State v. Smith
Citation2023 Ohio 4504
Date Filed2023-12-12
Docket23 CO 0020
JudgeHanni
Cited1 times
StatusPublished
Syllabus
trafficking in drugs possession of drugs controlled drug buy best evidence rule no prosecutorial misconduct sufficient evidence to support conviction conviction not against manifest weight of the evidence
Full Opinion (html_with_citations)
[Cite as State v. Smith,2023-Ohio-4504
.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
COLUMBIANA COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
DONALD R. SMITH,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 23 CO 0020
Criminal Appeal from the
Court of Common Pleas of Columbiana County, Ohio
Case No. 2022 CR 285
BEFORE:
Mark A. Hanni, Cheryl L. Waite, Carol Ann Robb, Judges.
JUDGMENT:
Affirmed in part. Reversed and Remanded in part.
Atty. Vito J. Abruzzino, Columbiana County Prosecutor, and Atty. Shelley M. Pratt,
Assistant Prosecuting Attorney, Columbiana County Prosecutor's Office, for Plaintiff-
Appellee and
Atty. Christopher P. Lacich, Roth, Blair, for Defendant-Appellant.
Dated: December 12, 2023
–2–
HANNI, J.
{¶1} Defendant-Appellant, Donald R. Smith, appeals from a Columbiana County
Common Pleas Court judgment convicting him of one count of trafficking in drugs and
one count of possession of drugs, following a jury trial.
{¶2} On August 5, 2021, on a tip from a confidential informant (CI), the
Columbiana County Drug Task Force arranged a controlled drug buy by the CI from
Appellant. The two arranged to meet at Mount Zion Lutheran Cemetery. They agreed in
advance on a purchase of 3.5 grams of methamphetamine, known as a “ball” of
methamphetamine, for $140. Detective Jordan Reynolds provided the CI with $140 in
pre-recorded “buy money” to purchase the drugs.
{¶3} The task force listened in real time to Appellant and the CI. When they
heard the two were engaging in a sexual encounter, which they had instructed the CI not
to do, they converged on the cemetery. They found that Appellant had the $140 in pre-
recorded buy money in his pocket. The CI did not have any drugs on her person. The
CI’s car and one other car were at the scene. The other car belonged to Appellant’s wife.
Appellant denied driving his wife’s car to the cemetery. The task force knew this to be
untrue, however, as Detective-Sergeant Brett Grabman had seen Appellant driving that
car just prior to arriving at the cemetery. The officers arrested Appellant for obstructing
official business. Appellant then admitted to driving the car and stated he was driving
with a suspended license.
{¶4} The officers were then going to have the car towed. So they conducted a
search of the car. In the trunk they found a black bag. Inside the bag, they found four
baggies containing methamphetamine, a prescription bottle with Appellant’s name on it
containing more methamphetamine, Appellant’s identification card, and $322 in cash.
Appellant denied that the drugs were his.
{¶5} On May 11, 2022, a Columbiana County Grand Jury indicted Appellant on
one count of trafficking in drugs, a third-degree felony in violation of R.C. 2925.03(A)(1),
with a forfeiture specification; one count of trafficking in drugs, a fourth-degree felony in
violation of R.C. 2925.03(A)(2), with a forfeiture specification; and one count of
possession of drugs, a third-degree felony in violation of R.C. 2925.11(A), with a forfeiture
specification. Appellant entered a not guilty plea and the matter proceeded to a jury trial.
Case No. 23 CO 0020
–3–
{¶6} Plaintiff-Appellee, the State of Ohio, dismissed the first count of trafficking
in drugs on the day of trial. The jury found Appellant guilty of the remaining two counts
but found the money listed in the specifications was not subject to forfeiture. The court
then proceeded to sentencing.
{¶7} The trial court sentenced Appellant to 16 months in prison for trafficking in
drugs and 30 months in prison for possession of drugs in addition to a $5,000 fine. The
court then found the two counts merged for sentencing purposes, however, resulting in
an aggregate sentence of 30 months and a $5,000 fine.
{¶8} Appellant filed a timely notice of appeal on March 30, 2023. He now raises
four assignments of error.
{¶9} Appellant’s first assignment of error states:
THE TRIAL COURT COMMITTED PLAIN ERROR, OR REVERSIBLE
ERROR AND AN ABUSE OF DISCRETION WHEN IT ALLOWED THE
PROSECUTION WITNESS TO PARAPHRASE SELECT PORTIONS OF
THE UNDERCOVER AUDIO CONTENTS OVER OBJECTION.
