[Cite as State v. Owens, 2017-Ohio-2590.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

MARION COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 9-16-40 

 v. 

TOMMY OWENS, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Marion County Common Pleas Court 

Trial Court No. 16-CR-0085 

Judgment Affirmed 

Date of Decision: May 1, 2017 

 

APPEARANCES: 

 

Robert C. Nemo for Appellant 

 Kevin P. Collins for Appellee 
Case No. 9-16-40 

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ZIMMERMAN, J. 

{¶1} Defendant-Appellant Tommy Owens appeals his July 15, 2016 

convictions of two counts of possession of cocaine and two counts of trafficking in 

cocaine from the Marion County Court of Common Pleas. Defendant-Appellant 

alleges the trial court erred in denying his motion to suppress, erred in admitting 

evidence at trial, erred in denying a motion for a mistrial, and erred in denying his 

Rule 29 motion. For the reasons that follow, we affirm the judgment of the trial 

court. 

Facts and Statement of the Case

{¶2} On January 7, 2016 the MARMET Drug Task Force (“MARMET”) 

arranged and completed a “controlled buy” of drugs between Stacy Keese 

(“Keese”), a confidential informant, and Defendant-Appellant Tommy Owens 

(“Owens”) at 224 North Grand Avenue, in Marion, Ohio. MARMET supplied the 

money for the transaction. In addition to supplying the money for the drug buy, 

MARMET agents equipped Keese with an audiovisual wire to record his transaction 

with Owens. 

{¶3} On February 9, 2016, MARMET conducted another controlled buy of 

drugs between Keese and Owens at the same location. Equipped with money and 

an audiovisual wire, Keese again purchased cocaine from Owens under MARMET 

supervision. As a result of this transaction, MARMET obtained a search warrant 
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on February 9, 2016 to search Owens’ residence, located at 618 Henry Street in 

Marion, Ohio, as well as the 224 North Grand location. 

{¶4} The search warrant of the 618 Henry St. location produced a small 

amount of cocaine. No one was present at the Henry Street address when the search 

was conducted, however, Owens later admitted that the cocaine obtained as a result 

of the Henry Street address search was his. 

{¶5} The search of the 224 North Grand location resulted in seizure of a 

larger amount of cocaine; approximately 80 grams of cocaine was located inside a 

peanut can found in the kitchen portion of the address. 

{¶6} Owens and seven other individuals were present in the Grand Avenue 

address when the search warrant was executed. MARMET agents observed Owens 

as the first individual to run towards the back of the residence, where the kitchen 

was located, when police announced their presence. Ultimately, Owens admitted to 

a Marion City Police Officer that the peanut can located in the kitchen containing 

cocaine was his. However, Owens later retracted this admission. 

Procedural History 

{¶7} On February 25, 2016, Owens was indicted by the Marion County, 

Ohio grand jury on two counts: Count One, Possession of Heroin, a felony of the 

fifth degree, in violation of R.C. 2925.11(A)/(C)(4) [sic], and Count Two, 

Possession of Cocaine, a felony of the first degree, in violation of R.C. 
Case No. 9-16-40 

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2925.11(A)/(C)(4). Both counts contained a forfeiture specification pursuant to 

R.C. 2941.1417. On April 21, 2016, the grand jury amended Count One of the 

indictment to Possession of Cocaine, a felony of the first degree, under the same 

statute for which Owens was previously indicted. 

{¶8} Owens subsequently filed a Motion to Suppress the evidence obtained 

from the two searches relating to drugs that were found and determined to belong 

to Owens. However, on June 2, 2016, the Marion County, Ohio grand jury, in a 

superseding indictment, charged Owens with four new counts related to the two 

controlled buys of drugs and subsequent search warrants. The four counts were: 

Count One, Possession of Cocaine, a felony of the fifth degree, in violation of R.C. 

