[Cite as State v. Thornton, 2014-Ohio-2773.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100592
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DARRELL THORNTON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-13-575107-A
BEFORE: E.T. Gallagher, J., Rocco, P.J., and Kilbane, J.
RELEASED AND JOURNALIZED: June 26, 2014
ATTORNEY FOR APPELLANT
Allison S. Breneman
1220 West 6th Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Ryan Bokoch
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:
{¶1} Defendant-appellant, Darrell Thornton (“Thornton”), appeals his drug
trafficking and permitting drug abuse convictions. We find no merit to the appeal and
affirm.
{¶2} Thornton was charged with two counts of drug trafficking in violation of
R.C. 2925.03(A)(1) and (A)(2), one count of drug possession in violation of R.C.
2925.11(A), and one count of permitting drug abuse in violation of R.C. 2925.13(A).
The trafficking and permitting drug abuse charges each included a juvenile specification,
alleging that the offenses were committed within 100 feet or within view of a juvenile.
The case proceeded to a jury trial.
{¶3} One of the prospective jurors, Mr. Rodriguez (“Rodriguez”), was a police
officer with the Cuyahoga Metropolitan Housing Authority (“CMHA”). During voir
dire, he stated that he knew two CMHA officers who were expected to testify for the state
and that he would be biased. He also admitted that he would give “an automatic stamp
of credibility to them” as he has trained and worked with them. Rodriguez was
ultimately excused for cause.
{¶4} Three witnesses testified for the state. Detective Michael Duller (“Duller”),
a detective in the Cleveland Police Department vice unit, testified that on June 5, 2013, he
conducted a “controlled buy” with a confidential reliable informant (“CRI”). He
considered the informant reliable because he has consistently provided accurate
information to police for over nine years. On the evening of June 5th, Duller gave the
CRI a $20 bill that had been marked and photocopied with its serial number. The CRI
also wore a wire that could transmit any conversation he had with the suspects to Duller’s
radio.
{¶5} Duller parked his unmarked vehicle across the street from a Dairy Mart
located at the corner of West 89th Street and Detroit Avenue in Cleveland. Duller
observed two men exit a white Oldsmobile parked at the Dairy Mart and approach the
CRI. He recognized one of the men as Walter Cockrell (“Cockrell”) from prior arrests.
The other man was later identified as Thornton. A few minutes later, another group of
males entered the parking lot, and a juvenile, who was later identified as G.J., got into the
back seat of the white Oldsmobile with the CRI. Thornton sat in the driver’s seat and
Cockrell sat in the front passenger seat.
{¶6} When the sale was complete, the CRI gave Duller a verbal signal and G.J.
then exited the vehicle. Duller, who continued to listen to the conversation, heard
someone demanding a piece of the crack as “commission” for the sale. Duller explained
that drug dealers in this area often use “middle men.” Middle men
are usually addicted to narcotics and are seeking narcotics but may not have
the money to purchase them on their own behalf so they will negotiate deals
for other addicts. And, as a result of that, they will then take a portion of
the proceeds of that purchase for their own behalf, and that was the case.
Tr. 368.
After reaching an agreement on the commission, the CRI exited the vehicle. The white
Oldsmobile, driven by Thornton, proceeded down Detroit Avenue, where takedown units
arrested him. Meanwhile, other takedown units were directed to arrest G.J., and
recovered from him the marked “buy” money.
{¶7} Police searched Thornton, Cockrell, and the vehicle at the time of Thornton’s
arrest and did not find any cocaine or other contraband. Duller testified that he has
witnessed drug trafficking suspects swallow small pieces of crack cocaine in an effort to
conceal them. The pieces given as “commission” may be as small as a crumb. Duller
suggested that Thornton may have swallowed the cocaine to hide it from police.
{¶8} Detective Clinton Ovalle (“Ovalle”), of CMHA, and Lieutenant Lou Pipoly
(“Pipoly”), who head the Cleveland Police Department First District vice unit, also
participated in the “controlled buy.” They corroborated Duller’s testimony. Pipoly, who
initiated the stop of Thornton’s vehicle, testified that Thornton cooperated with police.
{¶9} The jury found Thornton guilty of one count of drug trafficking, in violation
of R.C. 2925.03(A)(1), and one count of permitting drug abuse, in violation of R.C.
2925.13(A). They found him not guilty of the other two counts in the indictment. The
court sentenced Thornton to community control sanctions. Thornton now appeals and
raises three assignments of error.
