[Cite as State v. Jones, 2011-Ohio-1108.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No: 10CA3366
:
v. :
: DECISION AND
TROY JONES, : JUDGMENT ENTRY
:
Defendant-Appellant. : File-stamped date: 3-04-11
APPEARANCES:
Gene Meadows, Portsmouth, Ohio, for Appellant.
Mark E. Kuhn, Scioto County Prosecuting Attorney, and Pat Apel, Scioto County
Assistant Prosecuting Attorney, Portsmouth, Ohio, for Appellee.
Kline, J.:
{¶1} Troy Jones appeals his convictions for trafficking in heroin and crack
cocaine. On appeal, Jones contends that his convictions are against the manifest
weight of the evidence because his co-defendant was not a credible witness. Because
we find that the jury was free to credit the testimony of Jones’s co-defendant, we
disagree. Jones next contends that the trial court erred when it admitted testimony
related to the nature of the drug trade. Because this evidence was relevant and not
unfairly prejudicial, we disagree. Finally, Jones contends that the trial court committed
plain error by failing to specifically caution the jury against the testimony of his co-
defendant. Because we find that (1) the State corroborated the co-defendant’s
testimony, (2) the State made the jury aware of the co-defendant’s interest in the
Scioto App. No. 10CA3366 2
present prosecution, and (3) the trial court properly instructed the jury on determining
the credibility of the witnesses, we disagree. Accordingly, we affirm the judgment of the
trial court.
I.
{¶2} On December 11, 2009, Trooper Nick Lewis of the Ohio State Highway
Patrol received a report that the occupants of a Dodge minivan may have been involved
in acts of vandalism and theft.
{¶3} Approximately a half-hour after receiving this information, Lewis saw a
purple minivan matching the given description at a stoplight. Lewis observed that only
one of the van’s headlights was working. Lewis followed and stopped this van.
{¶4} The van contained two occupants, driver Joseph Runyon and passenger
Jones. During the stop, Lewis noticed the smell of marijuana emanating from the van,
and he also observed an open container present in the van. After backup arrived, Lewis
removed the occupants from the van and searched them. Jones admitted that he
possessed marijuana. During the search, Lewis also found some small “packaging
envelopes” on Jones, which Lewis testified were often used to package cocaine and
heroin for sale to individual users.
{¶5} Lewis, along with another trooper, searched the van but found no
additional incriminating evidence. During the search of the van, an officer placed both
Runyon and Jones in one of the police cruisers. Lewis then took Jones to the nearest
Ohio State Highway Patrol post in order to issue a citation for possession of marijuana.
Meanwhile, Lewis had released Runyon, and Runyon followed Lewis and Jones to the
Highway Patrol post in order to give Jones a ride after he received his citation. While
Scioto App. No. 10CA3366 3
doing paperwork for the citation, Lewis listened to the tape recording of a conversation
between Jones and Runyon that took place in the police cruiser while the police had
searched the van. In this conversation, Runyon and Jones made statements that
indicated they possessed crack cocaine and heroin.
{¶6} When Lewis confronted Runyon, Runyon admitted that whilst in the back
of a police cruiser, he had helped Jones remove some heroin that Jones had concealed
in his shoe. Runyon then took this heroin and hid it in the van. Also, Runyon admitted
he had searched Jones to remove a separate stash of crack cocaine but did not find it.
Runyon admitted that he was driving Jones to Columbus so that Jones could get a
supply of drugs. Runyon also stated that he had received an oxycontin pill as
compensation for driving. After Lewis confronted Runyon, Runyon led Lewis to the
heroin he had removed from Jones and placed in the van’s trash receptacle. A later
search of the rear of Lewis’s cruiser revealed the stash of crack cocaine had fallen to
the floor of the vehicle.
{¶7} An expert witness for the State testified that the recovered heroin
weighed 11.96 grams and the recovered crack cocaine weighed 11.43 grams. Another
witness for the State, Detective Todd Bryant, testified on how the drug trade functioned.
