[Cite as State v. Thompson, 2011-Ohio-3631.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
CRAWFORD COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 3-10-23
v.
PATRICK A. THOMPSON, OPINION
DEFENDANT-APPELLANT.
Appeal from Crawford County Common Pleas Court
Trial Court No. 10-CR-0041
Judgment Affirmed
Date of Decision: July 25, 2011
APPEARANCES:
Shane M. Leuthold for Appellant
Clifford J. Murphy for Appellee
ROGERS, P.J.
Case No. 3-10-23
{¶1} Defendant-Appellant, Patrick Thompson (“Thompson” or
“Defendant”) appeals the judgment of the Court of Common Pleas of Crawford
County, convicting him of one count of trafficking in drugs. On appeal,
Thompson argues that the conviction was against the manifest weight of the
evidence; and, that the trial court erred in sentencing him to the maximum period
of incarceration authorized by statute. Finding that the evidence supported the
jury’s verdict and that the trial court did not abuse its discretion in imposing
Thompson’s sentence, we affirm the decision of the trial court.
{¶2} On April 9, 2010, a Crawford County Grand Jury indicted Thompson
on two counts of trafficking in drugs in violation of R.C. 2925.03(C)(6)(a),
felonies of the fifth degree. The two charges stemmed from an investigation by
METRICH, a ten-county regional task force, that conducted two controlled buys
from Thompson through the use of a confidential informant (“CI”). On April 19,
2010, Thompson appeared at arraignment and entered a plea of not guilty. On
September 16, 2010, the matter proceeded to a jury trial. The jury rendered a
verdict of not guilty on count I and guilty on count II. On October 27, 2010, the
trial court sentenced Thompson to twelve months in prison.
{¶3} At trial, the State presented three witnesses, including: Detective Chris
Hydinger, a deputy sheriff with the Crawford County Sheriff’s Office; Captain Joe
Greathouse of the Bucyrus Police Department; and Anita Hinton (“the CI”), the
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confidential informant. The trial court admitted the State’s two audio recordings
of the controlled buys recorded by a wire worn by the CI, two bags of heroin, the
corresponding lab reports testing the substance from each bag, and the joint
stipulation as to the laboratory results of the substance of each bag. The defense
presented Appellant Thompson. The State’s case in chief adduced the following
relevant evidence.
{¶4} Detective Heydinger testified that Thompson has been under
investigation by the Crawford County Sheriff’s Office, the Galion Police
Department, and the Ohio State Highway Patrol since 2008 for his involvement
with narcotics. On August 10, 2009, Eric Bohach, a detective with the Galion
Police Department, contacted him stating that the CI had a phone conversation
with Thompson whereby Thompson stated he would sell the CI heroin. On the
evening of August 10, 2009, the CI and her vehicle were searched for contraband
and weapons, the CI was provided with $70.00, and was fitted with an audio
transmitter and digital recorder which allowed the CI and Detective Bohach to
communicate as well as record the transaction. Detective Heydinger testified that,
“at some point in time . . . there was a recovery of heroin” (Trial Tr., p. 67), and
that the CI gave the sheriff’s office a plastic bag, which was later identified to
contain heroin.
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{¶5} On cross-examination, Detective Heydinger testified that the CI has a
criminal history, but that she is not receiving any preferential treatment for her
assistance in this case, and that he did not know whether the CI used heroin with
Thompson. He further testified that he did not actually see the narcotics purchase
on August 10, 2009.
{¶6} Captain Greathouse testified that Detective Heydinger contacted him
informing him of an ongoing investigation of Thompson for drug trafficking, and
that a controlled buy was arranged between a CI and Thompson on August 17,
2009. Captain Greathouse testified that on August 17, 2009, the CI’s vehicle and
person were searched for contraband, the CI was given $60.00 to purchase heroin
and was fitted with an audio recording device, and that at about eight o’clock
P.M., he rode with the CI to Thompson’s house. He explained that it was still
daylight by the time he and the CI arrived to Thompson’s house; that when they
pulled into the driveway, the CI honked her horn, parked the car, and exited the
vehicle; that he remained in the vehicle but was able to see the back door; that the
CI knocked on the back door; and, that Thompson exited the residence. He
continued to testify that he observed the CI and Thompson have a conversation;
that the CI handed money to Thompson; that Thompson handed something to the
CI; that the CI walked back to the vehicle; and, that when she reentered the
vehicle, she handed Captain Greathouse two balls of foil that contained heroin.