2925.11(A)/(C)(4); Count Two, Possession of Cocaine, a felony of the first degree, 

in violation of R.C. 2925.11(A)/(C)(4); Count Three, Trafficking in Cocaine, a 

felony of the fifth degree, in violation of R.C. 2925.03(A)/(C)(4); and Count Four, 

Trafficking in Cocaine, a felony of the fifth degree, in violation of R.C. 

2925.03(A)/(C)(4). Counts one and two of the indictment again contained forfeiture 

specifications. 

{¶9} On June 10, 2016, the trial court heard Owens’ Motion to Suppress, 

and by its entry of June 14, 2016, the trial court denied the same. 

{¶10} The matter proceeded to a jury trial on July 13, 2016. After three days 

of testimony, the jury found Owens guilty on all four counts. At trial, the State 
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dismissed the specifications as to counts one and two. Ultimately, Owens was 

sentenced to six months on Count One; a mandatory term of five years on Count 

Two; nine months on Count Three; and nine months on Count Four. The trial court 

ordered that the sentences be served concurrently. Thus, Owens received a total 

sentence of five years in prison. 

{¶11} Owens timely appealed, and presents the following four assignments 

of error for our review:

ASSIGNMENT OF ERROR NO. 1 

THE TRIAL COURT ERRED IN DENYING APPELLANT’S 

MOTION TO SUPPRESS AND DISMISS. 

ASSIGNMENT OF ERROR NO. 2 

THE TRIAL COURT ERRED IN ADMITTING INTO 

EVIDENCE VIDEO AND AUDIO RECORDINGS BETWEEN 

APPELLANT AND THE CONFIDENTIAL INFORMANT, 

WHO DID NOT TESTIFY AT TRIAL. 

ASSIGNMENT OF ERROR NO. 3 

THE TRIAL COURT ERRED IN FAILING TO EITHER 

DISMISS THE CASE OR GRANT A MISTRIAL DUE TO A 

CONSISTENT PATTERN OF FAILURE TO TIMELY 

PROVIDE DISCOVERY. 

ASSIGNMENT OF ERROR NO. 4 

AS A RESULT OF THE FAILURE OF APPELLEE TO SHOW 

THAT THE AMOUNT OF COCAINE ALLEGEDLY 

ASSOCIATED WITH APPELLANT EXCEEDED 27 GRAMS, 

THE TRIAL COURT ERRED IN FAILING TO GRANT 

APPELLANT’S RULE 29 MOTION. 
Case No. 9-16-40 

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First Assignment of Error 

{¶12} On appeal, Owens challenges the trial court’s denial of his motion to 

suppress. Specifically, Owens argues that MARMET agents lacked probable cause 

to obtain the search warrants for the 618 Henry Street and 224 North Grand Avenue 

locations and that the affidavits submitted lacked a substantial basis to support a 

finding of probable cause. 

Standard of Review 

{¶13} “‘Appellate review of a decision on a motion to suppress presents a 

mixed question of law and fact.’” State v. Navarro, 3rd Dist. Seneca No. 13-15-28, 

2016-Ohio-749, ¶ 17, quoting State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio5372, 797 N.E.2d 71, ¶ 8. The trial court assumes the role of trier of fact at the 

suppression hearing, and as the trier of fact, is in the best position to evaluate the 

evidence and the credibility of witnesses. State v. Workman, 2015-Ohio-5049, 52 

N.E.3d 286, ¶ 10 (3rd Dist.). Deference is given to the trial court’s findings of facts 

so long as they are supported by competent, credible evidence. Id. The trial court’s 

conclusions of law, however, are reviewed using a de novo standard; as such, we 

must decide whether the facts satisfy the applicable legal standard. Id. 

Analysis 

{¶14} “The Fourth Amendment of the United States Constitution and Article 

I, Section 14 of the Ohio Constitution generally prohibit warrantless searches and 
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seizures, and any evidence that is obtained during an unlawful search or seizure will 

be excluded from being used against the defendant.” Id., at ¶ 11, citing State v. 

