The Akron Legal News

Circumstantial evidence is sufficient to uphold drug conviction, judges rule

JESSICA SHAMBAUGH
Special to the Legal News
Published: June 11, 2013

A Columbus man was properly convicted of attempting to possess two kilograms of cocaine after he took more than $64,000 into an apartment he believed contained the drugs, according to a recent ruling from the 10th District Court of Appeals.

The three-judge appellate panel held that circumstantial evidence and witness testimony were sufficient to convict Howard Rucker of attempted possession and trafficking in drugs.

The facts of the case detail that a Columbus police officer witnessed a drug deal in a department store parking lot in February 2011. The officer followed one of the vehicles involved and chased it down Interstate 71.

During the officer’s pursuit, several bags of a white substance were thrown out the vehicle’s passenger side window.

The vehicle was eventually stopped and the officer found Hugo Medrano and Cesar Hernandez inside the car. The bags were also recovered and found to be full of cocaine.

Following his arrest, Medrano agreed to set up a cocaine sale with a man he called “Gucci.”

Medrano and Gucci did not specifically mention drugs in any of the observed phone calls, but Gucci agreed to pick up two of something from Medrano’s apartment, according to case summary.

Six police officers hid in Medrano’s apartment to wait for the drug sale. They wrapped two radio batteries in tape to look like cocaine bricks and left them on the kitchen counter.

Gucci proved to be Rucker and when he arrived he had a soft-sided lunch bag filled with $64,000 and $3,000 on his person.

The officers apprehended him before he spoke.

Rucker received a bench trial in the Franklin County Court of Common Pleas and Medrano and Hernandez testified against him.

Medrano testified he had arranged for Rucker to purchase two kilograms of cocaine earlier on the day in question.

Hernandez said the cost of one kilogram of cocaine was $32,000 and the state provided evidence that Rucker’s lunch bag contained double that amount.

Medrano and Hernandez each testified that Rucker had never turned down an opportunity to buy drugs from them.

The trial court found Rucker guilty of attempted aggravated possession of drugs and trafficking in drugs with a major drug offender specification based on the amount.

Rucker was sentenced to 12 years in prison and appealed to the 10th District.

“Appellant contends the state did not prove that he took any affirmative steps to participate in Medrano and Hernandez’s commission of trafficking in cocaine. Appellant points out that Medrano and Hernandez were arrested for having possession of two kilograms of cocaine, and there was never any specific mention of the sale of drugs in any of the phone calls to him,” 10th District Judge Susan Brown wrote for the court.

The appellate judges found Rucker’s assignment of error challenged the credibility of the state’s witnesses.

They stated the trial court was free to believe any portion of the testimony or none of it, but that the decision “rests solely with the finder of fact.”

“The trial court found Medrano’s testimony both persuasive and credible. We cannot find that the trial court lost its way in determining that Medrano’s testimony was credible despite the fact he was offered a deal from the state for his testimony,” Brown stated.

Rucker further contended it was impossible for him to buy drugs under the circumstances because there were no drugs in the apartment.

Ohio Revised Code 2923.02(B) states that a defendant may not use impossibility as a defense when he or she attempts to possess something that they believe to be present but is not because of attendant circumstances.

The 10th District panel maintained that the history of drug exchanges between Rucker and the state’s witnesses and Medrano’s testimony that the observed phone calls were regarding the sale of two kilograms of cocaine was enough to support the trial court’s conclusion that Rucker attempted to possess drugs.

“Based on R.C. 2923.02(B), appellant did not need to acquire real drugs to be found guilty of the offense. It is enough that appellant had cause to believe there were actual drugs in the apartment,” Brown wrote. “Therefore, the fact that there were no drugs in the apartment, and police had wrapped radio batteries in tape to look like cocaine, is immaterial.”

Fellow 10th District judges Peggy Bryant and Gary Tyack joined Brown to affirm the lower court’s ruling.

The case is cited State v. Rucker, case No. 2013-Ohio-2215.

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