[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 : : : : : : : : : : Appellate Case No. 28976

Trial Court Case No. 2019-CR-3539 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . 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. 009921 8, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Ap pellate Division, Montgomery County Courts Building, 301 West Third Street, Dayto n, Ohio 45422 Attorney for Plaintiff-Appellee JOHNNA M. SHIA, Atty. Reg. No. 0067685, P.O. Box 145, Springbor o, Ohio 45066 Attorney for Defendant-Appellant

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

TUCKER, P.J.-2- {¶ 1} Defendant-appellant Charles E. Bursey, III appeals from his con victions for having weapons under disability an d possession of drugs. Burse y 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 over ruling 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 travel led to Sheikhs Bar and Grill to perform a permit check, which he descr ibed as a routine check frequently done by the police department to ensure that local b ars are in compliance with their permits and to deter illegal activity. Hoff parked his c ruiser in the tavern’s parking lot and walked toward the entrance to the bar. At that time, h e 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 possi bly unconscious. Hoff shined his flashlight through the windshield, but Bursey did no t 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 wen t to the passenger window to determine whether the car was in park and whether Bursey’s f oot was on the brake. As Hoff shined his flashlight through the passenger window, he noted Bursey still failed-3- 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 tha t he would not be harmed if the Jeep moved or the gun discharged. As back up 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 notic ed 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 place d handcuffs on Bursey. When Hoff approached the vehicle, he smelled the odor of mariju ana 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 bulle t loaded in the chamber, and the magazine contained 31 rounds of ammunition. The gun wa s later determined to be fully operable. Clear gel caps, which Hoff suspected contai ned heroin, were located in the driver’s side door compartment and the glove box. The s ubstance 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 acet yl 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 o ne count of possession of-4- cocaine (less than 5 grams) in violation of R.C. 2925.11(A). B ursey filed a motion to suppress evidence in January 2020. Following a hearing, the tr ial 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 capsul es provided testimony regarding her testing and the results thereof. Further, the St ate presented the testimony of a criminal investigator who testified regarding recorded tel ephone calls made by Bursey while he was in jail awaiting trial. {¶ 9} Bursey also testified at trial. According to Bursey, he had be en in the Jeep with friends during the course of the day prior to going to She ikhs. 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 dro wsy and decided to remain in the vehicle; he began to get hot so he crawled into the driv er’s seat and turned the Jeep on so that the vehicle’s air conditioner could be activate d. Bursey testified that he fell asleep but had awakened and was exiting the Jeep to go int o the bar when the police

officers confronted him. {¶ 10} Bursey further testified that the Jeep did not belong to him an d he did not have a gun in his lap when he fell asleep in the vehicle. Burs ey 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 a dmitted that he did not remember whether the phones were actually in his lap at tha t time. {¶ 11} Following the trial, the jury convicted Bursey on all the charg es except for the charge of improper handling of a firearm in a motor vehicle . The trial court sentenced-5- 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 ques tion of law and fact. When considering a motion to suppress, the trial cour t assumes the role of trier of fact and is therefore in the best position to resolve factua l 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 cou rt must accept the trial court's findings of fact if they are supported by competent, cr edible evidence. * * * Accepting these facts as true, the appellate court must then in dependently 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 prohibit s 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 permi ts a-6- warrantless seizure of incriminating evidence when “(1) the off icers 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 l awful 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 permitte d 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 t he lone, male occupant appeared to be either asleep or unconscious while the vehicle w as running. H off then shined his flashlight, which he described as being more powerfu l than average, through the windshield and noted that Bursey did not react. Hoff decid ed to conduct a check on Bursey to make sure he was not unconscious due to a medical pro blem or intoxication. Hoff also testified that he had a concern for the general safet y 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 wa s 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 wit h

1 Hoff used a flashlight to illuminate the interior of the vehicl e. But “use of a flashlight by a police officer does not negate the fact that an item is other wise 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).-7- 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 c heck on Bursey’s well-being and ensuring the safety of the general public. This minimal in trusion, if any, was legitimate, and it created a su fficient basis to permit Hoff to investigate further. {¶ 18} Hoff testified that, after he observed Bursey’s failure to reac t to the flashlight and the handgun in Bursey’s lap, he wanted to investigate wheth er 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 concent ration of alcohol specified in division (A)(1)(b), (c), (d), or (e) of section 4511.19 of t he 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 ignitio n device.” R.C. 4511.194(A)(2). Hoff also testified that Bursey’s possession o f 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 offi cer may detain an individual without probable cause when the officer has reasonable suspicio n, 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 mo re than 300 hours of firearm training in addition to his regular training.-8- some minimal level of objective justification, “that is, someth ing more than an inchoate and unparticularized suspicion or ‘hunch,’ but less than the le vel 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, Ho ff had reasonable suspicion, at the very least, to conduct a Terry investigative detention. {¶ 20} As stated, as backup officers arrived, Bursey began to move aro und inside the vehicle, and he moved in s uch a manner as to cause Hoff to think he was attempting to conceal something. Bursey then exited the car of his own ac cord before noticing the officers. According to Hoff, when he approached the Jeep, he n oted the smell of marijuana emanating from within it. 3 The odor of marijuana provided both suspicion that Bursey, who was the only occupan t, was in possession of marijua na 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 pro bable 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 cou rt did not err in finding that Hoff’s search of the vehicle was legally permit ted. The plain-view observation of the handgun on Bursey’s lap, as well as the obse rvation 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, w hich established