{¶8} On January 21, 2010, the Scioto County Grand Jury returned a five-
count indictment against Jones. The indictment accused Jones of 1) trafficking in crack
cocaine, in violation of R.C. 2925.03(A)(2) & (C)(4)(e); 2) possession of crack cocaine,
in violation of R.C. 2925.11(A) & (C)(4)(d); 3) trafficking in heroin, in violation of R.C.
2925.03(A)(2) & (C)(6)(e); 4) possession of heroin, in violation of R.C. 2925.11(A)(2) &
(C)(6)(d); and 5) tampering with evidence, in violation of R.C. 2921.12(A)(1). A jury
Scioto App. No. 10CA3366 4
returned guilty verdicts on all five counts. The court merged each possession conviction
with its corresponding trafficking conviction. The court then sentenced Jones to seven
years incarceration for each trafficking conviction. The court also sentenced Jones to
twelve-months incarceration for the tampering with evidence conviction. The court
ordered Jones to serve all sentences consecutively for a total aggregate sentence of
fifteen years.
{¶9} Jones appeals and raises the following assignments of error: I. “The
verdict and conviction is against the manifest weight of the evidence presented at trial
because the Plaintiff-Appellee failed to prove the Defendant-Appellant had possession
of the illegal substances.” II. “The trial court abused its discretion and erred to the
prejudice of Defendant-Appellant by allowing prejudicial testimony in violation of Evid.R.
403(A).” III. “The trial court committed plain error when it failed to properly charge the
jury on the weight to be given to the testimony of the Co-Defendant.”
II.
{¶10} Jones first contends that his drug convictions are against the manifest
weight of the evidence. Specifically, Jones contends that, other than the co-defendant’s
testimony, no evidence showed that he possessed the drugs. And the co-defendant
was not a credible witness.
{¶11} “To be guilty of trafficking under R.C. 2925.03(A)(2), the offender must
knowingly prepare for shipment, ship, transport, deliver, prepare for distribution, or
distribute a controlled substance, knowing, or having reason to know, that the
substance is intended for sale. In order to ship a controlled substance, deliver it,
distribute it, or prepare it for shipping, etc., the offender must ‘hav[e] control over’ it.
Scioto App. No. 10CA3366 5
R.C. 2925.01(K) (defining ‘possession’).” State v. Cabrales, 118 Ohio St.3d 54, 2008-
Ohio-1625, at ¶30.
{¶12} Although Jones focuses on the “possession” element, the trial court
merged both possession offenses into the two trafficking offenses. Thus, based on the
above analysis in Cabrales, we will focus on the “control” element of the two trafficking
offenses. That is, the State had to prove beyond a reasonable doubt that Jones had
control over the crack cocaine and heroin.
{¶13} When determining whether a criminal conviction is against the manifest
weight of the evidence, we “will not reverse a conviction where there is substantial
evidence upon which the [trier of fact] could reasonably conclude that all the elements
of an offense have been proven beyond a reasonable doubt.” State v. Eskridge (1988),
38 Ohio St.3d 56, at paragraph two of the syllabus. See, also, State v. Smith, Pickaway
App. No. 06CA7, 2007-Ohio-502, at ¶41. We “must review the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of the witnesses, and
determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its
way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial granted.” Smith at ¶41, citing State v. Garrow (1995), 103
Ohio App.3d 368, 370-371; State v. Martin (1983), 20 Ohio App.3d 172, 175. But, “[o]n
the trial of a case, * * * the weight to be given the evidence and the credibility of the
witnesses are primarily for the trier of the facts.” State v. DeHass (1967), 10 Ohio St.2d
230, at paragraph one of the syllabus.
{¶14} Jones contends that “[t]here was no testimony, other than that of the
Co-Defendant, that the Defendant-Appellant was conscious of the presence of the
Scioto App. No. 10CA3366 6
object or that the Defendant-Appellant was in the vicinity of the contraband.” Jones’s
Brief at 7. In other words, Jones contends that the jury could not have credited
Runyon’s testimony that Jones possessed (controlled) the drugs at issue.1 Aside from
pointing to Runyon’s status as a co-defendant, Jones provides no particular explanation
for why Runyon’s testimony was not creditable.
