[Cite as State v. Adams, 2019-Ohio-1140.]

 

 

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 CLARK COUNTY 

STATE OF OHIO 

Plaintiff-Appellee 

v. 

KELLY LYNNE ADAMS 

Defendant-Appellant 

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Appellate Case No. 2018-CA-80 

Trial Court Case No. 2017-CR-671 

(Criminal Appeal from 

 Common Pleas Court) 

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O P I N I O N 

Rendered on the 29th day of March, 2019. 

. . . . . . . . . . . 

ANDREW P. PICKERING, Atty. Reg. No. 0068770, Clark County Prosecutor’s Office, 

Appellate Division, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502 

 Attorney for Plaintiff-Appellee 

 

FRANK MATTHEW BATZ, Atty. Reg. No. 0093817, 126 N. Philadelphia Street, Dayton, 

Ohio 45403 

 Attorney for Defendant-Appellant 

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FROELICH, J. 

{¶ 1} Kelly Lynne Adams appeals her conviction for possession of cocaine, a fifthdegree felony. The judgment of the trial court will be affirmed. 

Factual and Procedural Background

{¶ 2} On September 9, 2017, a caller to 911 reported seeing an unresponsive 

person lying in the corner of a backyard in Springfield. When officers from the Springfield 

Police Division arrived at the location of the suspected drug overdose, medics already 

were on the scene tending to a female lying on the ground next to a tree stump. That 

woman was Adams, who at the time was under community control for a previous 

conviction of possessing cocaine. See State v. Adams, Clark C.P. No. 2016-CR-595. 

{¶ 3} On top of the two-foot wide tree stump near Adams, then-Officer Cassidy 

Cantrell1 observed a pink and white plaid purse and “a mirror with white powder on it.” 

The purse contained various personal belongings, including several notebooks bearing 

Adams’s name. Also on or near the stump were two orange caps from syringes and one 

empty syringe. After the medics revived Adams from what appeared to be an overdose 

of heroin or another opiate, she was “[v]ery angry” and uncooperative; Adams merely 

“grunt[ed]” in response to questions about the items found on the tree stump. Over 

Adams’s objection, she was transported to Springfield Regional Medical Center. When 

police officers later attempted to interview her at the hospital, Adams asked “where her 

stuff was” but provided no information about the drugs found at the scene. 

 

1 Cantrell was a sergeant when she testified at Adams’s trial, but received the promotion 

to that rank after the incident leading to Adams’s arrest.
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{¶ 4} Officer Justin Adkins arrived at the scene after Officer Cantrell. Officer Adkins 

took photographs and collected evidence, including placing the white powder from the 

mirror into a plastic bag. Testing by the Ohio Bureau of Criminal Investigation (“BCI”) 

laboratory determined that the white substance contained less than 0.10 grams of 

cocaine. Adams thereafter was indicted for possession of cocaine in violation of R.C. 

2925.11(A), a felony of the fifth degree. 

{¶ 5} Following Adams’s plea of not guilty, her case proceeded to a jury trial. Sgt. 

Cantrell testified about responding to the scene of Adams’s apparent overdose and 

identified the photographs taken at that time. Based on her training and experience, 

Cantrell stated that the orange caps depicted in the photographs were from syringes that 

people “usually * * * use [to inject] heroin.” She indicated that she had known drug users 

to use multiple types of drugs, including both heroin and cocaine. 

{¶ 6} On cross-examination, Cantrell said that aside from Adams and emergency 

responders, the only other person she saw at the scene of Adams’s overdose was the 

unnamed man who had called 911 after spotting Adams’s unconscious body from the 

alley behind the property where she was found. Cantrell never entered the residence at 

that address. Cantrell said that she did not know who may have been living at the address 

where Adams was found, or where Adams resided. Cantrell was not aware of any 

fingerprint evidence collected at the scene, and the sergeant acknowledged she had no 

evidence that Adams had used cocaine on September 9, 2017. However, Cantrell said 

that in her training and experience, drugs typically are not left lying unattended, and often 

are found near the people using those drugs. She termed it “unlikely” that the powdery 

substance on the mirror would have been left outside by someone not present. 
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{¶ 7} Officer Adkins identified the evidence that he had collected from the scene. 