{¶10} In this assignment of error, Appellant takes issue with Detective Reynolds’
testimony and Detective-Sergeant Grabman’s testimony as it related to matters that were
audio recorded during the controlled buy.
{¶11} Appellant first argues the trial court committed plain error by allowing
Detective Reynolds to testify regarding the sex act. Appellant contends that allowing the
detective to testify as to what he recalled hearing was prejudicial. He claims that since
the audio recording still existed, the best evidence rule required that the recording be
played for the jury.
{¶12} Detective Reynolds testified that there was an audio recording of the
attempted controlled buy. (Tr. 283-284). He stated that usually there is also a video
recording but in this case the video camera was covered by the CI’s clothing. (Tr. 284).
{¶13} On direct examination, Detective Reynolds testified that while he was
monitoring the encounter by way of the audio recording, an issue occurred and the task
force converged on Appellant and the CI. (Tr. 252-253). He stated the issue arose due
to “activities engaged in by the [CI]”. (Tr. 253).
Case No. 23 CO 0020
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{¶14} On cross-examination, defense counsel questioned the detective as to
whether the audio recording revealed that the CI was performing a sex act on Appellant.
(Tr. 285). On redirect examination, the prosecutor asked the detective if he was able to
hear who was requesting the sex act. (Tr. 294). The detective stated he heard Appellant
ask to have sex with the CI multiple times and when she denied him, he asked her for
oral sex. (Tr. 294). There was no objection to this testimony.
{¶15} Because there was no objection to Detective Reynolds’ testimony, we must
review this assignment of error for plain error. Plain error should be invoked only to
prevent a clear miscarriage of justice. State v. Underwood, 3 Ohio St.3d 12, 14,444 N.E.2d 1332
(1983). Plain error is one in which but for the error, the outcome of the trial would have been different. State v. Long,53 Ohio St.2d 91, 97
,372 N.E.2d 804
(1978).
{¶16} Appellant contends the best evidence rule required that the State play the
audio tape of the encounter between him and the CI instead of calling Detective Reynolds
to testify regarding what he heard between them.
{¶17} Evid.R. 1002, known as the best evidence rule, provides: “To prove the
content of a writing, recording, or photograph, the original writing, recording, or
photograph is required[.]”
{¶18} Detective Reynolds listened to the encounter between Appellant and the CI
as it was occurring. He then testified as to what he heard.
{¶19} In State v. Cechura, 7th Dist. Columbiana No. 99 CO 74,2001-Ohio-3250
, while examining an argument based on the best evidence rule, this Court stated: “As aforementioned, the officer began testifying from memory. Appellant objected to his ‘paraphrasing’ and argued that the tape should be played instead. This objection should have been overruled because the officer's testimony from memory was competent primary evidence.” While we concluded that a tape recording was more likely to be free from error than a witness testifying from memory, we found that when a person testifies from memory about a conversation they had that happened to be recorded, they are not attempting to prove the contents of a recording.Id.
Case No.23 CO 0020
–5–
{¶20} In reaching our decision, we relied in part on State v. James, 41 Ohio
App.2d 248,325 N.E.2d 267
(2d Dist.1974). In James, while examining whether witness
testimony or a tape recording of the subject conversation was admissible, the Second
Appellate District explained:
“Where proof of a conversation has been of two different kinds, namely, a
recording thereof and testimony by witnesses who overheard it, it has ben
[sic.] argued that both the recording and the testimony were the best
evidence; however, the courts have not relegated either to a secondary
position, but have held that both types of evidence are equally competent
primary evidence, and that one is not to be excluded because of the
existence of the other.”
James, 41 Ohio App.2d at 250, quoting 29 American Jurisprudence 2d 496, Evidence,
Section 436.
{¶21} Other courts have followed this same reasoning, finding both the recorded
testimony and the witness’s testimony who overheard the conversation to be admissible.
See State v. Dixon, 152 Ohio App.3d 760,2003-Ohio-2550
,790 N.E.2d 349, ¶ 22
(finding no merit with appellant’s argument that tape was the best evidence of the two marijuana sales, thus precluding witness's testimony); State v. Rinaldi, 11th Dist. Lake No. 89-L-14- 129,1991 WL 70112
, *4 (Apr. 26, 1991), (noting agent who witnessed and participated
in the transaction was available to testify as to the taped conversation since she
overheard it directly as it happened).
{¶22} Based on the above case law, there was no plain error in allowing Detective
Reynolds to testify as to what he heard transpire between Appellant and the CI in real
time.