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{¶7} The CI testified that on August 10, 2009, she gave Thompson money;
that Thompson gave her heroin; and, that she turned the heroin over to the police.
She explained that on August 17, 2009, she went to Thompson’s house with
Detective Greathouse; that she paid Thompson $70.00; and, that Thompson gave
her the drugs. She stated that she bought drugs from Thompson, but that she never
used drugs with him and never threatened him. On cross-examination, the CI
testified that she would “do what [she] need[ed] to do in order to get somebody to
sell [her] drugs.” Trial Tr., p. 131. The State then rested its case-in-chief.
{¶8} Thompson testified in his defense. He testified that he was
acquaintanced with the CI and her husband for approximately two years prior to
the trial, and that he, the CI, and her husband would all use heroin together.
Thompson testified that the CI made several sexual advances towards him once
her husband had “passed out.” Trial Tr., p. 143. Thompson testified that on
August, 10, 2009, the CI called Thompson about five or six times asking
Thompson to sell her drugs, and that he refused, but that the CI continued to call
him, offered to have sex with him, and said that she would leave her husband and
the two of them would enter rehabilitation together. Thompson testified that he
gave in and agreed to make a phone call for her. Thompson said that, on August
10, 2009, he had someone come over with drugs for the CI, that the CI came over,
gave him $70.00, that he gave the $70.00 to the man who brought the drugs, but
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that he had to pay $5.00 extra as the CI did not have enough money. Thompson
testified that he did not feel comfortable selling drugs to the CI because he does
not engage in selling drugs. Lastly, Thompson testified that he never would have
sold drugs to the CI if not for her phone calls and promises.
{¶9} On cross-examination, Thompson admitted that he possessed and sold
the CI heroin on August 10 and 17, 2009, but testified that he was entrapped. The
defense rested its case and the matter was submitted to the jury. The jury
convicted Thompson on the second count of trafficking in drugs for the sale on
August 17, 2009, but found him not guilty on the first count of trafficking in drugs
for the sale on August 10, 2009. The trial court sentenced Appellant to twelve
months in prison. It is from the conviction and the sentence that Appellant brings
his appeal, assigning the following errors for our review.
Assignment of Error No. I
THE CONVICTION OF APPELLANT, PATRICK
THOMPSON, WAS AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE.
Assignment of Error No. II
THE TRIAL COURT ERRED IN ITS DECISION TO
SENTENCE PATRICK A. THOMPSON TO THE MAXIMUM
SENTENCE WHEN APPLYING THE FELONY
SENTENCING GUIDELINES.
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Assignment of Error No. I
{¶10} In his first assignment of error, Thompson alleges that the conviction
was against the manifest weight of the evidence. Particularly, Thompson asserts
that because the jury found him not guilty on count I due to entrapment, the jury
also should have found him not guilty on count II, as the fact pattern was the same
for both counts. We disagree.
{¶11} The State contends that there is no evidence that the jury found
Thompson not guilty of count I as the result of entrapment. Specifically, the State
cites the absence of any findings regarding entrapment in the verdict forms.
Rather, the State contends that Detective Greathouse’s testimony, the recovery of
the heroin, and the recorded dialogue were sufficient to establish Thompson’s guilt
on August 17, 2009. We agree.
{¶12} When an appellate court analyzes a conviction under the manifest
weight standard it must review the entire record, weigh all of the evidence and all
of the reasonable inferences, consider the credibility of the witnesses, and
determine whether, in resolving conflicts in the evidence, the fact finder clearly
lost its way and created such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered. State v. Thompkins, 78 Ohio St.3d 380,
387, 1997-Ohio-52, superseded by constitutional amendment on other grounds as
stated by State v. Smith, 80 Ohio St.3d 89, 1997-Ohio-355, quoting State v. Martin
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(1983), 20 Ohio App.3d 172, 175. Only in exceptional cases, where the evidence
“weighs heavily against the conviction,” should an appellate court overturn the
trial court’s judgment. Id.
