A few days ago, October 9, 2012, Kevin Stewart had his
Delaware County conviction for possessing 30 Percocet pills, a 3rd degree felony, affirmed after a jury convicted him. He appealed arguing
that the State failed to prove what is “bulk amount”, the evidence
against him for “constructive possession” was insufficient,
that the judge erred in sentencing him to 48 months in prison, that the
court permitted prior “bad acts” into the trial, and that the
prosecutor made improper remarks during closing argument.
Mr. Stewart won one of his issues and lost the other 4. Unfortunately for
him, he didn’t win on any issue that would have vacated his conviction
and/or resulted in a new trial. He was quite lucky in that he started
his trial the day before HB 86 became law and was sentenced the day HB
86 became law. HB 86 capped sentencing for possession of a schedule II
(F3) at 36 months. So, he will most likely have his 48 month sentence
chopped down to 36 months.
Moving on to his 4 arguments that failed. He argued that the state failed
to prove “bulk amount”. Strangely, his lawyer stipulated as
to “bulk amount”. He argued the insufficiency of the evidence
to support constructive possession [the pill bottle containing the 30
pills was found on the floorboard of his car] must have been sufficient
because a jury convicted him beyond a reasonable doubt based upon that
evidence. When does sufficiency of evidence ever win?
Apparently, the State did a great job of developing their case because
they discovered a witness who had testimony supporting the allegation
that Mr. Stewart knew the street value of “Percs” and how to
make money off them. On appeal, Mr. Stewart complains of this testimony
citing Evid.R. 404(B) (aka “Prior Bad Acts”).
The State argued that evidence of the defendant’s knowledge of Percocets,
the street value and how one trafficks in them negates any argument of
mistake by the defendant.
Finally, the closing argument by the prosecutor was suggested by the defense
as being too close to him expressing his personal opinions on the defendant’s
guilt. I read the relevant transcript. I didn’t see any objectionable
closing remarks. Neither did the Fifth District.
The lesson from this case is (1) stipulate as little as possible and (2)
object as much as possible to preserve the record.