3 Hoff testified that he is familiar with the smell of both raw a nd burned marijuana as a result of his involvement with multiple law enforcement task fo rces. The trial court specifically found Hoff’s testimony credible, and we find no ba sis to disagree.-9- 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 t he 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 e vidence 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 a ttitude 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 ph otographs taken by Hoff which depicted the interior of the Jeep and the evidenc e 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 contra band show it laid neatly on what appears to be a desk or a table. He further claims Hof f had “difficulty” explaining where the contraband was located. Bursey argues this “may [hav e] confuse[d] the issue of constructive possession.” Bursey also contends that, becaus e the actual drugs and-10- 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 eviden ce is repetitive will not

be considered reversible error unless the defendant was unfairl y prejudiced thereby.” (Citations omitted.) State v. Baker , 2d Dist. Montgomery No. 23933, 2011-Ohio-1820, ¶ 16. “The pertinent question is whether the evidence was unfa irly prejudicial to the defendant, not whether it was unfavorable to him.” Id. {¶ 27} In this case, photos showing the interior of the Jeep were rele vant to Hoff’s testimony regarding the location of the gun and drugs. The pho tos also helped to establish the issues of Hoff’s proximity to, and the accessibil ity of, the gun and drugs, issues relevant to constructive possession. We find no merit i n the claim that Hoff had difficulty explaining the photos, and we find no basis for conc luding the photos were likely to confuse the jury regarding the issue of constructive possess ion. 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, a lthough 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 ex plain, how this resulted in any unfair prejudice. Therefore, we conclude the trial court d id 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 t hat although the capsules-11- were properly placed in the police property room by Hoff, there was no evidence presented regarding how the capsules were conveyed to the BCI l aboratory 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 c hain 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 rea sonably 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 ex ists 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 break s in the chain of custody go to the weight afforded to the evidence, not to its admissibi lity.” Id. {¶ 30} Hoff testified that he placed the capsules in packaging which h e sealed and initialed. He also placed an evidence tag on the package, whic h he identified as having his writing. The forensic scientist who then tested the capsul es at the BCI lab testified that the evidence package was sealed when she received it for t esting. 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 ca psules admitted at trial were in the packaging sealed and sent to BCI. {¶ 31} Based upon this evidence, we conclude that although the State d id not present direct evidence of the chain of custody regarding who t ransported the capsules-12- to BCI from the police property room, the trial court reasonabl y inferred that the capsules that were tested had not been compromised. Thus, the trial cou rt did not abuse its discretion in admitting the capsules and the testimony regardin g 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 ja il. The record shows the State presented the testimony of its investigator, Tyson Dillon , who testified that the Montgomery County Jail uses the P ay Tel communication system to record outgoing calls made by inmates. He testified that the system tracks the inmat es’ 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 rec ording 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 t o 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 recor ded. Dillon testified that he had placed his initials on the CD-R disk; he then ident ified his initials and testified that Exhibit 9 was the CD-R of the two telephone calls he creat ed. 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 difficul t for you to hear; could you hear it from where you’re at?” Tr. 187. When the prosecutor interj ected and asked if it was a fair and accurate recording to the recorded calls, Dillon rep lied “Briefly, well, yeah - -.” Dillon then stated, “[i]t appears to be, yes.” Id.-13- {¶ 34} Defense counsel then objected to the introduction of the exhibi t. 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 w as initially played for the jury. Tr. 190. The State then replayed the recording, after w hich 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 conclud e 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 pr oper authentication, as to the correct procedure for doing so. We disagree. Instea d, a review of that portion of the transcript demonstrates that the court was merely attemp ting to clarify the gist of defense counsel’s objection, which was originally stated somewh at confusingly but which was ultimately clarified as being a failure to properly authent icate. Thus, any claim of impropriety is without merit. {¶ 36} Bursey also raises an issue regarding the State’s failure to pr ovide evidence “concerning the direct link,” “voice recognition,” or the day t he calls were made. Based upon this, he argues the State did not “lay the proper foundati on 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.-14- 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 defen dant must establish that trial counsel's performance was deficient and th e 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 ineffecti ve 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 th ere is “a reasonable probability that, but for counsel's errors, the p roceeding'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 obj ect to the introduction of the drug capsules and to the introduction of th e photographs taken by Hoff. However, he admits counsel “may have strategically argued the e vidence’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, t he 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 ass istance [claim], nor could such-15- 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 deficien cies in the evidence during closing argument. And counsel may well have decided tha t doing so was a better strategy than making an objection that would almost certainly h ave been overruled. This court will not second guess “debat able” strategies or tactics u sed during trial. Ropp at ¶ 67. {¶ 42} Because we cannot conclude that the failure to object to the ad mission of the photos and drugs constituted ineffective assistance of coun sel, 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 sufficie nt to prove he was in possession of either the gun or the drugs. {¶ 45} “A sufficiency of the evidence argument disputes whether the St ate has presented adequate evidence on each element of the offense to a llow 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, 678-16- 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 evi dence admitted at trial to determine whether such evidence, if believ ed, would convince the average mind of the defendant's guilt beyond a rea sonable doubt. The relevant inquiry is whether, after viewing the evide nce in a light most favorable to the prosecution, any rational trier of fact c ould 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 th e believability of the evidence and asks which of the competing inferences sugg ested 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 i n resolving conflicts in the evidence, the jury clearly lost its way and created such a mani fest 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 exceptiona l 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 c oncepts, manifest weight may subsume sufficiency in conducting the analy sis; that is, a finding that a conviction is supported by the manifest weight of the evidenc e necessarily includes a-17- finding of sufficiency.” (Citations omitted.) State v. McC rary, 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 convicti on is supported by the weight of the evidence will also be dispositive of the issue of suffic iency.” (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 exercis e 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 wha t extent, to credit the testimony of particular witnesses is within the peculiar compet ence of the factfinder, who

