[Cite as State v. Thompson, 2014-Ohio-4665.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
WASHINGTON COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 13CA41
:
vs. :
: DECISION AND JUDGMENT
STACY R. THOMPSON, : ENTRY
:
Defendant-Appellant. : Released: 10/15/14
_____________________________________________________________
APPEARANCES:
Robert W. Bright, Middleport, Ohio, for Appellant.
James E. Schneider, Washington County Prosecuting Attorney, and Alison
L. Cauthorn, Washington County Assistant Prosecuting Attorney, Marietta,
Ohio, for Appellee.
_____________________________________________________________
McFarland, J.
{¶1} Stacy R. Thompson appeals her convictions in the Washington
County Court of Common Pleas after a jury found her guilty of three counts
of trafficking in drugs (heroin), each felonies of the fifth degree in violation
of R.C. 2925.03(A)(1)& (C)(6)(a), and one count of trafficking in drugs
(heroin), a felony of the fourth degree, in violation of R.C. 2925.03(A)(1) &
(C)(6)(b). On appeal, Thompson contends the judgment of the trial court
should be reversed because: (1) no confidential informant testified and
therefore, Thompson did not have the opportunity to confront those
Washington App. No. 13CA41 2
witnesses; (2) her convictions were not supported by sufficient evidence
and/or were otherwise against the manifest weight of the evidence; (3) a
member of the jury was the father of a confidential informant that testified
against Thompson in another case in 2010; and, (4) Thompson received
ineffective assistance of counsel. Upon review, we find no merit to
Thompson’s four assignments of error. Accordingly, we overrule all
assignments of error and affirm the judgment of the trial court.
FACTS
{¶2} Stacy R. Thompson (Appellant) was indicted in 2012, in
Washington County Common Pleas case number 12CR322, for two counts
of trafficking in drugs, violations of R.C. 2925.03(A)(1) & (C)(6)(a). Count
1 of the indictment alleged Appellant knowingly sold or offered to sell a
Schedule I controlled substance, heroin, on or about July 3, 2012, at a
location on Pike Street in Marietta, Ohio. Count 2 of the indictment alleged
Appellant again knowingly sold or offered to sell heroin on or about July 5,
2012 at locations on Pike Street. Both counts are felonies of the fifth degree.
{¶3} While the 2012 trafficking case was pending, Appellant was
also indicted in 2013 for two counts of trafficking in heroin. The case
number of the second indictment was 13CR139. Count 1 of the indictment
alleged trafficking in violation of R.C. 2925.03(A)(1) & (C)(6)(b) on or
Washington App. No. 13CA41 3
about January 24, 2013 on Franklin Street in Marietta, within the vicinity of
school property. This count is a felony of the fourth degree. Count two, also
trafficking in heroin, alleged another violation of R.C. 2925.03(A)(1) &
(C)(6)(a) on or about January 28, 2013 on Acme Street in Marietta. On May
31, 2013, the trial court filed an entry consolidating both case numbers
12CR322 and 13CR139. The matter eventually proceeded to a jury trial on
August 7 and 8, 2013.
{¶4} At trial, the State presented testimony from Sergeant Brian
Lockhart, Detective Joshua Staats, Detective Carrie Smithberger, and
Detective Ryan Huffman. These officers testified as to their observations on
the relevant dates alleged in the counts against Appellant. During Detective
Smithberger’s testimony, she identified State’s Exhibits I and J, audio
recordings of two of the controlled buys. However, defense counsel
objected to admission of the recordings and the trial court ruled they were
inadmissible hearsay.1 Where relevant, additional facts gleaned from the
officers’ testimony will be set forth in detail below.
{¶5} Several forensic scientists from the Bureau of Criminal
Investigations in London, Ohio (BCI), Jessica Toms, Amanda White,
Jennifer Acurio, and Barbara Hoover, testified as to the State’s exhibits and
1
The transcript is not quite clear as to when counsel actually objected, but the matter and ruling is
discussed at page 410.
Washington App. No. 13CA41 4
the lab reports and opinions they prepared.2 David Tornes, on behalf of the
State, testified he was employed by the Washington County Sheriff’s Office
as an evidence technician, and he testified as to the chain of custody
involved with the State’s exhibits. Eric Arbaugh, an employee in the map
office of the county courthouse, identified States’ Exhibit M, an aerial view
of the west side of Marietta.3
{¶6} Counsel for the State argued in closing there was both direct and
circumstantial evidence of Appellant’s guilt. Appellant was the “common
denominator” in all four counts of trafficking in heroin. The defense put on
no testimony. In closing, however, defense counsel argued there were no
recordings and no confidential informants pointing the finger at Appellant.
Counsel emphasized there was no evidence to convict Appellant beyond a
reasonable doubt.
{¶7} Appellant was convicted of all four counts.4 Appellant was
before the court for sentencing on September 16, 2013 and a journal entry of
2
It was stipulated between the attorneys that the forensic scientists testifying at trial were qualified to test
the drugs in question and render opinions on their findings. These State’s exhibits consisted of the
suspected heroin obtained from the confidential informants during the controlled buys and the lab reports
they prepared after testing the substances suspected to be heroin.
3
Arbaugh testified to a distance of 552 feet between an address given to him by detectives and Harmar
school. This testimony pertained to the allegation that Appellant trafficked within the vicinity of a school
on January 24, 2013.
