State v. Nicholson

[Cite as State v. Nicholson, 2025-Ohio-2639.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               HANCOCK COUNTY




STATE OF OHIO,                                     CASE NO. 5-24-24

        PLAINTIFF-APPELLEE,

   V.
                                                   OPINION AND
JASON B. NICHOLSON,                                JUDGMENT ENTRY
        DEFENDANT-APPELLANT.




                Appeal from Hancock County Common Pleas Court
                          Trial Court No. 2023 CR 00306

                       Judgment Reversed and Cause Remanded

                              Date of Decision: July 28, 2025



APPEARANCES:

         W. Alex Smith for Appellant
Case No. 5-24-24




ZIMMERMAN, J.

       {¶1} Defendant-appellant, Jason B. Nicholson (“Nicholson”), appeals the

June 17, 2024 judgment entry of sentencing of the Hancock County Court of

Common Pleas. For the reasons that follow, we reverse.

       {¶2} This case stems from a stop of Nicholson’s vehicle initiated by the

Findlay police on January 18, 2023, for the purpose of arresting Nicholson’s sole

passenger. Following the passenger’s arrest, Nicholson gave consent for law

enforcement to search his vehicle. The passenger admitted to possessing the drugs

and drug paraphernalia found in her purse. In addition to the drugs found in the

passenger’s purse, a small item was found “pushed down in between the driver’s

seat and the center console that was right by the seat belt release.” (Apr. 29, 2024

Tr. at 162). The small item was found “with a, like a brown piece of paper, or

something like brown, maybe a napkin or a piece of paper, like it had been purposely

concealed there.” (Id. at 164). Law enforcement believed the concealed item

contained suspected narcotics. Subsequent testing by BCI established the concealed

item contained 0.28 grams of cocaine.

       {¶3} On July 25, 2023, the Hancock County Grand Jury indicted Nicholson

on a single count of possession of cocaine in violation of R.C. 2925.11(A), a fifth-




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degree felony. On September 20, 2023, Nicholson appeared for arraignment and

entered a plea of not guilty.

       {¶4} On April 24, 2024, the State filed a notice of intent to use “any and all

items of evidence available to the State” at trial. (Doc. No. 35). Thereafter, on April

26, 2024, the State filed discovery setting forth Nicholson’s prior convictions as

follows:

           a. Hancock County Common Pleas Court, Case No. 1996CR163
              11/20/1997
              Burglary – Felony 2
              Breaking and Entering, three counts – Felony 5

           b. Allen County Common Pleas Court, Case No. 2006CR518
              5/15/2007
              Possession of Cocaine – Felony 5

(Doc. No. 37).

       {¶5} On April 26, 2024, Nicholson filed a motion in limine requesting that

the trial court issue a pretrial ruling on the admissibility of evidence of his prior

convictions.     Nicholson argued that the burglary and breaking-and-entering

convictions from 1997 were 20 years old, not relevant to the current offense, and

highly prejudicial.    As to the possession-of-cocaine conviction from 2007,

Nicholson argued that the conviction was inadmissible under Evid.R. 404(B) as a

prior bad act. Nicholson further argued that the conviction was over ten years old,

not relevant, and highly prejudicial. Nicholson also argued that the State failed to




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provide sufficient notice of its intention to use such evidence for impeachment

purposes as required by Evid.R. 609(B).

       {¶6} The case proceeded to trial on April 29, 2024. Prior to jury voir dire,

the trial court addressed the issue of Nicholson’s prior convictions and determined

that evidence of the prior convictions was admissible for impeachment purposes if

Nicholson elected to testify. In making its decision, the trial court erroneously

concluded that Nicholson’s prior convictions “are all theft or theft-related offenses,

not subject to the 10 year limitation” of Evid.R. 609. (Apr. 29, 2024 Tr. at 9).

       {¶7} Nicholson testified in his own defense at trial. During the State’s cross-

examination of Nicholson, the trial court gave the following limiting instruction:

               THE COURT: All right. Ladies and gentlemen, it is my belief
       that [the State] is going to be asking some questions of this witness
       regarding possible prior convictions. The evidence that you’re about
       to hear is being admitted for a very limited purpose. It is not being
       received, and you cannot consider it to prove the character of the
       Defendant, or to prove that he is acting somehow in conformity with
       those prior acts.

              You may consider the evidence only for the purposes of testing
       the Defendant’s credibility and what weight, if any, to be given to the
       Defendant’s testimony. You cannot consider this evidence for any
       other purpose.