Sufficiency and Manifest Weight of the Evidence
{¶10} In the first assignment of error, Thornton argues his convictions were
against the manifest weight of the evidence. In the second assignment of error, he argues
there was insufficient evidence to sustain his convictions. Although the terms
“sufficiency” and “weight” of the evidence are “quantitatively and qualitatively
different,” we address these issues together because they are closely related, while
applying the distinct standards of review to Thornton’s arguments. State v. Thompkins,
78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).
{¶11} The test for sufficiency requires a determination of whether the prosecution
met its burden of production at trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266,
2009-Ohio-3598, ¶ 12. The relevant inquiry is whether, after viewing the evidence in a
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime proven beyond a reasonable doubt. State v. Jenks, 61
Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶12} In contrast to sufficiency, “weight of the evidence involves the inclination of
the greater amount of credible evidence.” Thompkins at 387. While “sufficiency of the
evidence is a test of adequacy as to whether the evidence is legally sufficient to support a
verdict as a matter of law, * * * weight of the evidence addresses the evidence’s effect of
inducing belief.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d
1264, ¶ 25, citing Thompkins at 386-387. “In other words, a reviewing court asks whose
evidence is more persuasive — the state’s or the defendant’s?” Id. The reviewing court
must consider all the evidence in the record, the reasonable inferences, and the credibility
of the witnesses, to 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 at 387, quoting State v. Martin, 20
Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶13} Thornton argues there was no evidence that he knowingly sold or offered to
sell cocaine to the CRI because police found no drugs or buy money in his possession at
the time of his arrest. He also asserts that none of the witnesses identified his voice on
the audio recording taken from the CRI’s wire and that there was no evidence proving
that G.J. was a juvenile.
{¶14} Thornton was convicted of trafficking in violation of R.C. 2925.03(A)(1),
which states, in pertinent part, that “[n]o person shall knowingly * * * [s]ell or offer to
sell a controlled substance.” He was also convicted of permitting drug abuse in violation
of R.C. 2925.13(A), which states that “[n]o person who is the owner, operator * * * of [a]
vehicle, as defined in division (A) of section 4501.01 of the Revised Code, shall
knowingly permit the vehicle to be used for the commission of a felony drug abuse
offense.”
{¶15} Although no one identified Thornton’s voice on the audio recording, which
was played for the jury, circumstantial evidence established that he was complicit in the
crimes as an aider and abettor. Ohio’s complicity statute, R.C. 2923.03(A)(2), states, in
relevant part, that “[n]o person, acting with the kind of culpability required for the
commission of an offense, shall * * * [a]id or abet another in committing the offense[.]”
R.C. 2923.03(F) further provides that “[w]hoever violates this section is guilty of
complicity in the commission of an offense, and shall be prosecuted and punished as if he
were a principal offender.”
{¶16} To prove a defendant’s complicity through aiding and abetting “[t]he
evidence must show that the defendant supported, assisted, encouraged, cooperated with,
advised, or incited the principal in the commission of the crime and that the defendant
shared the criminal intent of the principal.” State v. Johnson, 93 Ohio St.3d 240, 245,
754 N.E.2d 796 (2001). Proof of a shared criminal intent may be inferred from the
circumstances surrounding the offense including presence, companionship, and conduct
before and after the offense is committed. Id. at 243.
{¶17} Duller testified that he observed Thornton and Cockrell approach the CRI in
the Dairy Mart parking lot where he overhead them discussing the sale of cocaine. They
informed the CRI that neither of them had any cocaine and offered to transport the CRI in
Thornton’s white Oldsmobile to a location where cocaine was readily available.
Moments later G.J. arrived in the parking lot and entered the back seat of Thornton’s
white Oldsmobile with the CRI. Thornton sat in the driver’s seat, and Cockrell sat in the
front passenger seat. Referring to G.J., either Thornton or Cockrell informed the CRI
that “he’s one of our people.” Shortly thereafter, the CRI gave Duller a verbal signal that
the transaction was complete.
{¶18} After G.J. exited the car, Duller heard Thornton and Cockrell demanding a
larger piece of cocaine as commission. Although Thornton’s voice was not identified in
the recording and no drugs were found in his possession, the fact that he allowed the sale
to occur inside his vehicle is sufficient to prove that he knowingly permitted drug abuse
and that he aided and abetted G.J. in the sale of drugs.
{¶19} We find no reason to question Duller’s credibility. The testimony of all
three witnesses was consistent with each other and corroborated one another’s testimony
that Thornton arranged the sale of drugs with G.J. Therefore, the jury’s conclusion that
he aided and abetted the sale of cocaine and allowed the sale to take place inside his car is
sustained by the manifest weight of the evidence.
