Youngstown Daily Legal News

Man accused of trafficking heroin, cocaine wins appeal

JESSICA SHAMBAUGH
Special to the Legal News
Published: September 19, 2014

In a recently released opinion, the 4th District Court of Appeals vacated drug convictions for a man found riding in a van that was transporting heroin and crack cocaine.

Antwon Criswell appealed his convictions for drug possession and drug trafficking from the Scioto County Court of Common Pleas.

He asserted that the state failed to provide sufficient evidence that he had actual or constructive possession of the drugs found in the van.

Criswell was arrested and charged after a traffic stop in Portsmouth, Ohio.

Portsmouth police elected to stop the van in which Criswell was riding after a confidential informant told them that the van contained two drug dealers as well as heroin.

The informant, Sarah Schuman, contacted police and told them that she would be driving with Michelle Cabell to Cincinnati to pick up several drug dealers and transport them back to Portsmouth.

She remained in contact with police throughout the trip and they were able to stop the van when it returned to Portsmouth.

A search of the vehicle yielded 152.7 grams of heroin and 71.1 grams of crack cocaine.

Criswell waived his right to a jury trial and the court found him guilty of drug possession and drug trafficking.

It sentenced him to a total of eight years in prison and he appealed to the Fourth District.

“Specifically, Criswell contends that there was ‘no testimony that anyone saw drugs in his actual possession, nor were any drugs found on him.’ Likewise, he claims that the state did not show that he had knowledge of the narcotics in the vehicle and thus there was insufficient evidence to establish that he had constructive possession,” Judge William Harsha wrote for the appellate panel, citing Criswell’s argument on appeal.

Upon review of the evidence, the three-judge appellate panel found that three detectives testified about the traffic stop and Schuman testified about what happened in the van prior to the stop.

The detectives explained that the van was too dark for them to see what was going on inside.

Therefore, they asked the occupants to step out of the vehicle and Criswell was the first to comply with that order.

After the occupants had vacated the van, a canine unit alerted on a rear door and the detectives found a plastic grocery bag between the front seats containing trash, heroin and crack cocaine.

They further added that they did not find any drugs on Criswell’s person.

Schuman testified that she agreed to ride with Cabell to pick up two or three “dope boys,” or “guys that come to Portsmouth to sell drugs.”

She said they picked up Antonio Spikes and Desmond Jenkins first and they instructed the women to drive to a second parking lot to pick up Criswell.

Schuman said Spikes and Jenkins entered the van holding heroin, but she did not see Criswell with any drugs.

She said Spikes and Jenkins sat in the second row of seats and Criswell sat alone in the third row, farthest from the front.

During the trip, she said they stopped and Jenkins got out of the van after handing his bag of heroin to Spikes.

Spikes then gave Cabell some heroin, which she shot up. Again, Schuman denied seeing Criswell with any drugs.

At one point, she said she saw a plastic baggie between Criswell’s knees but she was unable to see what was in the bag.

Schuman admitted during her testimony that she has used heroin on and off for more than 16 years and is a convicted felon.

However, she said she recently completed drug rehabilitation and had been clean for three months at the time of trial.

“Based on Schuman’s testimony, we believe the state presented evidence from which the trial court could reasonably conclude that Criswell knew of the heroin in Cabell’s van,” Judge Harsha stated.

The judges held that because Criswell was in the van when Cabell injected heroin, he most likely knew of its presence.

Still, they maintained that mere knowledge of an illegal substance is not sufficient to establish possession.

In fact, the judges found Criswell was neither a driver nor owner of the van, was not found with drugs on his person or witnessed handling drugs, and was positioned in the rear of the vehicle, away from the drugs.

“Because the state did not show that Criswell ever had the ability to exert dominion or control over the heroin, we conclude that it failed to show he had constructive possession,” Judge Harsha stated.

The judges similarly found that there was no evidence that Criswell knew there was cocaine inside the van because even Schuman did not testify that she saw any cocaine during the trip.

She mentioned seeing Criswell with a bag, but was unable to identify the contents of that bag.

“After viewing all of the evidence, in a light most favorable to the prosecution, we cannot say that a rational trier of fact could have concluded beyond a reasonable doubt that Criswell knowingly exerted dominion and control over either the heroin or crack cocaine found in the Kroger bag between the front driver and passenger seats,” Judge Harsha wrote.

The judges noted that Criswell “probably” possessed an illegal substance while in the van, but ruled that this was not enough to convict him.

“Unfortunately for the state, ‘probably’ does not meet the required burden of proof to satisfy the sufficiency requirement.”

Presiding Judge Peter Abele and Judge Marie Hoover joined Judge Harsha in sustaining Criswell’s assignment of error and remanding the case with instructions to discharge him.

The case is cited State v. Criswell, 2014-Ohio-3941.

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