(Id. at 220-221). The jury then heard evidence of Nicholson’s prior convictions of

burglary, breaking and entering, and possession of cocaine. The jury also heard

evidence that Nicholson served seven years in prison on the burglary conviction.




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       {¶8} On April 29, 2024, the jury found Nicholson guilty of possession of

cocaine.

       {¶9} On June 17, 2024, the trial court sentenced Nicholson to five years of

community control sanctions.

       {¶10} Nicholson filed his notice of appeal on July 1, 2024. He raises two

assignments of error for our review.

                             First Assignment of Error

       The trial court erred by permitting the introduction of irrelevant
       and prejudicial prior convictions in violation of the Ohio Rules of
       Evidence 404(B) and 609(B).

       {¶11} In his first assignment of error, Nicholson argues that the trial court

erred by admitting evidence of his prior convictions without first making a

determination that “the probative value substantially outweighs its prejudicial

effect” as required under Evid.R. 609(B). (Appellant’s Brief at 4). Nicholson

contends that the admission of such evidence improperly prejudiced the jury and

substantially affected his right to a fair trial. We agree.

                                 Standard of Review

       {¶12} “It is well settled that ‘[t]he trial court has broad discretion in the

admission of evidence, and unless it has clearly abused its discretion and the

defendant has been materially prejudiced thereby, an appellate court should not




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disturb the decision of the trial court.’” State v. Barnes, 94 Ohio St.3d 21, 23 (2002),

quoting State v. Issa, 93 Ohio St.3d 49, 64 (2001).

       {¶13} “‘Evidence of prior convictions is prohibited except under narrow

circumstances.’” State v. Jackson, 2010-Ohio-2297, ¶ 25 (3d Dist.), quoting State

v. Trimble, 2009-Ohio-2961, ¶ 172. “One such circumstance is for impeachment

purposes when a defendant testifies.” Jackson at ¶ 25. Specifically, Evid.R.

609(A)(2) provides that “evidence that the accused has been convicted of a crime is

admissible if the crime was punishable by death or imprisonment in excess of one

year . . . and if the court determines that the probative value of the evidence

outweighs the danger of unfair prejudice, of confusion of the issues, or of misleading

the jury.”

       {¶14} If, however, more than ten years has elapsed since the date of the

conviction, the release from confinement, or the termination of community control

sanctions, evidence of the old conviction is not admissible “unless the court

determines, in the interests of justice, that the probative value of the conviction

supported by specific facts and circumstances substantially outweighs its prejudicial

effect.” Evid.R. 609(B).

                                       Analysis

       {¶15} As an initial matter, we note that the State did not file an appellee’s

brief. Under these circumstances, App.R. 18(C) provides that we “may accept the



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appellant’s statement of the facts and issues as correct and reverse the judgment if

appellant’s brief reasonably appears to sustain such action.”

       {¶16} Following our review of the record, we accept Nicholson’s statement

of the facts and issues related to his first assignment of error as correct and reverse

the judgment of the trial court. In particular, we conclude that the trial court

committed reversible error when it admitted evidence of Nicholson’s prior

convictions—wherein more than ten years has elapsed since the date of each

conviction, the release from confinement, or the termination of community control

sanctions—without first making a determination as required under Evid.R. 609(B).

See State v. Allen, 29 Ohio St.3d 53, 55 (1987). That is, the trial court failed to

determine, in the interests of justice, whether the probative value of Nicholson’s old

convictions supported by specific facts and circumstances substantially outweighs

their prejudicial effect.

       {¶17} We further conclude that Nicholson was materially prejudiced by the

trial court’s failure to make a determination as required under Evid.R. 609(B)

because he was denied a fair trial. Moreover, the trial court’s limiting instruction to

the jury that Nicholson’s prior convictions are not to be considered to prove his

character, or to show that he acted in conformity therewith, is insufficient to cure

the error. Of particular concern is the jury hearing evidence of Nicholson’s prior

conviction of possession of cocaine. “When the prior conviction is for the same



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crime with which a defendant is presently charged, the risk of unfair prejudice is

greater. The natural tendency of prior conviction evidence in this situation is to

instill in the minds of the jurors the idea that ‘if he did it before, he probably did [so]

this time.’” State v. Evans, 2006-Ohio-2564, ¶ 68 (4th Dist.), quoting State v.

Goney, 87 Ohio App.3d 497, 502 (2nd Dist. 1993), citing Gordon v. United States,

383 F.2d 936, 940 (D.C.Cir. 1967).

       {¶18} Accordingly, Nicholson’s first assignment of error is sustained.

