[Cite as State v. Smith, 2013-Ohio-3330.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
NATHAN L. SMITH : Case No. 13-CA-07
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 12 CR 00510
JUDGMENT: Affirmed
DATE OF JUDGMENT: July 29, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
BRIAN T. WALTZ WILLIAM T. CRAMER
20 South Second Street 470 Olde Worthington Road
4th Floor Suite 200
Newark, OH 43055 Westerville, OH 43082
Licking County, Case No. 13-CA-07 2
Farmer, J.
{¶1} On September 20, 2012, Ohio State Highway Patrol Trooper Michael
Wilson, stopped appellant, Nathan Smith, for a traffic violation. Upon investigation,
Trooper Wilson discovered a bag of crack cocaine.
{¶2} On September 28, 2012, the Licking County Grand Jury indicted appellant
on one count of possessing cocaine in violation of R.C. 2925.11 (A)(C)(4)(d) and one
count of possessing marijuana in violation of R.C. 2925.11(A)(C)(3)(b).
{¶3} A jury trial commenced on January 15, 2013. The jury found appellant
guilty as charged. By judgment entry filed January 16, 2013, the trial court sentenced
appellant to an aggregate term of four years in prison.
{¶4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶5} "APPELLANT'S CONVICTION FOR POSSESSING COCAINE WAS NOT
SUPPORTED BY THE WEIGHT OF EVIDENCE."
II
{¶6} "THE TRIAL COURT VIOLATED DUE PROCESS AND R.C. 2967.28 BY
ATTEMPTING TO DENY THE ADULT PAROLE AUTHORITY THE POWER TO
RECOMMEND A REDUCTION IN THE MANDATORY PERIOD OF POST-RELEASE
CONTROL."
Licking County, Case No. 13-CA-07 3
I
{¶7} Appellant claims his conviction was against the manifest weight of the
evidence as the facts failed to establish that he had possession of the cocaine. We
disagree.
{¶8} On review for manifest weight, a reviewing court is to examine the entire
record, weigh the evidence and all reasonable inferences, consider the credibility of
witnesses 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." State v. Martin, 20 Ohio App.3d 172, 175 (1st
Dist.1983). See also, State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. The
granting of a new trial "should be exercised only in the exceptional case in which the
evidence weighs heavily against the conviction." Martin at 175.
{¶9} Appellant was convicted of possession of cocaine in violation of R.C.
2925.11(A)(C)(4)(d) which states the following:
No person shall knowingly obtain, possess, or use a controlled
substance or a controlled substance analog.
Whoever violates division (A) of this section is guilty of one of the
following:
(4) If the drug involved in the violation is cocaine or a compound,
mixture, preparation, or substance containing cocaine, whoever violates
division (A) of this section is guilty of possession of cocaine. The penalty
for the offense shall be determined as follows:
Licking County, Case No. 13-CA-07 4
(d) If the amount of the drug involved equals or exceeds twenty
grams but is less than twenty-seven grams of cocaine, possession of
cocaine is a felony of the second degree, and the court shall impose as a
mandatory prison term one of the prison terms prescribed for a felony of
the second degree.
{¶10} Appellant argues Trooper Wilson's testimony about cocaine possession
was not credible. We note the weight to be given to the evidence and the credibility of
the witnesses are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d 182
(1990). The trier of fact "has the best opportunity to view the demeanor, attitude, and
credibility of each witness, something that does not translate well on the written page."
Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260.
{¶11} Trooper Wilson testified after conducting a traffic stop and smelling and
observing marijuana, he asked appellant to step out of the vehicle and patted him down.