Steinbrunner, 3rd Dist. Auglaize No. 2-11-27, 2012-Ohio-2358, ¶ 12 citing Mapp 

v. Ohio, 367 U.S. 643, 649, 81 S.Ct. 1684 (1961). The Fourth Amendment also 

declares that warrants shall not be issued, unless there is probable cause, which is 

supported by oath or affirmation; and the warrant states with particularity the place 

to be searched or persons or things to be seized. State v. Bangera, 2016-Ohio-4596, 

70 N.E.3d 75, ¶ 31 (11th Dist.) quoting Marron v. United States, 275 U.S. 192, 195, 

48 S.Ct. 74 (1927). 

{¶15} In order to obtain a search warrant, the requesting party must present 

information containing sufficient facts to permit a judge to reach a conclusion that 

evidence of a crime exists in the place to be searched; the judge or magistrate is not 

to serve merely as a rubber stamp for law enforcement. See State v. Hoffman, 2013-

Ohio-1082, 989 N.E.2d 156, ¶ 12 (6th Dist.) citing United States. v. Ventresca, 380 

U.S. 102, 109, 85 S.Ct. 741 (1965). As stated by the United States Supreme Court 

in Illinois v. Gates: 

The task of the issuing magistrate is simply to make a practical, 

common-sense decision whether, given all of the circumstances set 

forth in the affidavit before him, including the veracity and “basis of 

knowledge” of persons supplying hearsay information, there is a fair 

probability that contraband or evidence of a crime will be found in a 

particular place. And the duty of a reviewing court is simply to ensure 

that the magistrate had a “substantial basis for...conclud[ing]” that 

probable cause existed. 
Case No. 9-16-40 

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Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317 (1983) quoting Jones v. U.S., 

362 U.S. 257, 271, 80 S.Ct. 725 (1960), overruled in part on other grounds. 

{¶16} If the reviewing court determines that the warrant should not have 

been issued, because no substantial basis for concluding that probable cause existed, 

it must then go on to determine whether a good-faith exception applies, which 

presents a question of law subject to a de novo review. State v. Castagnola, 145 

Ohio St.3d 1, 2015-Ohio-1565, 46 N.E.3d 638, ¶ 32. 

{¶17} In reviewing the materials submitted to us, we note some missteps are 

present in the affidavits submitted to the judge in support of the search warrant 

requests. In terms of mere mechanics, two search warrants were issued for each 

residence and each search warrant was supported by a different affidavit. (Doc. 29, 

Ex. A-D). In both instances, the second affidavit for each location failed to match 

the first affidavit. Additionally, the facts supporting the officer’s belief that 

probable cause existed were numbered incorrectly. In its entry denying the motion 

to suppress, the trial court noted that “[a]ll of the affidavits are poorly drafted and 

contain a number of ambiguities.” (Doc. 67 at 5). 

{¶18} Regarding the evidence presented to the judge to form the requisite 

probable cause necessary for the issuance of a search warrant, we note the affidavits 

do not contain operative facts, as opposed to the officer’s conclusion, to support 

probable cause. The Ohio Supreme Court specifically stated the necessity of 
Case No. 9-16-40 

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including in a supporting affidavit underlying facts to support probable cause, 

warning that “a magistrate cannot be viewed as neutral and detached if the 

magistrate issues a search warrant that is unknowingly based on the police officer’s 

conclusions.” Castagnola at ¶ 41. 

{¶19} Illustrative of the problem with the conclusions present in the 

affidavits is the following excerpt: 

“3. * * * The video was reviewed from the buy and it is Tommy 

Owens in the video.” 

(Doc. 29, Ex. B). As the trial court indicated, “this statement contains no factual 

information on who reviewed the video, when the video was reviewed, whether the 

reviewing person had any familiarity with Owens, and how it was determined that 

Tommy Owens was, in fact, the person in the video.” (Doc. 67). However, after 

extensively analyzing the multiple errors and deficiencies present in the affidavits, 

the trial court summarily stated that “while the substantive factual information in 

the affidavits is minimal, the Court does find that the affidavits contain sufficient 

factual information which could give a neutral magistrate a substantial basis to 

conclude that probable cause existed.” (Id.). 

