[Cite as State v. Knox, 2013-Ohio-1993.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99081
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
LARRY D. KNOX
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART, REVERSED
IN PART, AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-565542
BEFORE: Stewart, A.J., Kilbane, J., and Blackmon, J.
RELEASED AND JOURNALIZED: May 16, 2013
ATTORNEY FOR APPELLANT
Kelly A. Gallagher
P.O. Box 306
Avon Lake, OH 44012
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Denise J. Salerno
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
MELODY J. STEWART, A.J.:
{¶1} The court found defendant-appellant Larry Knox guilty of two counts of drug
trafficking and two counts of drug possession. The two assignments of error raised on
appeal challenge the weight of the evidence supporting both the trafficking and
possession counts.
{¶2} The manifest weight of the evidence standard of review requires us to review
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
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 ordered. State v. Otten, 33 Ohio App.3d
339, 340, 515 N.E.2d 1009 (9th Dist.1986). The use of the word “manifest” means that
the trier of fact’s decision must be plainly or obviously contrary to all of the evidence.
This is a difficult burden for an appellant to overcome because the resolution of factual
issues resides with the trier of fact, State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212
(1967), paragraph one of the syllabus, and the trier of fact has the authority to “believe or
disbelieve any witness or accept part of what a witness says and reject the rest.” State v.
Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964). For this reason, it is only the “rare”
case in which the trier of fact’s verdict will be overturned as being against the manifest
weight of the evidence. State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st
Dist.1983).
{¶3} The evidence showed that police officers witnessed a truck, driven by Knox,
fail to signal a turn. They pulled alongside Knox’s truck, but before they could take any
action, Knox “jumped” out and went to the back of the truck. When he did so, the
officers noticed that the steering column of the truck had been peeled. After running a
license check, they learned that Knox had an outstanding warrant. Knox was arrested
and the contents of the truck were inventoried prior to it being towed. The officers found
what they described as a small bag containing some dirty laundry and three,
orange-colored, prescription pill bottles. The three pill bottles contained a total of four
different drugs. As relevant here, there were 60 unit doses of Clonazepam (brand name
“Klonopin”) and 5.5 unit doses of Alprazolam (brand name “Xanax”), both schedule IV
narcotics. The labels on the pill bottles were partially removed so the names of the
patient and the drug could not be determined. The police also recovered a cell phone and
$70 in cash from Knox. The truck was lawfully registered to Knox. Even though the
pill bottles contained the names of the pharmacy and prescribing physicians, the police
did not inquire into the name of the person or persons for whom these medications had
been prescribed.
{¶4} Knox explained the peeled steering column by saying that he recently
purchased the truck but did not have a key. He said that there were items in the truck
when he purchased it, that he did not own the bag, clothing, and pills. He surmised that
the bag had been in the truck when he purchased it.
{¶5} Beginning with the drug possession counts, we find competent, credible
evidence to support a guilty verdict. The court heard conflicting testimony on whether
Knox owned the bag: the police said that Knox admitted that the bag, but not the pills,
belonged to him; Knox testified that he owned neither the bag nor the pills. What likely
convinced the court of Knox’s guilt was a letter written by a friend of Knox in which the
friend said that one of the bottles of pills found in the bag (Tramadol, a nonscheduled
drug), belonged to him. With Knox admitting that the Tramadol pills found in the bag
belonged to his friend, his testimony that he was unaware of the bag and the pills it
contained was incredible. It would require the court to believe that at least two persons
(the friend claimed to own only one of the three bottles) put pill containers in the bag
without Knox even knowing that the bag existed.
{¶6} The weight of the evidence supporting the trafficking counts was far less
credible. There was no direct evidence of trafficking. A vice unit detective testified
that he considered Knox to be trafficking in drugs given the type of drugs found, their
packaging, and Knox’s possession of a cell phone and $70 in cash. Standing alone, none
of these facts is sufficient to establish that Knox knowingly prepared the drugs for
delivery or distribution.
{¶7} In fact, the evidence tended to show mere possession and no trafficking.
That the pills were held in bulk inside pill bottles was unremarkable. Indeed, being
carried in bulk suggested that the pills were for Knox’s personal use because they were
not individually-packaged as would be expected if Knox were preparing them for delivery
or distribution. Knox’s possession of a cell phone and a small amount of cash is likewise
innocuous — cell phones are ubiquitous and there was no evidence that Knox used the
cell phone in any way to traffick the drugs. And the $70 in cash recovered from Knox is
not such an unusual amount of cash that it was suggestive of his being a drug dealer.
{¶8} The vice detective thought it significant that the labels on the pill bottles had
been torn off, but we fail to see how that fact is indicative of trafficking. Given Knox’s
illegal possession of the pills, it is entirely plausible that he obtained the pills illegally and
then destroyed the labels to hide that fact.
{¶9} In conclusion, the evidence of possession was credible, but the evidence
supporting the trafficking counts consisted of nothing more than a collection of several,
nonincriminating facts that said nothing about Knox’s intent to traffick pills recovered
from inside his truck. The conviction for trafficking counts was manifestly against the
weight of the evidence and Knox is entitled to a new trial on those counts.
{¶10} This cause is affirmed in part, reversed in part, and remanded to the trial
court for further proceedings consistent with this opinion.
It is ordered that appellee and appellant share 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 Cuyahoga
County Court of Common Pleas 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.
MELODY J. STEWART, ADMINISTRATIVE JUDGE
MARY EILEEN KILBANE, J., and
PATRICIA ANN BLACKMON, J., CONCUR