{¶23} Appellant next argues the trial court abused its discretion by allowing
Detective-Sergeant Grabman to testify as to what he learned by listening to the audio
recording. He asserts that hearsay exceptions do not apply to statements heard by the
witness second-hand. He points out that Detective-Sergeant Grabman was not listening
to the audio of the controlled buy in real-time as was Detective Reynolds. Appellant again
Case No. 23 CO 0020
–6–
contends that the best evidence rule required that the audio recording be played for the
jury.
{¶24} Detective-Sergeant Grabman is the director of the Columbiana County Drug
Task Force. As such, he was involved with the attempted controlled buy in this case.
The detective-sergeant stated that he did not have a radio frequency to listen in real time
to the controlled buy between Appellant and the CI as Detective Reynolds did. (Tr. 339-
340). However, he later reviewed the audio recording. (Tr. 340). He described hearing
a discussion between the CI and Appellant. (Tr. 340-341). The prosecutor then asked
Detective-Sergeant Grabman if he recalled hearing any discussion related to drugs. (Tr.
341). Defense counsel objected to this question on the basis of hearsay. (Tr. 341). The
trial court overruled the objection stating that it was an admission of a party opponent.
(Tr. 342). Detective-Sergeant Grabman went on to testify that he heard Appellant
question the CI as to who she was getting the drugs for. (Tr. 342).
{¶25} Because counsel objected to this line of questioning, we will review the
admission of Detective-Sergeant Grabman’s testimony for abuse of discretion. A trial
court has broad discretion in determining whether to admit or exclude evidence and its
decision will not be reversed absent an abuse of discretion. State v. Mays, 108 Ohio
App.3d 598, 617,671 N.E.2d 553
(8th Dist.1996). Abuse of discretion means that the trial court's decision was unreasonable, arbitrary, or unconscionable. State v. Adams,62 Ohio St.2d 151, 157
,404 N.E.2d 144
(1980).
{¶26} Detective-Sergeant Grabman did not listen to the events unfold in real time
as Detective Reynolds did. Thus, it is questionable whether his testimony, standing
alone, would be admissible under the best evidence rule. But what Appellant fails to
mention is that Detective Reynolds had already testified regarding Appellant’s statements
to the CI about the drugs. Detective Reynolds testified before Detective-Sergeant
Grabman testified. And as discussed above, because Detective Reynolds was listening
to Appellant and the CI in real time, his testimony as to what he heard was admissible.
{¶27} Detective Reynolds testified that during his encounter with the CI, Appellant
asked the CI who she was purchasing the drugs for. (Tr. 297). The CI responded that
they were for a man in Salem. (Tr. 297). Thus, when Detective-Sergeant Grabman
Case No. 23 CO 0020
–7–
testified that he heard Appellant question the CI as to who she was getting the drugs for,
the jury had already heard this evidence. So if there was error, it was harmless.
{¶28} Accordingly, Appellant’s first assignment of error is without merit and is
overruled.
{¶29} Appellant’s second assignment of error states:
THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT ALLOWED
PROSECUTORIAL MISCONDUCT TO OCCUR WHEN THE
PROSECUTOR PORTRAYED THE APPELLANT’S ATTORNEY AS A
CRIMINAL DURING AN EXAMPLE GIVEN TO JURORS DURING VOIR
DIRE.
{¶30} During voir dire, in explaining that the State has the burden to prove the
elements of the offense beyond a reasonable doubt, the prosecutor used the following
example:
MS. RILEY JONES [the prosecutor]: I’m going to give you a little example,
okay. We’re going to talk about - - sorry, Attorney King [defense counsel] -
- I’m going to use him as my example. An individual, Attorney King here,
who has been accused of stealing a tie from a local store, okay.
We have three individuals who were at the store.
The first one says, “I saw Attorney King come in, take the tie - - the red tie
off the rack, stick it in his pocket, and walk out the store without paying for
it.”
Second person says, “I saw Attorney King come in. He took a dark-colored
tie off the - - the stand, stuck it in his pocket, and walked out without paying
for it.”
Third person comes in and says that, “I saw Attorney King come into the
store, and he took a pink tie from the rack, and stuck it in his pocket, and he
walked out, and he didn’t pay for it.”
Case No. 23 CO 0020
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What color is the tie?
MALE JUROR: It doesn’t matter.