       {¶19} Having concluded that the trial court committed reversible error, we

must next consider Nicholson’s second assignment of error challenging the

sufficiency of the evidence. See State v. Gideon, 2020-Ohio-6961, ¶ 2 (“An

assignment of error challenging the sufficiency of the evidence is potentially

dispositive of a defendant’s conviction and may not be rendered moot by a remand

on any other assignment of error.”).

                            Second Assignment of Error

       The State failed to prove the element of “knowingly” beyond a
       reasonable doubt.

       {¶20} In his second assignment of error, Nicholson argues that his

possession-of-cocaine conviction is not supported by sufficient evidence.

Specifically, Nicholson contends that the State presented insufficient evidence that

he “knowingly” possessed the cocaine found between the driver’s seat and the

center console of his vehicle.


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                                  Standard of Review

       {¶21} “An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at

trial to determine whether such evidence, if believed, would convince the average

mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio

St.3d 259 (1991), paragraph two of the syllabus, superseded by state constitutional

amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997). Accordingly,

“[t]he relevant inquiry is 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.” Id. “In deciding if the

evidence was sufficient, we neither resolve evidentiary conflicts nor assess the

credibility of witnesses, as both are functions reserved for the trier of fact.” State v.

Jones, 2013-Ohio-4775, ¶ 33 (1st Dist.), citing State v. Williams, 2011-Ohio-6267,

¶ 25 (1st Dist.).    See also State v. Berry, 2013-Ohio-2380, ¶ 19 (3d Dist.)

(“Sufficiency of the evidence is a test of adequacy rather than credibility or weight

of the evidence.”), citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).

       {¶22} Under Crim.R. 29(A), a court “shall order the entry of a judgment of

acquittal of one or more offenses . . . if the evidence is insufficient to sustain a

conviction of such offense or offenses.” Consequently, “[a] motion for acquittal

under Crim.R. 29(A) is governed by the same standard as the one for determining



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whether a verdict is supported by sufficient evidence.” State v. Tenace, 2006-Ohio-

2417, ¶ 37.

                                      Analysis

       {¶23} In this case, Nicholson moved for a judgment of acquittal under

Crim.R. 29(A) at the close of the State’s case-in-chief, which the trial court denied.

Thereafter, Nicholson presented evidence in his defense, but failed to renew his

Crim.R. 29(A) motion at the close of all the evidence. Thus, according to this

court’s precedent, Nicholson has waived all but plain error. See State v. Hurley,

2014-Ohio-2716, ¶ 38 (3d Dist.) (noting that reviewing a sufficiency-of-the-

evidence argument for prejudicial error or plain error is academic because a

conviction based on legally insufficient evidence is a denial of due process and

warrants reversal). Accordingly, we will proceed to determine whether the State

presented sufficient evidence during its case-in-chief.

       {¶24} Nicholson was convicted of possession of cocaine in violation of R.C.

2925.11(A), a felony of the fifth degree. R.C. 2925.11(A) provides, “No person

shall knowingly obtain, possess, or use a controlled substance or a controlled

substance analog.”

       {¶25} “‘Possess’ or ‘possession’ means having control over a thing or

substance, but may not be inferred solely from mere access to the thing or substance




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through ownership or occupation of the premises upon which the thing or substance

is found.” R.C. 2925.01(K).

       {¶26} On appeal, Nicholson argues only that there is insufficient evidence

that he had knowledge of the drugs found between the driver’s seat and the center

console of his vehicle. Nicholson asserts that “[s]imply being in a vehicle with

drugs is not enough to prove knowledge of possession.” (Appellant’s Brief at 9).

Because knowledge is the only element Nicholson challenges on appeal, our review

is limited to this issue.

       {¶27} “The issue of whether a person charged with drug possession

knowingly possessed a controlled substance ‘is to be determined from all the

attendant facts and circumstances available.’” State v. Brooks, 2012-Ohio-5235, ¶

45 (3d Dist.), quoting State v. Teamer, 82 Ohio St.3d 490, 492 (1998). “Knowingly”

is defined as follows:

       A person acts knowingly, regardless of purpose, when the person is
       aware that the person’s conduct will probably cause a certain result or
       will probably be of a certain nature. A person has knowledge of
       circumstances when the person is aware that such circumstances
       probably exist. When knowledge of the existence of a particular fact
       is an element of an offense, such knowledge is established if a person
       subjectively believes that there is a high probability of its existence
       and fails to make inquiry or acts with a conscious purpose to avoid
       learning the fact.

R.C. 2901.22(B).




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       {¶28} “Possession of drugs can be either actual or constructive.” State v.