{¶20} In our review of the affidavits it is difficult for us to determine that a 

substantial basis to support a finding of probable cause exists given the nature of the 

facts and opinions of the MARMET agent in the affidavits. It is even more difficult 

to give deference to the trial court’s ruling on the motion to suppress, when the 
Case No. 9-16-40 

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majority of its judgment entry criticizes the multiple errors in the affidavits, 

acknowledging that such information required the issuing judge to make a number 

of inferences which were not clearly spelled out. (Id.). As such, the facts herein do 

not support a substantial basis of probable cause for the issuance of the warrants. 

Thus, we must determine whether or not the good faith exception applies under the 

facts of this case. 

Good Faith Exception 

{¶21} In State v. George, the Ohio Supreme Court stated that Fourth 

Amendment exclusionary rule would not be applied to bar evidence obtained by law 

enforcement officers acting in objectively reasonable reliance on a search warrant 

issued by a detached and neutral magistrate, even though the warrant was ultimately 

found to be unsupported by probable cause. State v. George, 45 Ohio St.3d 325, 

330, 544 N.E.2d 640 (1989). See also United States v. Leon, 468 U.S. 897, 913, 

104 S.Ct. 3405 (1984). Where an officer acts with objective good faith, and 

obtained a search warrant from a judge or magistrate and acted within its scope, 

there is no illegality and nothing to deter. Id. at 331, quoting Leon, supra, at 920. 

{¶22} Our review of the affidavits, as well as the judgment entry issued by 

the trial court demonstrates no evidence of any “bad faith” actions by law 

enforcement. While the affidavits contained, in large part, conclusory statements of 

law enforcement, there is nothing in the record indicating that such statements were 
Case No. 9-16-40 

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false or made to mislead the magistrate. Consistent with George, there is nothing 

in the record to indicate that the magistrate or judge was misled by information in 

an affidavit that the affiant knew was false; nothing to indicate that the issuing 

magistrate wholly abandoned his judicial role; nothing to indicate that an officer 

relied on a warrant based on an affidavit lacking in indicia of probable cause as to 

render official belief in its existence entirely unreasonable; and lastly, nothing to 

indicate that in this particular case a warrant was so facially deficient that the 

executing officers could not reasonably presume it to be valid. Id. at 331. Given 

that the officers acted in good faith and in an objectively reasonable manner, we 

determine that even though there was not probable cause to support the issuance of 

the search warrants, the good faith exception allows the evidence recovered at the 

two locations to be used by the prosecution in their prosecution of Owens. The first 

assignment of error is accordingly overruled. 

Second Assignment of Error 

{¶23} In his second assignment of error, Owens contends that the trial court 

erred in admitting into evidence video and audio recordings between him and the 

confidential informant, because the informant did not testify at trial. During its’ 

case in chief, the State played the video of the January 7th, 2016 controlled buy 

between Keese and Owens, and the video from February 9, 2016 controlled buy 

between the two. Keese was not subpoenaed by the State and did not testify as to 
Case No. 9-16-40 

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the statements or actions depicted in the video. Thus, Owens contends that the 

introduction of Keese’s statements in the video violated his Sixth Amendment right 

to confrontation, and requests that this court overturn his convictions in Counts III 

and IV. 

{¶24} Owen’s assertion of a Sixth Amendment Confrontation Clause 

violation is without merit under the circumstances of this case. A review of the trial 

transcript reveals that Owens admitted that he was in possession of the cocaine as 

alleged in Count I of his indictment; that he trafficked in cocaine on January 7th, 

2016 as alleged in Count III of his indictment; and that he trafficked in cocaine on 

February 9, 2016 as alleged in Count IV of his indictment. (07/15/2016 Tr. at pp. 