MS. RILEY JONES: And that’s my next question. Does it matter, the color
of the tie? No. The elements of the offense would not include the color of
the tie. They would include taking an item that didn’t belong to you and
walking out without paying for it, right, and the identity of the Defendant. So
you wouldn’t need - - you wouldn’t hold the State to the burden of proving
without a doubt, the color of the tie; right? That color of the tie would not be
an element of the offense. So if you’re satisfied beyond a reasonable doubt
that Attorney King took the tie without paying for it, right, what would your
verdict be? Go ahead. Shout it out.
(Tr. 35-37). Defense counsel did not object to being used as an example in this
hypothetical.
{¶31} Appellant contends the prosecutor committed misconduct by using defense
counsel in the hypothetical example during voir dire. He claims the prosecutor was giving
a subliminal message to the jury that defense counsel is a criminal and was defending a
man (Appellant) who is a criminal. Appellant asserts he suffered prejudice as a result.
{¶32} Defense counsel did not object to the prosecutor's questions. Thus,
Appellant has waived all but plain error. State v. Hanna, 95 Ohio St.3d 285, 2002-Ohio- 2221,767 N.E.2d 678
, ¶ 77.
{¶33} The test for prosecutorial misconduct is whether the conduct complained of
deprived the defendant of a fair trial. State v. Fears, 86 Ohio St.3d 329, 332,715 N.E.2d 136
(1999). In reviewing a prosecutor’s alleged misconduct, a court should look at whether the prosecutor's remarks were improper and whether the prosecutor’s remarks affected the appellant's substantial rights. State v. Smith,14 Ohio St.3d 13, 14
,470 N.E.2d 883
(1984). “[T]he touchstone of analysis ‘is the fairness of the trial, not the culpability of the prosecutor.’” Hanna, 95 Ohio St.3d at ¶ 61, quoting Smith v. Phillips,455 U.S. 209, 219
,102 S.Ct. 940
,71 L.Ed.2d 78
(1982). An appellate court should not deem a trial unfair if, in the context of the entire trial, it appears clear beyond a reasonable Case No.23 CO 0020
–9–
doubt that the jury would have found the defendant guilty even without the improper
comments. State v. LaMar, 95 Ohio St.3d 181,2002-Ohio-2128
,767 N.E.2d 166, ¶ 121
.
{¶34} Here, the prosecutor simply used defense counsel as an example in her
hypothetical example to explain to the jury what the elements of an offense include and
what they do not include. She explained to the jury that she was using defense counsel
as an example. There was no insinuation that defense counsel was actually a criminal
or that he had committed a theft offense. Thus, the prosecutor’s comments did not
amount to prosecutorial misconduct.
{¶35} Moreover, Appellant has failed to show a reasonable probability exists that,
but for the prosecutor’s hypothetical example, the result of his trial would have been
different. In other words, Appellant cannot demonstrate plain error as a direct result of
the prosecutor’s example.
{¶36} Accordingly, Appellant’s second assignment of error is without merit and is
overruled.
{¶37} Appellant’s third assignment of error states:
THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND AN ABUSE
OF DISCRETION WHEN IT FAILED TO GRANT THE APPELLANT’S
MOTION TO DISMISS [RULE 29] FOR HIS CONVICTIONS WERE BASED
ON LEGALLY INSUFFICIENT EVIDENCE.
{¶38} Appellant claims here that his convictions were not supported by sufficient
evidence and, therefore, the trial court erred in failing to grant his Crim.R. 29 motion for
acquittal. Appellant contends that as to the aggravated trafficking in drugs, there was no
evidence that drugs were exchanged between him and the CI. He claims the drugs found
in the trunk of his wife’s car could have been placed there for someone’s personal use.
As to the aggravated possession of drugs conviction, Appellant points out no drugs were
found on his person. Instead, the drugs were found in the trunk of his wife’s car.
{¶39} An appellate court reviews a denial of a motion to acquit under Crim.R. 29
using the same standard that an appellate court uses to review a sufficiency of the
evidence claim. State v. Rhodes, 7th Dist. Belmont No. 99 BA 62, 2002-Ohio-1572, at ¶ 9; State v. Carter,72 Ohio St.3d 545, 553
,651 N.E.2d 965
(1995). Case No.23 CO 0020
– 10 –
{¶40} Sufficiency of the evidence is the legal standard applied to determine
whether the case may go to the jury or whether the evidence is legally sufficient as a
matter of law to support the verdict. State v. Smith, 80 Ohio St.3d 89, 113,684 N.E.2d 668
(1997). Sufficiency is a test of adequacy. State v. Thompkins,78 Ohio St.3d 380, 386
,678 N.E.2d 541
(1997). Whether the evidence is legally sufficient to sustain a verdict is a question of law.Id.