{¶13} In this case, the manifest weight of the evidence supports the
conviction. The only evidence that does not support the conviction is the
testimony of the Appellant himself. The trier of fact is in the best position to take
into account inconsistencies, along with the witnesses’ manner and demeanor, and
determine whether the witnesses’ testimony is credible. Hickerson v. Hickerson,
3d Dist. No. 5-10-08, 2010-Ohio-4070, ¶23, citing Seasons Coal Co. v. Cleveland
(1984), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273. The trier of fact is free to believe
or disbelieve all or any of the testimony. State v. Jackson, 10th Dist. No. 01AP-
973, 2002-Ohio-1257, ¶1. Although an appellate court must act as a “thirteenth
juror” when considering whether the manifest weight of the evidence requires
reversal, it must give great deference to the fact finder’s determination of the
witnesses’ credibility. State v. Covington, 10th Dist. No. 02AP-245, 2002-Ohio-
7037, ¶28. The audio recordings, Detective Greathouse’s testimony, and the CI’s
testimony all support the jury’s conviction. Therefore, we cannot conclude that
the conviction was against the manifest weight of the evidence. Accordingly, we
overrule Thompson’s first assignment of error.
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Assignment of Error No. II
{¶14} In his second assignment of error, Thompson argues that the trial
court erred in imposing the maximum term of incarceration allowed for a felony of
the fifth degree. Specifically, Thompson asserts that the trial court arrived at the
sentence in derogation of R.C. 2929.14, as it found that Thompson did not commit
the worst form of the offense, and as Thompson does not pose the greatest
likelihood of recidivism. Rather, Thompson claims that the trial court imposed the
maximum sentence because it believed that trafficking in heroin should be
punished more severely than a fifth degree felony.
{¶15} The State argues that the trial court did not commit error in its
sentencing as Ohio law affords full discretion to impose prison terms within the
appropriate felony range. Because the trial court considered the purposes and
principles of sentencing, Thompson’s prior record, Thompson’s failure to respond
favorably to community control sanctions, and Thompson’s likelihood of
recidivism, Appellant’s second assignment of error should be overruled. We
agree.
{¶16} An appellate court must conduct a meaningful review of the trial
court’s sentencing decision. State v. Daughenbaugh, 3d Dist. No. 16-07-07, 2007-
Ohio-5774, ¶8, citing State v. Carter, 11th Dist. No. 2003-P-0007, 2004-Ohio-
1181. A meaningful review means “that an appellate court hearing an appeal of a
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felony sentence may modify or vacate the sentence and remand the matter to the
trial court for re-sentencing if the court clearly and convincingly finds that the
record does not support the sentence or that the sentence is otherwise contrary to
law.”1 Daughenbaugh, 2007-Ohio-5774, at ¶8, citing Carter, 2004-Ohio-1181, at
¶44; R.C. 2953.08(G).
{¶17} The trial court has full discretion to sentence an offender to any term
of imprisonment within the statutory range without a requirement that it make
findings or give reasons for imposing the maximum sentence, more than the
minimum sentence, or ordering sentences to be served consecutively. State v.
Foster, 109 Ohio St.3d 1, 2006-Ohio-856, at paragraph seven of the syllabus.
{¶18} When sentencing an offender, the trial court must consider the
factors set forth under R.C. 2929.12(B), (C), (D), and (E) relating to the
seriousness of the offender’s conduct and the likelihood of the offender’s
recidivism. R.C. 2929.12(A); see also State v. Ramos, 3d Dist. No. 4-06-24, 2007-
Ohio-767, ¶25. However, the trial court is not required to make specific findings
of its consideration of the factors. State v. Kincade, 3d Dist. No. 16-09-20, 2010-
Ohio-1497, ¶8, citing State v. Arnett, 88 Ohio St.3d 208, 2000-Ohio-302. Nor is
the trial court required to state on the record that it has considered the statutory
1
While we use the clearly and convincingly contrary to law standard of review, we note that our decision in
this case would be identical if we had used an abuse of discretion standard of review.
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criteria or even discussed them. State v. Foust, 3d Dist. No. 3-07-11, 2007-Ohio-
5767, ¶27.
{¶19} Trafficking in drugs in violation of R.C. 2925.03(C)(6)(a) is a felony
of the fifth degree. R.C. 2929.14(A)(5) states that, “[f]or a felony of the fifth
degree, the prison term shall be six, seven, eight, nine, ten, eleven, or twelve
months.” In the instant case, the trial court sentenced Thompson to a twelve-
month prison term upon consideration of the seriousness of his conduct and his
likelihood of recidivism. Therefore, we find that the trial court’s imposition of the
maximum sentence prescribed by statute is not clearly and convincingly contrary
to law. Accordingly, we overrule Thompson’s second assignment of error.
{¶20} Having found no error prejudicial to the appellant herein, in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW and WILLAMOWSKI, J.J., concur.
/jlr
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