777-80). Further, Owens’ attorney confirmed these admissions in his closing 

statement, requesting the jury to “find him guilty of [those counts].” (Id. at pp 848-

49). Thus, competent and credible evidence exists as to Counts I, III, and IV, upon 

which the jury relied, to support its verdict. Any error that may have been present 

in admitting the videos into evidence was harmless beyond a reasonable doubt, 

given Owens’ under oath admissions of drug possession and trafficking. The second 

assignment of error is accordingly overruled. 
Case No. 9-16-40 

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Third Assignment of Error 

{¶25} In Owen’s third assignment of error, Owens contends that the trial 

court erred in failing to either dismiss the case or grant a mistrial due to a consistent 

pattern of discovery violations by the State. 

{¶26} The United States Supreme Court has held that “a criminal defendant 

may claim denial of due process where the state fails to disclose the existence of 

potentially exculpatory evidence.” State v. Iacona, 93 Ohio St.3d 83, 88-89, 2001-

Ohio-1292, 752 N.E.2d 937, citing Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 

1194 (1963). Additionally, “’[t]he suppression by the prosecution of evidence 

favorable to an accused upon request violates due process where the evidence is 

material either to guilt or punishment, irrespective of the good faith or bad faith of 

the prosecution.’” Id. at 89, quoting Brady, supra. 

But, in determining whether the prosecution improperly suppressed 

evidence favorable to an accused, such evidence shall be deemed 

material only if there is a reasonable probability that, had the evidence 

been disclosed to the defense, the result of the proceeding would have 

been different. A ‘reasonable probability’ is a probability sufficient 

to undermine confidence in the outcome. This standard of materiality 

applies regardless of whether the evidence is specifically, generally or 

not at all requested by the defense. 

Id. quoting State v. Johnson, 39 Ohio St.3d 48, 529 N.E.2d 898 (1988), paragraph 

five of the syllabus. 

{¶27} In addition to the Brady standard set forth by the United States 

Supreme Court, Crim.R. 16 governs the discovery process. Crim.R. 16(B)(5) 
Case No. 9-16-40 

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requires that a prosecuting attorney disclose “[a]ny evidence favorable to the 

defendant and material to guilt or punishment.” Id. In regulating the discovery 

process, Crim.R. 16(L)(1) provides that “[t]he trial court may make orders 

regulating discovery not inconsistent with this rule. Id. “If at any time during the 

course of the proceedings it is brought to the attention of the court that a party has 

failed to comply * * * the court may order such party to permit the discovery or 

inspection, grant a continuance, or prohibit the party from introducing in evidence 

material not disclosed, or it may make such other order as it deems just under the 

circumstances.” (Emphasis added.) Id. Applying Crim.R. 16 and the Brady 

requirements to the facts presented to us for review, we will discuss each alleged 

discovery violation in turn. 

Davon Meggison Criminal History 

{¶28} Owens contends that Davon Meggison’s (“Meggison”) criminal 

history was not properly disclosed. Specifically, Owens asserts that the prosecution 

failed to disclose that Meggison was arrested out of the same incident involving 

Owens; that Meggison had been arrested on a probation violation; and that 

Meggison was currently under indictment as well. 

{¶29} Owens asserts that the failure to disclose the criminal history of 

Meggison materially affected his attorney’s ability to adequately prepare and 

present a proper defense. However, this court has consistently determined that 
Case No. 9-16-40 

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materiality does not refer to the defendant’s ability to prepare for trial. State v. 

Wangler, 3rd Dist. Allen No. 1-11-18, 2012-Ohio-4878, ¶ 115, quoting United 

States v. Agurs, 427 U.S. 97, 113, 96 S.Ct. 2392 (1976), holding modified by United 

States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375 (1985). Moreover, Owens has put 

forth no assertion that the undisclosed evidence in regards to Meggison’s criminal 

history was favorable to Owens’ case, let alone material to Owens’ conviction. 

Furthermore, Meggison’s criminal history was discussed, in part, during his 

testimony. There is nothing in the record to indicate that Meggison’s full criminal 

history, if disclosed, would have impacted the verdict in light of Owen’s admissions 

of guilt to three of the four charges. 