In reviewing the record for sufficiency, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements proven beyond a reasonable doubt. Smith,80 Ohio St.3d at 113
. When evaluating the sufficiency of the evidence to prove the elements, it must be remembered that circumstantial evidence has the same probative value as direct evidence. State v. Thorn,2018-Ohio-1028
,109 N.E.3d 165, ¶ 34
(7th Dist.), citing State v. Jenks,61 Ohio St.3d 259, 272-273
,574 N.E.2d 492
(1991)
(superseded by state constitutional amendment on other grounds).
{¶41} A sufficiency of the evidence challenge tests the burden of production while
a manifest weight challenge tests the burden of persuasion. Thompkins at 390(Cook, J., concurring). Therefore, when reviewing a sufficiency challenge, the court does not evaluate witness credibility. State v. Yarbrough,95 Ohio St.3d 227
,2002-Ohio-2126
,747 N.E.2d 216
, ¶ 79. Instead, the court looks at whether the evidence is sufficient if believed.
Id. at ¶ 82.
{¶42} The jury convicted Appellant of possession of drugs in violation of R.C.
2925.11(A), which provides: “No person shall knowingly obtain, possess, or use a
controlled substance or a controlled substance analog.” Pursuant to R.C.
2925.11(C)(1)(b), “if the amount of the drug involved equals or exceeds the bulk amount
but is less than five times the bulk amount, aggravated possession of drugs is a felony of
the third degree, and there is a presumption for a prison term for the offense.”
{¶43} The jury also convicted Appellant of trafficking in drugs in violation of R.C.
2925.03(A)(2), which provides: “No person shall knowingly * * * [p]repare for shipment,
ship, transport, deliver, prepare for distribution, or distribute a controlled substance or a
controlled substance analog, when the offender knows or has reasonable cause to
believe that the controlled substance or a controlled substance analog is intended for sale
Case No. 23 CO 0020
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or resale by the offender or another person.” But the court found this offense merged
with the possession of drugs conviction.
{¶44} We must examine the evidence put forth by the State to determine if it was
sufficient to sustain the jury’s verdict.
{¶45} Erin Miller, a forensic scientist at the Ohio Bureau of Criminal Identification
and Investigation (BCI), was the State’s first witness. Miller tested the substances
recovered by the police in this case. She testified that the four baggies submitted as
State’s Exhibit 12, contained 3.02 grams of methamphetamine. (Tr. 224). Miller testified
that State’s Exhibit 13 was a plastic prescription bottle containing a crystalline substance
that contained 1.06 grams of methamphetamine. (Tr. 225-226). She stated that the total
weight of methamphetamine in this case was 4.08 grams. (Tr. 227). Miller stated that
the bulk amount for methamphetamine in Ohio is three grams. (Tr. 224).
{¶46} Detective Reynolds testified next. He was the detective assigned to this
investigation. Detective Reynolds stated that the task force was familiar with Appellant
from various tips. (Tr. 249). So when a CI mentioned she could purchase drugs from
Appellant, the task force arranged a controlled buy. (Tr. 249). The detective testified that
Appellant arranged to meet the CI at the Mount Zion Lutheran Cemetery during the
afternoon of August 5, 2021. (Tr. 250-251). The two agreed on a purchase of 3.5 grams
of methamphetamine, known as a “ball” of methamphetamine, for $140. (Tr. 297).
Detective Reynolds provided the CI with $140 in “buy money” to purchase drugs from
Appellant. (Tr. 251-252). Before providing the money, the task force photocopied it to
record the serial number of each of the bills. (Tr. 252).
{¶47} The CI met Appellant at the designated location. Detective Reynolds
testified that while he was listening to the transaction unfold between Appellant and the
CI, he heard Appellant ask the CI who she was buying the drugs for. (Tr. 297). Then,
during the transaction, the task force heard an issue arise. (Tr. 252). Detective Reynolds
stated that the situation was due to activities the CI engaged in with Appellant. (Tr. 253).
Consequently, the task force converged on the CI and Appellant as they were standing
in the cemetery. (Tr. 253). Two vehicles were located near them. (Tr. 254). One vehicle
belonged to the CI. (Tr. 254). The other vehicle had been driven by Appellant. (Tr. 254).
Case No. 23 CO 0020
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{¶48} Detective Reynolds subsequently searched the CI’s person and vehicle.
(Tr. 258). He did not find any drugs. (Tr. 258). He testified that a search of the area
turned up a glass narcotics pipe and a torch lighter hidden behind a tree near where
Appellant and the CI had met, which is where the CI indicated they might be found. (Tr.