T. at 51-52, 55-56. Trooper Wilson felt a bulge in a plastic baggy near appellant's groin
area between his buttocks. T. at 56-57. Based upon Trooper Wilson's experience in
over 3000 drug arrests, when he felt the bulge, he believed it to be contraband. T. at
49, 57. Trooper Wilson walked appellant to the cruiser and confronted him about the
drugs. T. at 58. Appellant stated it was "a bag of weed" and agreed to retrieve it
himself. Id. Trooper Wilson uncuffed appellant and a tussle ensued. Id. Trooper
Wilson observed a bag of "suspected crack cocaine" come out of appellant's pants and
fly through the air. T. at 59-60. The bag landed next to the passenger who was sitting
in the grass. T. at 60-61. Trooper Wilson retrieved the bag after placing appellant in
Licking County, Case No. 13-CA-07 5
the cruiser. The contents of the bag tested positive for "cocaine base," also called crack
cocaine. T. at 120-121, 125.
{¶12} Upon review, we find this sole testimony to be sufficient to support the
guilty finding, and no manifest miscarriage of justice.
{¶13} Assignment of Error I is denied.
II
{¶14} Appellant claims the trial court erred in sentencing him to post-release
control which is "not subject to reduction by the Adult Parole Authority" in violation of
R.C. 2967.28(B) and (D)(3). We disagree.
{¶15} R.C. 2967.28(B) states the following in pertinent part:
Each sentence to a prison term for a felony of the first degree, for a
felony of the second degree, for a felony sex offense, or for a felony of the
third degree that is an offense of violence and is not a felony sex offense
shall include a requirement that the offender be subject to a period of post-
release control imposed by the parole board after the offender's release
from imprisonment.***Unless reduced by the parole board pursuant to
division (D) of this section when authorized under that division, a period of
post-release control required by this division for an offender shall be of
one of the following periods:
(2) For a felony of the second degree that is not a felony sex
offense, three years.
Licking County, Case No. 13-CA-07 6
{¶16} R.C. 2967.28(D)(3) states the following in pertinent part:
At any time after a prisoner is released from imprisonment and
during the period of post-release control applicable to the releasee, the
adult parole authority or, pursuant to an agreement under section 2967.29
of the Revised Code, the court may review the releasee's behavior under
the post-release control sanctions imposed upon the releasee under this
section. The authority or court may determine, based upon the review and
in accordance with the standards established under division (E) of this
section, that a more restrictive or a less restrictive sanction is appropriate
and may impose a different sanction. The authority also may recommend
that the parole board or court increase or reduce the duration of the period
of post-release control imposed by the court. If the authority recommends
that the board or court increase the duration of post-release control, the
board or court shall review the releasee's behavior and may increase the
duration of the period of post-release control imposed by the court up to
eight years. If the authority recommends that the board or court reduce
the duration of control for an offense described in division (B) or (C) of this
section, the board or court shall review the releasee's behavior and may
reduce the duration of the period of control imposed by the court.
{¶17} Appellant argues R.C. 2967.28(D)(3) authorizes the Adult Parole Authority
to review the behavior of any releasee and make a recommendation to increase or
Licking County, Case No. 13-CA-07 7
reduce the duration of post-release control if warranted; therefore the trial court erred in
imposing post-release control "not subject to reduction by the Adult Parole Authority."
{¶18} Appellant was convicted of a felony of the second degree which requires
mandatory post-release control for three years. R.C. 2967.28(B)(2).
{¶19} Upon review, we find the trial court did not err in stating appellant's post-
release control was not subject to modification given the statutory sentencing scheme.
{¶20} Assignment of Error II is denied.
{¶21} The judgment of the Court of Common Pleas of Licking County, Ohio is
hereby affirmed.
By Farmer, J.
Gwin, P.J. and
Baldwin, J. concur.
_______________________________
Hon. Sheila G. Farmer
_______________________________
Hon. W. Scott Gwin
_______________________________
Hon. Craig R. Baldwin
SGF/sg 717
[Cite as State v. Smith, 2013-Ohio-3330.]
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
NATHAN L. SMITH :
:
Defendant-Appellant : CASE NO. 13-CA-07
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Licking County, Ohio is affirmed. Costs to
appellant.
_______________________________
Hon. Sheila G. Farmer
_______________________________
Hon. W. Scott Gwin
_______________________________
Hon. Craig R. Baldwin