He testified that Adams was uncooperative when he and Cantrell attempted to question 

her at the hospital, and that persons revived from an overdose “more often” than not 

refuse to cooperate with law enforcement. Like Cantrell, he testified that drug addicts 

often use both heroin and cocaine, and often have drugs in close proximity when arrested. 

Officer Adkins stated that it is “not uncommon” for a person using a “downer” such as 

heroin to then use cocaine as a stimulant to counteract the heroin’s effect. 

{¶ 8} On cross-examination, Officer Adkins testified that crack cocaine “is usually 

smoked,” but that no crack pipe was found on or near Adams or among her personal 

belongings at the scene. He also confirmed that two syringe caps, but only one syringe, 

were found at the scene, and that no fingerprints were taken or blood tests conducted. 

{¶ 9} Megan Snyder of Ohio BCI testified as an expert witness regarding the 

identification of controlled substances. Snyder explained how she had determined “the 

off-white solid substance” recovered from the mirror at the scene of Adams’s overdose to 

be cocaine. She testified that the substance appeared to be crack cocaine, which is 

“typically smoked,” but can be “dissolve[d] * * * in an acidic liquid” such as lemon juice or 

vinegar, and then injected. 

{¶ 10} The defense conducted no cross-examination of Snyder, and neither side 

presented any additional witnesses. The State’s exhibits were admitted into evidence 

without objection. 

{¶ 11} In closing, the State acknowledged that Adams apparently had overdosed 

on heroin, fentanyl, or some other opiate, but argued that Adams had kept cocaine nearby 

as a way to try “to bring herself back from the low heart rate” associated with an opiate 
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overdose. The prosecutor pointed to testimony that drug users often use both heroin and 

cocaine. The State also noted that Adams claimed the purse, even though she did not 

admit ownership of the illegal drugs found adjacent to that purse. 

{¶ 12} Adams’s attorney countered that the State had failed to demonstrate 

beyond a reasonable doubt that Adams exercised control over the cocaine found on the 

mirror. Asserting that Adams did not live at the “drug house” where she overdosed,2

defense counsel argued that both the 911 call and the presence of two syringe caps but 

only one syringe indicated that someone else had been present where the cocaine was 

discovered. She further urged that the absence of a crack pipe and the State’s failure to 

show that Adams had any means available to use the crack found at the scene weighed 

against a conclusion that the cocaine belonged to Adams. Additionally, defense counsel 

advanced the absence of fingerprint evidence or blood test results connecting Adams to 

the cocaine and urged that her mere “access” to that drug did not amount to possession. 

{¶ 13} The jury found Adams guilty of possession of cocaine. Given Adams’s 

history of other drug convictions as well as a prior overdose, the trial court continued 

Adams’s previously-imposed community control for four years, imposed a 180-day jail 

sentence, and ordered her to complete a drug treatment program, serve 120 hours of 

community service, and pay costs and supervision fees. 

{¶ 14} Adams appeals that judgment, setting forth three assignments of error: 

1) [Adams]’s conviction was based on insufficient evidence as a matter of 

law. 

 

2 Despite this argument, no evidence was presented either that the location was a “drug 

house” or as to where Adams resided.
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2) [Adams]’s conviction was against the manifest weight of the evidence. 

3) [Adams] was provided with ineffective assi[s]tance of counsel. 

Assignments of Error #1, #2 –Sufficiency and Manifest Weight of Evidence 

a. Standard of Review 

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

presented adequate evidence on each element of the offense to 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, 386, 678 N.E.2d 541 (1997). “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.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), 

paragraph two of the syllabus. 