264).
{¶49} On cross-examination, the detective stated that he and other members of
the task force had been listening to the meeting between the CI and Appellant as it was
happening. (Tr. 285). He heard the CI performing a sex act on Appellant despite being
told by the task force not to engage in sexual activity with Appellant. (Tr. 285, 295).
{¶50} Detective-Sergeant Grabman was the State’s final witness. He is the
director of the Columbiana County Drug Task Force. As the director, he approved
Detective Reynolds’ request for “buy money” to set up the controlled drug purchase
between the CI and Appellant. (Tr. 307-308). Detective-Sergeant Grabman was also a
surveillance officer during the controlled buy. (Tr. 310). He surveilled the area between
Appellant’s residence and the cemetery. (Tr. 314).
{¶51} The detective-sergeant testified that his officers made him aware that a
concern arose during the controlled buy. (Tr. 316). Consequently, he directed the officers
to stop the controlled buy immediately. (Tr. 316). He then joined his officers in responding
to the cemetery. (Tr. 316-317). Upon arrival, he noticed two vehicles near the CI and
Appellant. (Tr. 317). One of the vehicles belonged to the CI. (Tr. 317). The other vehicle,
a blue Saturn, was registered to Appellant’s wife. (Tr. 318). Detective-Sergeant Grabman
stated that he had seen Appellant drive past him in that vehicle just prior to when the CI
reached the cemetery. (Tr. 318).
{¶52} So as to protect the CI, Detective-Sergeant Grabman testified that the
officers told Appellant and the CI that they were responding to a call of suspicious activity.
(Tr. 320). The detective-sergeant then asked Appellant why the blue Saturn was at the
cemetery. (Tr. 320). Appellant responded that it was his wife’s car but he did not know
why it was there. (Tr. 320). The detective-sergeant knew this to be untrue because he
had just witnessed Appellant driving the Saturn. (Tr. 320). Appellant became verbally
combative with the officers. (Tr. 321). Detective-Sergeant Grabman asked Appellant if
he drove the Saturn to the cemetery. (Tr. 321). Appellant stated that he did not. (Tr.
Case No. 23 CO 0020
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321). At this point, the detective-sergeant decided to arrest Appellant for obstructing
official business due to his lies about how his wife’s car got to the cemetery. (Tr. 323).
Appellant responded that had he told the truth about driving his wife’s car, the detective-
sergeant would have arrested him for driving under a suspended license. (Tr. 323). Upon
further investigation, Detective-Sergeant Grabman learned that Appellant, in fact, did not
have a valid driver’s license. (Tr. 323).
{¶53} Appellant was subsequently searched and the task force’s money was
found in his pocket. (Tr. 324, 334). The officers then discussed having the Saturn towed
from the cemetery. (Tr. 324). They then undertook a search of the vehicle. (Tr. 324-
325). They found a black bag in the trunk. (Tr. 325). Inside the bag, the officers located:
four baggies of methamphetamine; a prescription bottle with Appellant’s name on it, which
contained more methamphetamine; Appellant’s wallet with his ID in it; and $332 in cash.
(Tr. 325, 335-337; State’s Exs. 12, 13). The individual baggies were labeled with either
“.5” or “G,” which Detective-Sergeant Grabman testified stood for one-half of a gram and
gram, respectively. (Tr. 337). He indicated this labeling was consistent with the drugs
being packaged for sale as opposed to the drugs being for personal use. (Tr. 338-339).
{¶54} In viewing this evidence in the light most favorable to the prosecution as we
are required to do, the evidence was sufficient to sustain Appellant’s conviction. The
testimony demonstrated that the CI arranged a meeting with Appellant at the cemetery to
purchase methamphetamine. The two agreed on a purchase of 3.5 grams of
methamphetamine, known as a “ball” of methamphetamine, for $140. Despite being
instructed not to engage in sexual activity with Appellant, the CI apparently did so. When
the officers who were listening to the events unfold heard this, they converged on the
cemetery. Upon searching Appellant, the officers found the $140 that they provided to
the CI in Appellant’s pocket. The CI did not have any drugs on her person. However, the
officers located a bag in the trunk of the car that Appellant had driven to the cemetery.
Inside the bag, the officers found small baggies containing methamphetamine, a
prescription bottle with Appellant’s name on it containing more methamphetamine,
Appellant’s identification card, and over $300 in cash. Testing revealed the baggies
contained a total of 4.08 grams of methamphetamine. The bulk amount for
methamphetamine in Ohio is three grams.
