Youngstown Daily Legal News

Drug charges reversed for driver with suspended license

ANNIE YAMSON
Special to the Legal News
Published: August 20, 2014

The judgment of the Lorain County Court of Common Pleas was partially affirmed and reversed recently when the 9th District Court of Appeals ruled that a portion of Jerry Cabrera’s convictions for drug possession were supported by the manifest weight of the evidence.

Case summary states that Cabrera was pulled over by Officer Kyle Gelenius of the Lorain Police Department after he performed a random check on the license plate of the Toyota Celica Cabrera was driving.

Gelenius discovered that the plates had expired in 2008 and were registered to a Buick.

Cabrera admitted to the officer that his license was suspended and Gelenius requested that he exit the car.

Cabrera passed a field sobriety test but was handcuffed and transported to jail.

After taking Cabrera to the jail, Gelenius performed a routine search of the back seat of his cruiser and discovered five white pills underneath the seat cushion where Cabrera had been sitting.

Laboratory tests revealed that the pills contained hydrocodone, a controlled substance.

Cabrera was subsequently indicted and found guilty on charges of tampering with evidence, possession of a controlled substance and driving under suspension.

In his sole assignment of error upon direct appeal to the 9th District, Cabrera challenged the manifest weight of the evidence supporting his convictions for possession and tampering.

“Specifically, Cabrera argues that the evidence does not support a finding that he placed the pills in the back of the police cruiser,” wrote Judge Beth Whitmore on behalf of the district’s three-judge appellate panel.

Cabrera was indicted on possession of drugs in violation of R.C. 2925.11(A), which provides that “no person shall knowingly obtain, possess or use a controlled substance or a controlled substance analog.”

“For an indictment on possession of drugs to be constitutionally sufficient, it must include either the specific name of the drug alleged to have been possessed or the schedule in which the drug appears,” wrote Judge Whitmore. “The name of the drug or the schedule is an essential element of the offense.”

To support a criminal conviction, Judge Whitmore noted that the state is required to prove all elements of the offense beyond a reasonable doubt.

Upon review of Cabrera’s indictment, however, the appellate panel noticed that it specifically states that the drug involved was a schedule III, IV or V drug.

The pills found in the back of Gelenius’ cruiser were hydrocodone, a schedule II drug, therefore the state presented no evidence that Cabrera possessed any drug alleged in the indictment.

“His conviction for possession is not supported by sufficient evidence and must be reversed,” wrote Judge Whitmore.

But the court of appeals found otherwise when it came to Cabrera’s conviction for tampering with evidence.

Under that statute, “no person, knowing that an official proceeding or investigation is in progress, or is about to be or likely to be instituted, shall alter, destroy, conceal or remove any record, document or thing with purpose to impair its value or availability as evidence.”

According to Cabrera, the weight of the evidence did not support the fact that he stuffed pills into the back seat of the cruiser.

Gelenius contended that, immediately after he returned to his cruiser at the jail, he followed proper protocol by searching the back seat of his cruiser.

He also testified that he was “meticulous” about keeping his back seat clean and had checked it at the beginning of his shift. Cabrera was the first person to be placed in the back of the car that day.

“While Cabrera was initially arrested for driving under suspension, he knew that he was going to jail when he was handcuffed and placed in the back seat of Officer Gelenius’ cruiser,” wrote Judge Whitmore. “Any illegal drugs possessed by Cabrera at the time he was admitted into the jail would likely have been discovered and investigated.”

At the point that Cabrera was cuffed and placed in the cruiser, the appellate panel ruled that the pills on his person were evidence of a “likely official investigation” and his actions of hiding them was intended to impair the availability of the evidence.

The court of appeal concluded that the trier of fact did not lose its way in convicting Cabrera of tampering with evidence but it vacated the conviction for possession.

Presiding Judge Jennifer Hensal and Judge Donna Carr concurred.

The case is cited State v. Cabrera, 2014-Ohio-3372.

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