{¶ 16} 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.” Wilson at ¶ 12; see Eastley v. Volkman, 132 Ohio St.3d 

328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 19 (“ ‘manifest weight of the evidence’ refers to 

a greater amount of credible evidence and relates to persuasion”). When evaluating 

whether a conviction is against the manifest weight of the evidence, the appellate court 

must review the entire record, weigh the evidence and all reasonable inferences, consider 

witness credibility, and determine whether, in resolving conflicts in the evidence, the trier 

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

conviction must be reversed and a new trial ordered.” Thompkins at 387, citing State v. 

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). 
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{¶ 17} Because the trier of fact sees and hears the witnesses at trial, we must defer 

to the factfinder’s decisions whether, and to what extent, to credit the testimony of 

particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684 

(Aug. 22, 1997). The fact that the evidence is subject to different interpretations does not 

render the conviction against the manifest weight of the evidence. Wilson at ¶ 14. A 

judgment of conviction should be reversed as being against the manifest weight of the 

evidence only in exceptional circumstances. Martin at 175. 

b. Elements of the Offense of Possession of Cocaine 

{¶ 18} Under R.C. 2925.11(A), “[n]o person shall knowingly obtain, possess, or 

use a controlled substance or a controlled substance analog.” Even a trace amount of 

cocaine qualifies as a controlled substance. See State v. Teamer, 82 Ohio St.3d 490, 

491-492, 696 N.E.2d 1049 (1998). Possession of less than five grams of cocaine is a 

felony of the fifth degree. R.C. 2925.11(C)(4)(a). 

{¶ 19} “ ‘[P]ossession’ means having control over a thing or substance.” R.C. 

2925.01(K). Possession may be actual or constructive. State v. Wiley, 2d Dist. Darke No. 

2011-CA-8, 2012-Ohio-512, ¶ 20, citing State v. Cooper, 2d Dist. Montgomery No. 24321, 

2011-Ohio-5017, ¶ 61. “Actual possession exists when the circumstances indicate that 

an individual has or had an item within his immediate physical possession.” State v. 

Kingsland, 177 Ohio App.3d 655, 2008-Ohio-4148, 895 N.E.2d 633, ¶ 13 (4th Dist.), 

quoting State v. Fry, 4th Dist. Jackson No. 03CA26, 2004-Ohio-5747, ¶ 39. Further, “[a] 

person has constructive possession of an item when he is conscious of the presence of 

the object and able to exercise dominion and control over that item, even if it is not within 

his immediate physical possession.” State v. Rastbichler, 2d Dist. Montgomery No. 
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25753, 2014-Ohio-628, ¶ 32, quoting State v. Mabry, 2d Dist. Montgomery No. 21569, 

2007-Ohio-1895, ¶ 18. 

{¶ 20} “Dominion and control may be established by circumstantial evidence 

alone.” Fry at ¶ 39, citing State v. Taylor, 78 Ohio St.3d 15, 676 N.E.2d 82 (1997) and 

State v. Jenks, 61 Ohio St.3d 259, 272-273, 574 N.E.2d 492 (1991). Circumstantial 

evidence also may be used to establish consciousness of an item’s presence. State v. 

Riggs, 4th Dist. Washington No. 98CA39, 1999 WL 727952, *4 (Sept. 13, 1999). 

{¶ 21} Possession “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). While ownership alone therefore is not proof of 

possession, correspondingly, the State is required to prove “only * * * constructive 

possession, not ownership, of the drugs,” in order to sustain a conviction for possession 

of cocaine. State v. Greenwood, 2d Dist. Montgomery No. 19820, 2004-Ohio-2737, ¶ 12. 