Bustamante, 2013-Ohio-4975, ¶ 25 (3d Dist.). “A person has ‘actual possession’ of

an item if the item is within his immediate physical possession.” State v. Williams,

2004-Ohio-1130, ¶ 23 (4th Dist.). “A person has ‘constructive possession’ if he is

able to exercise dominion and control over an item, even if the individual does not

have immediate physical possession of it.” Bustamante at ¶ 25. “For constructive

possession to exist, ‘[i]t must also be shown that the person was conscious of the

presence of the object.’” Id., quoting State v. Hankerson, 70 Ohio St.2d 87, 91

(1982).

       {¶29} “[T]he State may prove the existence of the various elements of

constructive possession of contraband by circumstantial evidence alone.”

Bustamante at ¶ 25. “Absent a defendant’s admission, the surrounding facts and

circumstances, including the defendant’s actions, are evidence that the trier of fact

can consider in determining whether the defendant had constructive possession.”

State v. Voll, 2012-Ohio-3900, ¶ 19 (3d Dist.).

       {¶30} Viewing the evidence presented in the State’s case-in-chief in a light

most favorable to the prosecution, we conclude that a rational trier of fact could

have determined “from all the attendant facts and circumstances available” that

Nicholson knowingly possessed the drugs found between the driver’s seat and the

center console of his vehicle. Teamer, 82 Ohio St.3d at 492. Specifically, the State



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presented testimony from law enforcement to establish that the vehicle was

registered to Nicholson and that he was the driver at the time of the stop. The

testimony further established that the drugs were found in an area of the vehicle

where Nicholson was able to exercise dominion and control over them. The

arresting officer testified that, after stopping the vehicle, he quickly approached the

passenger’s side of the vehicle and did not see “any sort of movements . . . or jostling

around” between Nicholson and the passenger.            (Apr. 29, 2024 Tr. at 148).

Moreover, the detective who conducted the search of Nicholson’s vehicle testified

that he did not see the passenger lean over or place anything in the driver’s side of

the vehicle.

       {¶31} “A jury can make reasonable inferences from the evidence.” State v.

Knight, 2016-Ohio-8134, ¶ 26 (10th Dist.). “‘It is permissible for a jury to draw

inferences from the facts presented to them.’” Id., quoting State v. Sanders, 1998

WL 78787, *3 (6th Dist. Feb. 13, 1998), citing State v. Palmer, 80 Ohio St.3d 543,

561 (1997). Here, the fact that the drugs were found in an area of the vehicle that

was easily accessible to the driver, coupled with the testimony from law

enforcement that the passenger did not make any movement near the driver’s side

of the vehicle, leads to an inference that Nicholson knowingly possessed the drugs.

       {¶32} Thus, when examining the evidence in a light most favorable to the

State, we conclude that a rational trier of fact could have inferred from the testimony



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of law enforcement that that Nicholson knowingly possessed the drugs found

between the driver’s seat and the center console of his vehicle. See State v.

Willamson, 2017-Ohio-7098, ¶ 58 (2d Dist.) (sufficient evidence supported the

conclusion that the defendant knowingly possessed the heroin and cocaine where

officers found a bag of heroin capsules on the passenger seat of the vehicle and an

additional baggie of cocaine “in the middle console of the car, in the ashtray, just

below the radio [both of which] would have been easily accessible to the driver”).

       {¶33} Accordingly, Nicholson’s second assignment of error is overruled.

       {¶34} Having found error prejudicial to the appellant herein in the particulars

assigned and argued in his first assignment of error, we reverse the judgment of the

trial court and remand this cause for a new trial.

                                                                Judgment Reversed
                                                              and Cause Remanded

WALDICK, P.J. and WILLAMOWSKI, J., concur.




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                            JUDGMENT ENTRY

       For the reasons stated in the opinion of this Court, the first assignment of

error is sustained and the second assignment of error is overruled, and it is the

judgment and order of this Court that the judgment of the trial court is reversed with

costs assessed to Appellee for which judgment is hereby rendered. The cause is

hereby remanded to the trial court for further proceedings and for execution of the

judgment for costs.

       It is further ordered that the Clerk of this Court certify a copy of this Court’s

judgment entry and opinion to the trial court as the mandate prescribed by App.R.

27; and serve a copy of this Court’s judgment entry and opinion on each party to the

proceedings and note the date of service in the docket. See App.R. 30.




                                            William R. Zimmerman, Judge



                                            Juergen A. Waldick, Judge



                                            John R. Willamowski, Judge

DATED:
/hls




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