Case No. 23 CO 0020
– 14 –
{¶55} In the context of drug offenses, “possession” may be either actual
possession or constructive possession. State v. Carter, 7th Dist. Jefferson No. 97-JE-24,
2000 WL 748140, *4 (May 30, 2000). “Constructive possession exists when an individual exercises dominion and control over an object, even though that object may not be within his immediate physical possession.” State v. Wolery,46 Ohio St.2d 316, 329
,348 N.E.2d 351
(1976).
{¶56} A defendant's conviction for drug possession can be based upon
circumstantial evidence of possession. State v. DeSarro, 7th Dist. Columbiana No. 13
CO 39,2015-Ohio-5470
, ¶ 41. When drugs are readily usable and found in very close proximity to a defendant, these facts may constitute circumstantial evidence and support a conclusion that the defendant had constructive possession of the drugs. State v. Barker, 7th Dist. Jefferson No. 05-JE-21,2006-Ohio-1472, ¶ 78
, quoting State v. Kobi,122 Ohio App.3d 160, 174
,701 N.E.2d 420
(1997).
{¶57} In this case, the evidence was sufficient to prove that Appellant had
constructive possession of the drugs in the trunk of his wife’s car. Appellant drove the
car to the pre-arranged controlled drug buy. The drugs were in the trunk of the car in a
bag with Appellant’s ID and a prescription bottle with his name on it. He accepted the
$140 from the CI, which was the predetermined payment for a “ball” of methamphetamine.
Appellant and the CI were then interrupted by the task force due to their sexual encounter.
This evidence shows that the drugs were readily usable and found in close proximity to
Appellant, thus demonstrating constructive possession.
{¶58} Accordingly, Appellant’s third assignment of error is without merit and is
overruled.
{¶59} Appellant’s fourth assignment of error states:
THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND ABUSED
ITS DISCRETION WHEN IT FAILED TO VACATE THE APPELLANT’S
CONVICTIONS FOR THE SAME WERE AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
{¶60} In his final assignment of error, Appellant argues his convictions were
against the manifest weight of the evidence.
Case No. 23 CO 0020
– 15 –
{¶61} In determining whether a verdict is against the manifest weight of the
evidence, an appellate court must review the entire record, weigh the evidence and all
reasonable inferences and determine whether, in resolving conflicts in the evidence, the
jury clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered. Thompkins, 78 Ohio St.3d at 387. “Weight of the evidence concerns ‘the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other.’”Id.
(Emphasis sic.). In making its determination, a reviewing court is not required to view the evidence in a light most favorable to the prosecution but may consider and weigh all of the evidence produced at trial.Id. at 390
.
{¶62} Still, determinations of witness credibility, conflicting testimony, and
evidence weight are primarily for the trier of the facts. State v. DeHass, 10 Ohio St.2d
230,227 N.E.2d 212
(1967), paragraph one of the syllabus.
{¶63} In addition to the testimony set out above, we must also consider the
evidence put forth by the defense.
{¶64} Appellant testified in his own defense. According to Appellant, he went to
the cemetery on the day in question to meet a woman with whom he was having an affair.
(Tr. 378). He stated that the woman called him and wanted to come to his house but he
did not know when his wife would be home so they met at the cemetery. (Tr. 379). He
stated the woman owed him money and they were also going to have sex. (Tr. 380).
Appellant stated that when the task force appeared, he did not tell them why he was there.
(Tr. 381).
{¶65} Appellant acknowledged that the woman gave him money, which he placed
in his pocket. (Tr. 386). But he denied the money was for a drug purchase, stating instead
that she owed him money. (Tr. 386). He admitted that he asked the woman if she wanted
to “hit the pipe.” (Tr. 387). But he claimed he did not recognize the lighter and pipe that
were found under a tree near where he had been standing. (Tr. 387). Instead, he stated
that he was referring to something sexual with the phrase, “hit the pipe.” (Tr. 387).
{¶66} When asked if he drove his wife’s Saturn to the cemetery that day, Appellant
denied it. (Tr. 392). Yet he admitted that his wife’s Saturn and the other woman’s car
were the only two vehicles there. (Tr. 392). He also admitted that his wallet and his
Case No. 23 CO 0020
– 16 –
prescription bottle were in the trunk of his wife’s car. (Tr. 393). But he denied that the
drugs were his. (Tr. 393-394).
{¶67} The manifest weight of the evidence supports the jury’s verdict.
{¶68} The State put forth evidence that the CI arranged to meet Appellant at the
cemetery to purchase methamphetamine from him. The two arrived at the meeting point.