{¶ 22} Although “mere proximity is in itself insufficient to establish constructive 

possession,” “proximity to an object may constitute some evidence of constructive 

possession.” Wiley, 2d Dist. Darke No. 2011-CA-8, 2012-Ohio-512, at ¶ 20, quoting 

Kingsland, 177 Ohio App.3d 655, 2008-Ohio-4148, 895 N.E.2d 633, at ¶ 13. “Thus, 

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

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

Kingsland at ¶ 13, citing Riggs at *5. 

c. Adams’s Insufficient Evidence Claim

{¶ 23} Adams contends that the evidence presented by the State was insufficient 

to prove beyond a reasonable doubt that she “knowingly exercised dominion and control 
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over” the cocaine found on the tree stump. Viewing the evidence in the light most 

favorable to the prosecution, we conclude that a reasonable jury could find that evidence 

sufficient to show that Adams possessed the cocaine present on the mirror. 

{¶ 24} Testimony established that Adams was found unconscious on the ground 

very near a tree stump on which a mirror containing cocaine was positioned. In addition, 

Adams’s purse containing her personal belongings was on that tree stump, next to the 

mirror. The cocaine was spread on the mirror as though intended for immediate use, thus 

permitting an inference that Adams was aware of the cocaine’s presence. Moreover, no 

other person was shown to have been in the immediate vicinity of the tree stump while 

the cocaine was present on the mirror, and two police officers testified that, in their 

experience, drug users typically do not leave their drugs outside and unattended, 

especially if in powder form. (See Trial Tr. pp. 61, 62, 72-73). Accordingly, the evidence 

went beyond showing Adams’s “mere proximity” to the cocaine. See Wiley at ¶ 20. Under 

the totality of the circumstances, the circumstantial evidence was sufficient to support 

inferences that Adams both was conscious of and had dominion or control over the 

cocaine, as necessary to establish her constructive possession of that drug. See 

Rastbichler, 2d Dist. Montgomery No. 25753, 2014-Ohio-628, at ¶ 32. 

{¶ 25} Adams’s first assignment of error challenging the sufficiency of the evidence 

is overruled. 

d. Adams’s Manifest Weight of the Evidence Claim

{¶ 26} In her second assignment of error, Adams contends that the jury’s verdict 

finding her guilty of possessing cocaine was against the manifest weight of the evidence. 

Having reviewed the trial record, we cannot conclude that the jury “clearly lost its way” in 
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resolving any conflicts in the evidence. See Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 

541. Accordingly, this case does not present the “exceptional circumstance[ ]” in which 

the jury’s verdict should be reversed. See Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. 

{¶ 27} Although Adams asserts on appeal that she did not live at the property 

where she and the cocaine were discovered, that alleged fact is not established in the 

record. Asked by defense counsel to confirm that Adams did not reside at the address 

where she was found, Sgt. Cantrell denied knowing where Adams lived. (Tr. p. 58). The 

defense presented no evidence indicating that Adams lived elsewhere. Nevertheless, 

defense counsel argued in closing that Adams “was found in the backyard of somebody 

else’s house.” (See Tr. p. 105). The jury apparently either rejected that argument or did 

not find it determinative as to whether Adams possessed the cocaine. Because the guilty 

verdict was supported by evidence unrelated to where Adams may have lived, the issue 

of Adams’s residence was largely immaterial. 

{¶ 28} Similarly, although defense counsel argued in both the opening statement 

and closing argument that the property where the cocaine was found was a “drug house” 

(Tr. pp. 17, 106), that argument also lacked substantiation in the record. Officer Adkins 

denied prior familiarity with that address (id., p. 77), and the defense presented no 

affirmative evidence suggesting that the address was the site of a “drug house.” Sergeant 

Cantrell testified that the only other people near the scene when she arrived were the 

medics and a man who “came running up” and said that he had called 911 after spotting 

an unresponsive Adams while he was walking through the alley behind the property. (Tr. 

p. 58). That testimony weighed against any intimation that the cocaine may have 

belonged to another drug user who fled after calling 911 to obtain assistance for the 
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overdosing Adams. No evidence was presented of any other person who may have been 

at the scene and responsible for placing the cocaine there. 