Shaquille Smith Plea Deal 

{¶30} During the course of the trial, Owens’ attorney discovered that 

Shaquille Smith (“Smith”), a witness for the State, had reached a plea deal with the 

State in exchange for his testimony against Owens. This information was revealed 

during the cross examination of Smith by Owens’ attorney. Upon notice of this plea 

deal, the trial court recessed the jury and independently investigated the allegation. 

It was determined that Smith was charged with Permitting Drug Abuse, a felony of 

the fifth degree, in violation of R.C. 2925.13, arising from the February 9, 2016 

incident involving Owens. The State advised the trial court it had a plea agreement 

with Smith, and that such agreement had not been disclosed to defense counsel. The 
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court inquired if a statement from Smith had been obtained in exchange for Smith’s 

plea deal, to which the State answered affirmatively and that such statement was not 

disclosed to the defense. Outside the presence of the jury, the State indicated that 

there was a recorded interview of Smith and that the State had failed to provide said 

interview to Owens’ counsel. 

{¶31} As a result of these non-disclosures, the trial court recessed the jury 

and suspended Smith’s cross-examination testimony in order to give Owens’ 

counsel an opportunity to review the plea deal and statement. The trial court then 

permitted Owen’s counsel to cross-examine Smith the next day on such plea deal 

and statement. 

{¶32} With respect to the plea agreement reached with Smith and the 

statement that was given to the State prior to trial, there is again nothing in the record 

to indicate that these pieces of evidence were material to Owens’ conviction. While 

the lack of disclosure may have effected defense counsel’s ability to prepare for 

trial, preparation does not equal materiality. Wangler, supra. 

{¶33} Further, with respect to the failure of the State to disclose its recorded 

statement of Smith under Crim.R. 16(L)(1), the trial court permitted Owens’ 

attorney ample review of the tape prior to concluding cross examination which 

resulted in greater questioning of Smith. The trial court properly interceded and 

regulated the discovery process consistent with the rules of discovery, which 
Case No. 9-16-40 

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resulted in the impeachment of Smith. We find the trial court’s curative measures 

were sufficient to resolve any potential prejudice to Owens. 

Confidential Informant Address 

{¶34} Lastly, Owens’ contends that the State failed to comply with the rules 

of discovery by not disclosing the address of Keese, its confidential informant. 

During trial the trial court questioned counsel for the State concerning Keese’s 

current address. The State advised the court of Keese’s out-of-state location, and its 

decision not to call him as a witness to testify. The State also advised the trial judge 

that they had not given Owen’s counsel Keese’s current address, which had changed 

during the course of the proceedings. The trial court then inquired of the steps taken 

by the defense to subpoena Keese as a witness. The trial court noted that the defense 

could have filed a praecipe for a subpoena for Keese at his prior address, but failed 

to do so. However, consistent with the provision in Crim.R. 16(L)(1), the trial court 

agreed to continue the trial to permit counsel the opportunity to secure Keese’s 

appearance in court to testify, which the defense rejected. Given that the trial court 

took steps to remedy the non-disclosure of Keese’s new address, and Owens’ 

counsel’s rejection of the trial court’s continuance offer, we reject Owens’ 

contention that a mistrial or dismissal was the only appropriate remedy in this 

instance. 
Case No. 9-16-40 

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{¶35} While not condoning the multiple discovery errors committed by the 

State in this case, we find that there was no material discovery violation that would 

have changed the jury’s verdict in light of Owens’ admissions and the evidence 

presented at trial. Accordingly, we overrule the third assignment of error. 

Fourth Assignment of Error 

{¶36} In Owens’ fourth assignment of error, Owens contends that the State 

failed to prove that 27 grams or more of cocaine was recovered at the 224 North 

Grand Avenue location as set forth in Count II of the superseding indictment. 