The CI gave Appellant the pre-marked drug-buy money provided to her by the task force.
The two then engaged in sexual activity. They were interrupted by the task force who
then found over four grams of methamphetamine in the trunk of Appellant’s wife’s car with
Appellant’s ID and a prescription bottle with his name on it.
{¶69} Although the appellate court acts as the proverbial “thirteenth” juror under
the manifest weight of the evidence standard, it rarely substitutes its own judgment for
that of the jury's. Thompkins, 78 Ohio St.3d at 387,678 N.E.2d 541
. This is because the trier of fact is in the best position to determine the credibility of the witnesses and the weight to be given to the evidence.Id.
{¶70} Here, Appellant denied driving his wife’s car to the cemetery to meet the CI,
denied having pre-arranged a drug sale, and denied that the methamphetamine found
with his ID and his prescription bottle was his. But the jury was able to listen to Appellant’s
testimony and consider it in addition to the testimony of the State’s witnesses. After
listening to Appellant’s testimony, the jury clearly did not find him credible. We will not
second-guess the jury’s credibility determination.
{¶71} Accordingly, Appellant’s fourth assignment of error is without merit and is
overruled.
{¶72} Finally, we are compelled to sua sponte raise another issue not raised by
Appellant. The trial court merged the trafficking in drugs with the possession of drugs.
Even though the trial court merged these offenses, it still entered sentences on both
offenses, mistakenly believing that merger was satisfied by running the sentences on the
merged offenses concurrently.
{¶73} When a court merges two offenses, however, it cannot sentence the
defendant on both offenses and order the sentences to run concurrently. State v.
Tapscott, 2012-Ohio-4213,978 N.E.2d 210
, ¶ 48 (7th Dist.). Instead, it must refrain from entering a sentence on one of the merged offenses.Id.
As this court has recognized: Case No.23 CO 0020
– 17 –
“Sentencing concurrently on merged counts does not satisfy the merger
doctrine as no sentence at all should be entered on one of the two merged
counts.” State v. Gardner, 7th Dist. No. 10 MA 52, 2011-Ohio-2644,2011 WL 2175814
, ¶ 24, citing State v. Whitfield,124 Ohio St.3d 319
, 2010-Ohio-
2, 922 N.E.2d 182, at ¶ 17.
Failure to merge allied offenses of similar import constitutes plain error even
where a defendant's sentences are run concurrently because “a defendant
is prejudiced by having more convictions than are authorized by law.” State
v. Underwood, 124 Ohio St.3d 365,2010-Ohio-1
,922 N.E.2d 923
, ¶ 31
(plain error even where it is a jointly recommended sentence), citing State
v. Yarbrough, 104 Ohio St.3d 1,2004-Ohio-6087
,817 N.E.2d 845
, ¶ 96-
102.
Id. at ¶ 48-49.
{¶74} In this case, the State recommended sentences on both counts and stated
that they would “have to run concurrently.” (Tr. 476). The State did not elect on which
offense it wished the trial court to enter a conviction and sentence. And the trial court did
not correct the State. Instead, while the court found that merger applied, it nonetheless
sentenced Appellant to 16 months in prison for trafficking and 30 months for possession
to run concurrently. (Tr. 486-487). The court reiterated these two sentences in its
judgment entry.
{¶75} “Cases such as this are remanded for a limited resentencing hearing so that
the prosecution can select which of the merged offenses it wishes the court to enter a
conviction and sentence the defendant on.” Id. at ¶ 50, citing State v. Whitfield, 124 Ohio
St.3d 319,922 N.E.2d 182
, at ¶ 21-22 (finding appellate court impermissibly intruded on state's right to elect by ordering which offense to vacate); Maumee v. Geiger,45 Ohio St.2d 238, 244
,344 N.E.2d 133
(1976). Case No.23 CO 0020
– 18 –
{¶76} For the reasons stated above, Appellant’s convictions are affirmed.
Appellant’s sentence is reversed. This matter is remanded for a resentencing hearing
where the State shall select whether it wishes the defendant to be sentenced on the
trafficking count or the possession count.
Waite, J., concurs.
Robb, J., concurs.
Case No. 23 CO 0020[Cite as State v. Smith,2023-Ohio-4504
.]
For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled. It is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Columbiana County, Ohio, is affirmed as to Appellant’s
convictions. The judgment is reversed as to Appellant’s sentence and the matter is
remanded for resentencing according to law and consistent with this Court’s Opinion.
Costs to be taxed against the Appellee.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.