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Drug charges stand after cops find drugs, guns in man's bedroom

JESSICA SHAMBAUGH
Special to Legal News

Published: April 17, 2014

There was sufficient evidence to convict a man of possessing a firearm and marijuana after officers found the objects in plain view in his home, according to an opinion released this week from the 12th District Court of Appeals.

Damon Trecean Brown appealed his conviction and sentence from the Butler County Court of Common Pleas, asserting that the were against the manifest weight and sufficiency of the evidence.

Despite an officer’s discovery of marijuana, drug paraphernalia and a firearm in his home, Brown contended that the state failed to show he actually possessed any of those items.

Officers first found the items after responding to reports that a woman was throwing rocks through an apartment’s windows in the early morning hours of July 11, 2012.

When the officers arrived on the scene, they found a woman “outside, crying, intoxicated and bleeding profusely on the hands and arms,” according to case summary.

The officers noted that she had been throwing rocks through the front window of a Middletown apartment and had destroyed the window, the blinds and a television.

They were able to restrain the woman and then knocked on the apartment door to investigate the situation.

Another woman answered the door “visibly upset and scared,” the report stated.

She told the officers she had been hiding in a closet and believed “the resident of the house had fled the house.”

One of the officers then went upstairs to complete a protective sweep of the apartment.

When he entered an unfurnished bedroom he found Brown “hiding behind the left side of the door frame.”

Brown was quickly patted down and taken downstairs.

A second officer continued the protective sweep and found a second bedroom, which was furnished.

He stated that there was a holstered gun lying in plain sight on the bed in that room.

While the officer was upstairs, Brown remained downstairs to speak with Officer Andrew Kaylor and a second officer.

At one point Brown reached in his pocket and pulled something out.

When Kaylor attempted to grab the item from Brown, Brown pushed his arm away and fled to a utility room.

The officers were able to force the door open and apprehend Brown, through he resisted arrest by refusing to place his hands behind his back or spit out an item he was chewing on.

The police searched Brown’s person and found more than $2,000 and a small amount of marijuana.

They then obtained a warrant and searched the house, which yielded baggies of marijuana, marijuana cigarettes, digital scales, ammunition, a handgun, and other miscellaneous items.

At a jury trial in January 2013, Brown faced charges including having weapons while under disability, resisting arrest, obstructing official business, illegal use or possession of drug paraphernalia and possession of marijuana.

The jury found him guilty of the first four counts and the trial court sentenced Brown to 36 months in prison.

On direct appeal to the 12th District, Brown argued that his convictions were against the manifest weight and sufficiency of the evidence.

“Specifically, appellant argues the state failed to prove beyond a reasonable doubt the respective ‘possession’ element of each offense,” Judge Robert Hendrickson wrote for the court.

Upon review, the appellate panel found that the apartment in question was leased in a woman’s name.

However, when the officers searched the residence, they did not find any items “belonging to a female.”

Instead, they found only Brown’s property including receipts in his name lying on the floor of the furnished bedroom next to where they found drug paraphernalia and a firearm.

The judges held that because there was evidence that Brown was living in the area where the items were found, the state showed that Brown had control or the ability to exert control over those items.

“Accordingly, given the evidence presented, it is clear that the jury did not lost its way and create such a manifest miscarriage of justice that appellant’s convictions for the illegal use or possession of drug paraphernalia and having weapons while under disability must be reversed and a new trial ordered,” Judge Hendrickson stated.

Brown also argued that the trial court improperly ordered him to pay court costs because it did not advise him that he would have to perform community service if he failed to pay those costs.

The appellate panel agreed that the trial court failed to notify him of the possibility of community service.

However, it maintained that the law requiring such a notice was not in place at the time of Brown’s sentencing and it overruled his argument.

Presiding Judge Robert Ringland and Judge Michael Powell joined Brown to affirm the lower court’s ruling.

The case is cited State v. Brown, 2014-Ohio-1317.

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