{¶15} Having reviewed the transcript, we do not find that this is an exceptional
case where the jury’s crediting of Runyon’s testimony resulted in a manifest miscarriage
of justice. See, e.g., State v. Lanier, Mahoning App. No. 09 MA 97, 2010-Ohio-6382, at
¶73-97 (rejecting a manifest weight challenge to a co-defendant’s testimony both on the
basis of motive and alleged inconsistencies); State v. Ambartsoumov, Franklin App. No.
09AP-1054, 2010-Ohio-6293, at ¶78-87 (rejecting a manifest weight challenge to a co-
defendant’s testimony on the basis of alleged inconsistencies); State v. Cooper,
Cuyahoga App. No. 92911, 2010-Ohio-4106, at ¶15-19 (same as Lanier); State v.
Pettway, Cuyahoga App. No. 91716, 2009-Ohio-4544, at ¶62 (“The jury weighed [the
witness’s] credibility and it, as the fact finder, was free to believe all, none, or some of
what he said during trial, regardless of his status as a codefendant or any
inconsistencies between his statement to the police and what he testified to at trial.”). In
short, Jones merely points to Runyon’s potential motive to lie. The record does indicate
that Runyon initially gave an inconsistent account to the police. The jury, however, was
made aware of the issue and was free to believe all, none, or some of what Runyon
said during trial. See id. at ¶62. In addition, the recording of Jones and Runyon’s
1
We note that Jones concludes his argument section with a statement that his “conviction should be
reversed and the case dismissed based upon the insufficiency of the evidence.” However, Jones’s
assignment of error only implicates manifest weight review, and Jones concedes that there was testimony
at trial that established his possession (control) of the heroin and crack cocaine. Accordingly, we do not
review Jones’s conviction for the sufficiency of the evidence.
Scioto App. No. 10CA3366 7
conversation in the back of the police vehicle tended to indicate that Jones had physical
possession (control) of the drugs at issue. Thus, there was evidence in the record that
corroborated co-defendant Runyon’s trial testimony.
{¶16} In conclusion, we find that there is substantial evidence in the record
upon which the trier of fact could reasonably conclude that all the elements of the
offenses of trafficking in crack cocaine and trafficking in heroin have been proven
beyond a reasonable doubt.
{¶17} Accordingly, we overrule Jones’s first assignment of error.
III.
{¶18} In his second assignment of error, Jones contends that the trial court
erred when it admitted the testimony of Detective Todd Bryant.
{¶19} “‘[T]he admission or exclusion of relevant evidence rests within the
sound discretion of the trial court.’” State v. Ahmed, 103 Ohio St.3d 27, 2004-Ohio-
4190, at ¶79, quoting State v. Sage (1987), 31 Ohio St.3d 173, paragraph two of the
syllabus. “[T]he term ‘abuse of discretion’ connotes more than an error of law; it implies
that the court acted unreasonably, arbitrarily or unconscionably.” Rigby v. Lake Cty.
(1991), 58 Ohio St.3d 269, 271, citing Blakemore v. Blakemore (1983), 5 Ohio St.3d
217, 219.
{¶20} Here, Jones contends that that the admission of Detective Bryant’s
testimony violated Evid.R. 403(A). This provision prohibits the admission of evidence “if
its probative value is substantially outweighed by the danger of unfair prejudice, of
confusion of the issues, or of misleading the jury.” Evid.R. 403(A). Bryant’s testimony
concerned the nature of the drug trade. Bryant testified as to how addicts typically
Scioto App. No. 10CA3366 8
smoke crack cocaine, the typical quantities that users purchased of crack cocaine and
heroin, the street value of both heroin and crack cocaine, and finally some of the slang
words associated with the drug trade.
{¶21} Jones contends that this testimony “was highly prejudicial and did not
serve any other purpose than to inflame the Jury and prejudice the Jury towards the
Defendant.” We disagree. Among other crimes, the State was prosecuting Jones for
trafficking in heroin and crack cocaine in violation of R.C. 2925.03(A)(2). Among other
elements, this statute requires the State to prove that Jones knew or had reasonable
cause to believe “that the controlled substance is intended for sale or resale by the
offender or another person.” R.C. 2925.03(A)(2).