has seen and heard the witness.” State v. Law son, 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 un der 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 posse ssion or constructive possession. State v. Mabry , 2d Dist. Montgomery No. 21569, 2007-Ohio-1895, ¶ 18. “A person acts knowingly, regardless of purpose, when the perso n is aware that the-18- person's conduct will probably cause a certain result or will p robably be of a certain nature. A person has knowledge of circumstances when the perso n is aware that such circumstances probably exist.” R.C. 2901.22(B). {¶ 50} “ ‘Possess’ or ‘possession’ means having control over a thing o r 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 constructi ve. State v. Wolery , 46 Ohio St.2d 316, 329, 348 N.E.2d 351 (1976). A person has const ructive possession of an object when he is conscious of the presence of the object an d able to exercise dominion and control over it, even if it is not within his imme diate 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 possesse d 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 proba tive 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 Je ep and observed a handgun in Bursey’s lap. The jury was free to belie ve this testimony over that of Bursey and could have reasonably relied on this evidenc e to determine that Bursey had actual possession of the gun. Additionally, while Hoff was watching the vehicle, he-19- observed Bursey bend forward and downward as if to conceal some thing. 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 cl ose proximity to the handgun such that he was capable of exercising dominion and con trol 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 possess ion of the drugs at the time Hoff observed him, but as stated above, the S tate 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 b elong to him and that he did not place, and had no knowledge of, either the gun or the d rugs in the vehicle. When asked by the prosecutor whether he had been involved in obtaini ng 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 furthe r presented evidence that Bursey made a call from jail to a woman whom he instructed to p ick up the Jeep at the bar. Bursey later indicated that the Jeep had probably been to wed 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 state d he had placed rent money in the driver’s door pocket. {¶ 54} The discussions in the recorded calls belied Bursey’s claim tha t 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 B ursey did own the Jeep-20- and that his claim otherwise was not credible. Further, the ju ry could have inferred from Bursey’s statement that he had money in the driver’s door pocke t that he not only owned the Jeep, but was aware of the contents of the door pocket, whi ch included 16 drug capsules. Finally, the jury could have reasonably found constr uctive possession of drugs given their close proximity and accessibility to Bursey, who wa s in the driver’s seat of a vehicle which he occupied. {¶ 55} We conclude the State presented evidence sufficient to demonstr ate actual possession of the handgun and constructive possession of the dr ug capsules. We further find that his convictions for possession of those items were not against the manifest weight of the evidence. Therefore, the fourth assignm ent 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