{¶ 29} Some circumstantial evidence could be interpreted to suggest that another 

person may have been at or near the tree stump before Adams was found. Defense 

counsel argued that the presence of two syringe caps, but only one syringe, indicates that 

a syringe was removed from the scene before police arrived. However, the presumed 

absence of one syringe offers no context as to when that syringe may have been 

removed. Thus, the missing syringe argument does not compel a conclusion that 

someone other than Adams was responsible for the presence of cocaine or that Adams 

was not in possession of that cocaine. 

{¶ 30} Neither does the absence of a crack pipe compel a conclusion that Adams 

did not possess the cocaine. Despite evidence that the cocaine was crack cocaine which 

most often is ingested by smoking, the BCI expert testified that crack also may be 

dissolved in an acidic liquid and injected. A syringe was available at the scene, and the 

evidence suggested that Adams had injected the drug on which she overdosed. 

{¶ 31} Although Adams argues that the State failed to prove either that Adams had 

access to acidic liquids with which she could have dissolved the solid crack found near 

her, or that she in fact had used cocaine, neither proof of available means to use a drug 

nor actual use of the drug is an element of the offense of drug possession. See R.C. 

2925.01(K). Even though the evidence suggested that the cocaine was set up for 

immediate use and the State argued that Adams likely was the intended user, the State 

was not required to prove that Adams had ready access to a specific means to use the 

cocaine in order for her to be found guilty of possessing that substance. A jury reasonably 
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could have found that Adams constructively possessed the cocaine. 

{¶ 32} We also do not find persuasive Adams’s argument that she was incapable 

of knowingly exercising dominion or control over the cocaine because she was 

“unresponsive.” The fact that Adams experienced an overdose did not negate the 

circumstantial evidence that she was aware of and exercised control over the cocaine 

before she lapsed into unconsciousness. Her temporary incapacitation did not insulate 

her from responsibility for possessing drugs that remained in her immediate vicinity and 

subject to the dominion and control of no other known person while Adams was 

unresponsive. 

{¶ 33} Finally, Adams contends, because the State failed to present fingerprint 

evidence or to perform DNA or drug testing on the syringe, the weight of the evidence did 

not demonstrate that Adams was aware of the cocaine’s presence. Certainly evidence 

that another person’s fingerprints were found or Adams’s fingerprints were not found on 

or near the mirror and other drug-related items would have been probative of Adams’s 

awareness of and connection to the cocaine. However, we cannot say that the absence 

of such physical evidence requires a reversal of the guilty verdict. As we noted, the 

positioning of the cocaine and the proximity of Adams and her belongings to that cocaine 

were sufficient to support an inference that Adams was aware of and exercised control 

over the cocaine. Under the totality of the circumstances, the jury did not create a manifest 

miscarriage of justice by concluding that Adams was guilty of possessing cocaine. 

{¶ 34} Adams’s second assignment of error is overruled. 

Assignment of Error #3 – Ineffective Assistance of Counsel

a. Standard of Review 
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{¶ 35} To establish ineffective assistance of counsel, a defendant must 

demonstrate both that trial counsel’s conduct fell below an objective standard of 

reasonableness and that the errors were serious enough to create a reasonable 

probability that, but for the errors, the outcome of the case would have been different. 

See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); 

State v. Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989). Hindsight is not 

permitted to distort the assessment of what was reasonable in light of counsel’s 

perspective at the time, and a debatable decision concerning trial strategy cannot form 

the basis of a finding of ineffective assistance of counsel. State v. Cook, 65 Ohio St.3d 

516, 524-525, 605 N.E.2d 70 (1992); State v. Fields, 2017-Ohio-400, 84 N.E.3d 193, 

¶ 38 (2d Dist.). Trial counsel is also entitled to a strong presumption that his or her conduct 

falls within the wide range of reasonable assistance. Strickland at 689. 

b. Adams’s Ineffective Assistance of Counsel Claim

{¶ 36} Adams claims that she was denied the effective assistance of counsel 

because neither of the attorneys appointed to represent her in her successive drug 

possession cases3 advised her that she could avoid conviction by obtaining a screening 

and seeking a referral for drug treatment, in accordance with R.C. 2925.11(B)(2)(b).