{¶22} Bryant’s testimony tended to indicate that the quantities that Jones
possessed, more than ten grams, were greater than the quantity of either crack cocaine
or heroin that a user might carry for personal use. This allowed the jury to make the
reasonable inference that Jones intended to sell the heroin and crack cocaine to
another person. Bryant’s other testimony, relating to how users would ingest either
crack cocaine or heroin, indicated that Jones’s possession may have been inconsistent
with personal use.
{¶23} Several times in his brief, Jones contends that the testimony of Bryant
was unfairly prejudicial. But Jones provides no basis for considering this evidence
“unfairly prejudicial.” “Unfairly prejudicial evidence ‘is that quality of evidence which
might result in an improper basis for a jury decision. Consequently, if the evidence
arouses the jury’s emotional sympathies, evokes a sense of horror, or appeals to an
instinct to punish, the evidence may be unfairly prejudicial. Usually, although not
Scioto App. No. 10CA3366 9
always, unfairly prejudicial evidence appeals to the jury’s emotions rather than
intellect.’” State v. Boyd, Athens App. No. 09CA14, 2010-Ohio-1605, at ¶28, quoting
Oberlin v. Akron Gen. Med. Ctr., 91 Ohio St.3d 169, 172, 2001-Ohio-248 (other citation
omitted). Jones provides no explanation for why this evidence might result in an
improper basis for a jury decision, and no such explanation is apparent from the record.
We cannot say that the trial court abused its discretion in admitting this evidence.
{¶24} Accordingly, we overrule Jones’s second assignment of error.
IV.
{¶25} In his third assignment of error, Jones contends that the trial court
committed plain error when it failed to specifically charge the jury regarding the weight
to be given to the testimony of a co-defendant.
{¶26} “Generally, a trial court has broad discretion in deciding how to fashion
jury instructions. A trial court must not, however, fail to ‘fully and completely give the
jury all instructions which are relevant and necessary for the jury to weigh the evidence
and discharge its duty as the fact finder.’ State v. Comen (1990), 50 Ohio St.3d 206,
[at] paragraph two of the syllabus. Additionally, a trial court may not omit a requested
instruction, if such instruction is ‘a correct, pertinent statement of the law and [is]
appropriate to the facts * * *.’ State v. Lessin[,] 67 Ohio St.3d 487, 493, [1993-Ohio-52]
(quoting State v. Nelson (1973), 36 Ohio St.2d 79, [at] paragraph one of the syllabus).”
Smith v. Redecker, Athens App. No. 08CA33, 2010-Ohio-505, at ¶51.
{¶27} The court in this case gave a fairly standard instruction on how the jury
ought to consider the credibility of the witnesses. Jones does not contend that this
instruction was wrong; rather he contends that it was insufficient. Jones contends that
Scioto App. No. 10CA3366 10
the trial court was obliged to give a specific instruction regarding the weight of a co-
defendant or accomplice’s testimony because of the importance of Runyon’s testimony
to the State’s case.
{¶28} Jones made no request for this instruction before the trial court.
Accordingly, Jones bears the heavy burden of demonstrating that the trial court
committed plain error. See State v. Judy, Ross App. No. 08CA3013, 2008-Ohio-5551,
at ¶30, citing State v. Wamsley, 117 Ohio St.3d 388, 2008-Ohio-1195, at ¶1. “Inherent
in the [plain-error] rule are three limits placed on reviewing courts for correcting plain
error.” State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, at ¶15. “‘First, there must
be an error, i.e., a deviation from the legal rule. * * * Second, the error must be plain. To
be ‘plain’ within the meaning of Crim.R. 52(B), an error must be an ‘obvious’ defect in
the trial proceedings. * * * Third, the error must have affected ‘substantial rights.’ We
have interpreted this aspect of the rule to mean that the trial court’s error must have
affected the outcome of the trial.’” Id. at ¶16, quoting State v. Barnes, 94 Ohio St.3d 21,
27, 2002-Ohio-68 (omissions in original). We will notice plain error “only to prevent a
manifest miscarriage of justice.” State v. Long (1978), 53 Ohio St.2d 91, at paragraph
three of syllabus. And “[r]eversal is warranted only if the outcome of the trial clearly
would have been different absent the error.” State v. Hill, 92 Ohio St.3d 191, 203, 2001-
Ohio-141, citing Long at paragraph two of the syllabus.
