 2002-Ohio-5381, 778 N.E.2d 101, 

¶ 36 (2d Dist.). In determining whether an individual possessed an item, it is necessary 

to consider all of the facts and circumstances surrounding the incident. Mabry at ¶ 20. 

Circumstantial evidence and direct evidence have the same probative value. State v. 

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

{¶ 51} Hoff testified that he looked in the passenger window of the Jeep and 

observed a handgun in Bursey’s lap. The jury was free to believe this testimony over 

that of Bursey and could have reasonably relied on this evidence to determine that Bursey 

had actual possession of the gun. Additionally, while Hoff was watching the vehicle, he 
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observed Bursey bend forward and downward as if to conceal something. The handgun 

was later found under Bursey’s seat and, thus, had been within reach of Bursey. 

Therefore, the evidence also demonstrated that Bursey was in close proximity to the 

handgun such that he was capable of exercising dominion and control over the gun, which 

constituted circumstantial evidence that he was in constructive possession of it. 

{¶ 52} From a review of the record, Bursey did not have actual possession of the 

drugs at the time Hoff observed him, but as stated above, the State was not required to 

prove actual possession. Bursey also asserts the State did not prove constructive 

possession because his testimony established the Jeep did not belong to him and that he 

did not place, and had no knowledge of, either the gun or the drugs in the vehicle. When 

asked by the prosecutor whether he had been involved in obtaining the temporary license 

tags on the Jeep at the time of the incident, Bursey responded negatively. 

{¶ 53} However, the State presented evidence that Bursey was the sole occupant 

of the Jeep at the time Hoff encountered him. The State further presented evidence that 

Bursey made a call from jail to a woman whom he instructed to pick up the Jeep at the 

bar. Bursey later indicated that the Jeep had probably been towed and that she could 

get the title and money out of his drawer in order to retrieve it from the towing company 

lot. Bursey also testified that, at his request, an individual he identified as “Day Day” 

obtained the temporary tags for the vehicle. Finally, he stated he had placed rent money 

in the driver’s door pocket. 

{¶ 54} The discussions in the recorded calls belied Bursey’s claim that he was 

merely a passenger in his friend’s car at the time they went to the bar. Indeed, based 

upon the calls, the jury could have reasonably concluded that Bursey did own the Jeep 
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and that his claim otherwise was not credible. Further, the jury could have inferred from 

Bursey’s statement that he had money in the driver’s door pocket that he not only owned 

the Jeep, but was aware of the contents of the door pocket, which included 16 drug 

capsules. Finally, the jury could have reasonably found constructive possession of drugs 

given their close proximity and accessibility to Bursey, who was in the driver’s seat of a 

vehicle which he occupied. 

{¶ 55} We conclude the State presented evidence sufficient to demonstrate actual 

possession of the handgun and constructive possession of the drug capsules. We 

further find that his convictions for possession of those items were not against the 

manifest weight of the evidence. Therefore, the fourth assignment of error is overruled. 

VI. Conclusion 

{¶ 56} All of Bursey’s assignments of error having been overruled, the judgment of 

the trial court is affirmed. 

. . . . . . . . . . . . . 

WELBAUM, J. and EPLEY, J., concur. 

Copies sent to: 

Mathias H. Heck, Jr. 

J. Joshua Rizzo 

Johnna M. Shia 

Hon. Timothy N. O’Connell