{¶20} As previously stated, Thornton’s convictions included a juvenile
specification, which required the state to prove, beyond a reasonable doubt, that
Thornton:
commit[ted] the offense within one hundred feet of a juvenile or within the
view of a juvenile, regardless of whether the offender knows the age of the
juvenile, whether the offender knows the offense is being committed within
one hundred feet of or within view of the juvenile, or whether the juvenile
actually views the commission of the offense.
R.C. 2925.01(BB). Thornton argues there was insufficient evidence to prove that G.J.
was a juvenile because the state did not offer his birth certificate into evidence to
establish his exact age.
{¶21} R.C. 2925.01(N) defines “juvenile” as “a person under eighteen years of
age.” Although the statute does not require proof of the specific age or identity of the
alleged juvenile, the state must prove beyond a reasonable doubt that any such individual
is under the age of 18. State v. Creech, 12th Dist. Fayette No. CA2006-05-019,
2007-Ohio-2558, ¶ 18.
{¶22} In this case, when Ovalle described the events immediately following the
drug sale, he stated that he observed “the young male” exiting the white Oldsmobile.
Pipoly testified that G.J. was 17 years old and that his date of birth was February 18,
1996. In response to defense questioning, Duller testified that there were charges
pending against G.J. in juvenile court. This testimony, which provided the juvenile’s
precise age and date of birth, is sufficient to establish G.J. was a juvenile at the time
Thornton committed the offenses giving rise to this case. The jury found this evidence
credible, and we find nothing in the record to contradict this evidence. Therefore, the
juvenile specifications are sustained by sufficient evidence and the manifest weight of the
evidence.
{¶23} Accordingly, the first and second assignments of error are overruled.
Voir Dire
{¶24} In the third assignment of error, Thornton argues he was prejudiced by
statements made by a juror during voir dire. During voir dire, juror Rodriguez admitted
that he trained and worked alongside two potential witness as CMHA officers. Thornton
contends Rodriguez’s statements about his relationship with these officers unfairly
influenced the other jurors into believing they should be credible witnesses.
{¶25} Thornton did not object to Rodriguez’s statements and therefore forfeited all
but plain error. State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶
52. Crim.R. 52(B) provides that, “[p]lain errors or defects affecting substantial rights
may be noticed although they were not brought to the attention of the court.” To prevail
under a plain error analysis, appellant bears the burden of demonstrating that the outcome
of the trial clearly would have been different but for the error. State v. Long, 53 Ohio
St.2d 91, 372 N.E.2d 804 (1978), paragraph two of the syllabus.
{¶26} During voir dire, the judge questioned every juror in an obvious attempt to
uncover biases. Rodriguez candidly admitted that he would be biased in favor of Ovalle
because they worked together, often in arresting drug traffickers. During the voir dire,
the following dialogue took place:
THE COURT: How do you feel about sitting in judgment in a case where 2
of your colleagues are expected to be called as witnesses?
THE JUROR: The problem with that is, I train them. I admire the men.
So I can’t really say I would be unbiased.
* * *
THE COURT: You mentioned that you thought that you may not be able to
be unbiased. Can we talk about that a little further?
THE JUROR: Okay. Yes.
THE COURT: If you would take it from the perspective of the accused for a
moment — I mean, this is with great respect to you — would you want to
select you as a juror in this case?
THE JUROR: I think I honestly work alongside them too closely to be
involved in this case. So —
THE COURT: Okay. If you were convinced that the state did not meet
their burden of proof of convincing you beyond a reasonable doubt as to the
essential elements of the crimes charged, what would you do?
THE JUROR: If I was going to find reasonable doubt, that they didn’t meet
the requirements, then he would be found not guilty.
THE COURT: Okay.
THE JUROR: I would decide that he’s not guilty, if that[’s] what it came
down to.
* * *
THE COURT: What kind of pressure would you feel, real or otherwise,
imposed upon you by virtue of sitting in judgment in a case where 2 fellow
officers with whom you trained were testifying?
THE JUROR: None. None at all.
{¶27} None of Rodriguez’s responses mentioned anything about the officers
being good, honest people. Rodriguez merely stated that he would be biased in favor of
the officers because he trained them and regularly works alongside them. We find
nothing prejudicial about Rodriguez’s responses to the court’s questions. Furthermore,
when the court questioned every other juror, they agreed they would not give police
officers any more credibility than any other witness. Nothing in the record indicates that
the jury was influenced by Rodriguez’s statements. Thornton bears the burden on
plain-error review, and he has not met that burden.
{¶28} Therefore, the third assignment of error is overruled.
{¶29} Judgment affirmed.
It is ordered that appellee recover from appellant 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 common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
KENNETH A. ROCCO, P.J., and
MARY EILEEN KILBANE, J., CONCUR