{¶29} Notwithstanding Jones’s heavy burden to show plain error, his brief fails
to identify what the proposed instruction would be. Presumably, Jones refers to an
instruction like the following: “The testimony of an accomplice does not become
inadmissible because of his complicity, moral turpitude, or self-interest, but the admitted
Scioto App. No. 10CA3366 11
or claimed complicity of a witness may affect his credibility and make his testimony
subject to grave suspicion, and require that it be weighed with great caution.” R.C.
2923.03(D). It is not at all clear that this statute actually applies in the present case
because it is unclear whether Runyon was indicted as an accomplice. See State v.
Wickline (1990), 50 Ohio St.3d 114, 118 (“Certainly, a person who is guilty of complicity
must first be found guilty of complicity by either a judge or a jury. Obviously, the first
step in finding a person guilty of an offense is by indicting that person. So, at the very
least, an ‘accomplice’ must be a person indicted for the crime of complicity.”); but, see,
State v. Church (Apr. 30, 1999), Clark App. No. 98 CA 36 (finding that the evidence in
the record did not support a finding that a witness was an accomplice and therefore the
trial court correctly refused to give the instruction); State v. Schlupe (Apr. 10, 1991),
Summit App. No. 14645 (finding that evidence in the record indicated that two witnesses
were accomplices and the instruction should have been given); State v. Williams (July
27, 1988), Hamilton App. No. C-870384 (“[I]t was incumbent upon the court to instruct
the jury in compliance with R.C. 2923.03(D) if, upon the evidence adduced at trial,
reasonable minds could have concluded that [the witness] was an accomplice as
defined under R.C. 2923.03(A).”). However, even if we presume the statute applies,
Jones nonetheless fails to show plain error.
{¶30} “‘Ohio courts generally look to three factors to determine whether a trial
court’s failure to give the accomplice instruction constitutes plain error: (1) whether the
accomplice’s testimony was corroborated by other evidence introduced at trial; (2)
whether the jury was aware from the accomplice’s testimony that he benefited from
agreeing to testify against the defendant; and/or (3) whether the jury was instructed
Scioto App. No. 10CA3366 12
generally regarding its duty to evaluate the credibility of the witnesses and its province
to determine what testimony is worthy of belief.’” State v. Bentley, Portage App. No.
2004-P-0053, 2005-Ohio-4648, at ¶58, quoting State v. Woodson, Franklin App. No.
03AP-736, 2004-Ohio-5713, at ¶18.
{¶31} Here, we have little difficulty in finding that any error on the part of the
trial court was not plain error. First, the recording of Jones and Runyon’s conversation
in the back of the trooper’s vehicle corroborated Runyon’s account. The general tenor
of the conversation indicated that Jones had physical possession (control) of the crack
cocaine and heroin, at least at that time. Second, the jury was made aware of Runyon’s
plea agreement for possession of heroin and crack cocaine. Trial Transcript at 119.
Third, the trial court instructed the jury on its duty to determine the credibility of the
witnesses. Id. at 178. Under these circumstances, we find that Jones has failed to
carry his burden to demonstrate that the trial court committed plain error.
{¶32} Accordingly, we overrule Jones’s third assignment of error.
V.
{¶33} Having overruled all of Jones’s assignments of error, we affirm the
judgment of the trial court.
JUDGMENT AFFIRMED.
Scioto App. No. 10CA3366 13
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the costs
herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Scioto County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure. Exceptions.
Abele, J.: Concurs in Judgment and Opinion.
Harsha, P.J.: Concurs in Judgment Only.
For the Court
BY:_____________________________
Roger L. Kline, Judge