Relying on the rationale in State v. Gonzales, 6th Dist. Wood No. WD-13-086, 

2015-Ohio-461, and the affirmance of the 6th District’s legal interpretation by the 

Supreme Court in State v. Gonzales, --- Ohio St.3d ---, 2016-Ohio-8319, --- N.E.3d 

--- (“Gonzales I”), Owens asserts that the State was required to prove that the weight 

of the actual cocaine possessed by the defendant met the statutory threshold. 

{¶37} It is not disputed that the Ohio Bureau of Criminal Investigation 

(“BCI”) failed to test the weight of cocaine in the mixture received from the State 

relative to Count II. BCI only performed a visual inspection of that sample to assure 

that the substance was a homogenous mixture and then utilized a sample of that 

homogenous mixture to show that the mixture contained cocaine. (07/14/2016 Tr. 

at pp 556-58). Owens asserts that because the State failed to present evidence about 
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purity, or the amount of cocaine contained in the mixture, his felony of the first 

degree conviction for possession of cocaine (Count II) cannot stand. We disagree. 

{¶38} The Supreme Court recently granted reconsideration of the Gonzales

decision, and in its ruling issued on March 6, 2017, the Supreme Court held that the 

entire compound, mixture, preparation, or substance, is to be considered in 

determining the appropriate penalty. State v. Gonzales, --- Ohio St.3d ---, 2017-

Ohio-777, --- N.E.3d ---. Because the State did prove that the entire mixture 

containing cocaine (in Count II) weighed over 27 grams but less than 100 grams 

Owens’ conviction for possession of cocaine under the standard announced in 

Gonzales II is proper. 

{¶39} Owens’ additionally contends, in the alternative, that even if the trial 

court did not err in applying Gonzales, a Rule 29 acquittal was appropriate. 

Specifically, Owens’ contends that the evidence was insufficient to demonstrate that 

Owens had constructive possession over the cocaine obtained at the 224 North 

Grand location. This argument is misplaced. 

{¶40} Crim.R. 29(A) states, in part: “[t]he court * * * shall order the entry 

of a judgment of acquittal of one or more offenses charged in the indictment, 

information, or complaint, if the evidence is insufficient to sustain a conviction of 

such offense or offenses. State v. Hampton, 134 Ohio St.3d 447, 2012-Ohio-5688, 

983 N.E.2d 324, ¶ 13. An appellate court, when analyzing a denial of a Crim.R. 29 
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motion for acquittal, utilizes a sufficiency of the evidence standard of review, 

making the relevant inquiry “’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. Murphy, 5th Dist. 

Stark No. 2015CA00024, 2015-Ohio-5180, ¶ 17, quoting State v. Jenks, 61 Ohio 

St.3d 259, 259-60, 574 N.E.2d 492 (1991), overruled in part on other grounds. 

{¶41} A review of the trial transcript demonstrates that a rational trier of fact 

could have found the essential elements of possession of cocaine, especially in light 

of the testimony of witnesses for the State. Multiple witnesses for the State testified 

that Owens admitted to possessing the cocaine that was recovered from the kitchen.1

 

Coupled with Owens’ admissions to the police, along with MARMET agents’ 

testimony surrounding Owens’ drug selling behavior on the date in question, when 

viewed in a light most favorable to the prosecution, a rational trier of fact could 

believe that Owens possessed the drugs obtained from the kitchen at the 224 North 

Grand Avenue location. Owen’s fourth assignment of error is accordingly 

overruled. 

 

 

1

 Officer Richard Wheeler and Detective Andy Isom testified that they heard Owens declare ownership of 

the drugs seized at the 224 North Grand Avenue location. According to these witnesses, Owens didn’t want 

someone else to get in trouble for his drugs. Owens later recanted his confession and during his trial testified 

that he never stated that the drugs were his. 
Case No. 9-16-40 

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{¶42} Having found no error prejudicial to the Appellant herein in the 

particulars assigned and argued, we affirm the judgment of the trial court. 

Judgment Affirmed 

PRESTON, P.J. concurs. 

SHAW, J., concurs in Judgment Only. 

/jlr