{¶ 37} That statutory provision, known as the “911 Good Samaritan Law,” provides 

 

3

Adams contends that both her attorney in this case and her attorney in Clark C.P. No. 

2016-CR-595 performed deficiently by failing to direct her to take advantage of the 

immunity statute. (See Brief for the Appellant, pp. 18, 19) (e.g., “counsel from 16CR0595 

was still involved in th[at] matter [when Adams was indicted in this case] and should have 

advised [Adams] to seek a screening in order to obtain a referral”). Because the quality 

of representation provided by Adams’s counsel from a different case is not before us on 

this appeal, we will not address any alleged deficiencies in that other attorney’s 

performance.
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in pertinent part: 

(b) Subject to division (B)(2)(f) of this section, a qualified individual shall not 

be arrested, charged, prosecuted, convicted, or penalized pursuant to this 

chapter for a minor drug possession offense if all of the following apply: 

(i) The evidence of the obtaining, possession, or use of the controlled 

substance or controlled substance analog that would be the basis of the 

offense was obtained as a result of the qualified individual seeking the 

medical assistance or experiencing an overdose and needing medical 

assistance. 

(ii) Subject to division (B)(2)(g) of this section, within thirty days after 

seeking or obtaining the medical assistance, the qualified individual seeks 

and obtains a screening and receives a referral for treatment from a 

community addiction services provider or a properly credentialed addiction 

treatment professional. 

(iii) Subject to division (B)(2)(g) of this section, the qualified individual who 

obtains a screening and receives a referral for treatment under division 

(B)(2)(b)(ii) of this section, upon the request of any prosecuting attorney, 

submits documentation to the prosecuting attorney that verifies that the 

qualified individual satisfied the requirements of that division. The 

documentation shall be limited to the date and time of the screening 

obtained and referral received. 

R.C. 2925.11(B)(2)(b), effective September 13, 2016. See State v. Melms, 2018-Ohio1947, 101 N.E.3d 747, ¶ 1 (2d Dist.). 
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{¶ 38} In addition, pursuant to R.C. 2925.11(B)(2)(a)(viii), 

“Qualified individual” means a person who is not on community control or 

post-release control and is a person acting in good faith who seeks or 

obtains medical assistance for another person who is experiencing a drug 

overdose, a person who experiences a drug overdose and who seeks 

medical assistance for that overdose, or a person who is the subject of 

another person seeking or obtaining medical assistance for that overdose 

as described in division (B)(2)(b) of this section. 

(Emphasis added.) 

{¶ 39} The record reflects that at the time of her September 9, 2017 overdose 

(which led to the drug possession charge in this case), Adams was serving community 

control as a result of her prior conviction for possession of cocaine in Clark C.P. No. 2016-

CR-595. (5/15/18 Disposition Tr. p. 3). Consequently, under R.C. 2925.11(B)(2)(a)(viii), 

Adams was not a “qualified individual” entitled to take advantage of R.C. 

2925.11(B)(2)(b)’s immunity from prosecution. Her trial attorney in this case cannot have 

performed deficiently by failing to advise her of that statutory immunity.

{¶ 40} Adams’s third assignment of error is overruled.

Conclusion

{¶ 41} The judgment of the trial court will be affirmed.

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

DONOVAN, J. and HALL, J., concur. 

Copies sent to: 
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Andrew P. Pickering 

Frank Matthew Batz 

Hon. Richard J. O’Neill