4
The “Journal Entry: Guilty Verdicts” filed by the trial court on August 15, 2013 states: “The Court notes
that this case was consolidated with Case No. 13-CR-139, upon the Motion of the Defendant, and in its
instructions to the jury, and on its verdict forms it refers to the two original counts of Case No. 12-CR-322,
as Counts One and Two respectively, and refers to the two counts of Case No. 13-CR-139, as Counts Three
and Four of this case, respectively.”
Washington App. No. 13CA41 5
sentencing was filed on October 24, 2013. Appellant was sentenced to a
definite period of twelve months for each conviction of counts one, two, and
four, and to a definite period of eighteen months upon her conviction in
count four of the consolidated cases. The sentences imposed for counts one,
three, and four were to be served consecutively to each other and the
sentence imposed for count two was to run concurrently to other sentences
imposed. In the aggregate, Appellant received a definite prison term of
forty-two months and she was ordered to pay the costs of prosecution. This
timely appeal followed.
ASSIGNMENTS OF ERROR
I. THE JUDGMENT OF THE TRIAL COURT SHOULD BE
REVERSED BECAUSE NO CONFIDENTIAL INFORMANT
TESTIFIED AND THUS DEFENDANT DID NOT HAVE
THE OPPORTUNITY TO CONFRONT THOSE
WITNESSES.
II. THE JUDGMENT OF THE TRIAL COURT SHOULD BE
REVERSED BECAUSE THE STATE’S EVIDENCE WAS
INSUFFICIENT TO MEET THE BURDEN OF PROOF
AND/OR THE APPELLANT’S CONVICTIONS WERE
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
III. THE JUDGMENT OF THE TRIAL COURT SHOULD BE
REVERSED BECAUSE A MEMBER OF THE JURY WAS
THE FATHER OF A CONFIDENTIAL INFORMANT THAT
TESTIFIED AGAINST THE DEFENDANT IN ANOTHER
CASE IN 2010.
Washington App. No. 13CA41 6
IV. THE APPELLANT RECEIVED INEFFECTIVE
ASSISTANCE OF COUNSEL AT THE TRIAL COURT
LEVEL.
ASSIGNMENT OF ERROR ONE
A. STANDARD OF REVIEW
{¶8} Appellant has not cited specific evidence admitted in violation
of the Confrontation Clause and, instead, makes a general complaint as to
the absence of the confidential informants at trial. Appellant did not make
specific objections at trial in order to properly preserve this issue for appeal.
Failure to object to an alleged error waives all but plain error. State v.
Keeley, 4th Dist. No. 11CA5, 2012-Ohio-3564, ¶28. Notice of Crim. R.
52(B) plain error must be taken with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice. State v.
Rohrbaugh, 126 Ohio St.3d 421, 2010-Ohio-3286, 934 N.E.2d 920, at ¶6;
State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), at paragraph three
of the syllabus. To find plain error, the outcome of trial clearly would have
been otherwise. State v. McCausland, 124 Ohio St.3d 8, 2009-Ohio-5933,
918 N.E.2d 507, at ¶15; State v. Braden, 98 Ohio St.3d 354, 2003-Ohio-
1325, 785 N.E.2d 439, at ¶50.
B. LEGAL ANALYSIS
{¶9} Under Appellant’s first assignment of error, she claims her
Confrontation Clause rights were violated because only law enforcement
Washington App. No. 13CA41 7
officers testified at trial, instead of the confidential informants. Appellant
contends she was denied her constitutional right to confront the only
witnesses - the informants - on which the State relied to build its entire case
against her. The law enforcement officer witnesses testified as to the details
of the alleged drug sales contained in the four counts against Appellant, even
though they were not directly involved in the alleged sales. Appellant
argues their testimony was essentially and entirely based upon the results of
the actions of the informants. As such, the informants were, in effect,
witnesses for the prosecution yet not subject to cross-examination.
{¶10} Appellee first notes Appellant has failed to separately argue the
first two assignments of error in accordance with App. R. 16. Pursuant to
App.R. 12(A)(2), this court may disregard an assignment of error presented
for review if the party raising it fails to identify in the record the error on
which the assignment of error is based or fails to argue the assignment
separately in the brief, as required under App.R. 16(A). See Wright v.
Suzuki Motor Corp. 4th Dist. Meigs Nos. 03CA2, 03CA3, and 03CA4,
2005-Ohio-3494, Fn.9. Appellant has argued assignments of error one and
two jointly. Though the appellate court has the option to address two or
more assignments of error at once, the parties do not. Grimes v. Grimes, 4th
Dist. Washington No. 10CA23, 975 N.E.2d 946, Fn. 4. However, “[It] is a
Washington App. No. 13CA41 8
fundamental tenet of judicial review in Ohio that courts should decide cases
on the merits.” Salisbury v. Smouse, 4th Dist. Pike No. 05CA737, 2005-
Ohio-5733, quoting DeHart v. Aetna Life Ins. Co. 69 Ohio St.2d 189, 192,
431 N.E.2d 644 (1982). Therefore, in the interests of justice, we will
address Appellant’s assignments of error.
{¶11} The Sixth Amendment to the United States Constitution
provides, “[i]n all criminal prosecutions, the accused shall enjoy the right * *
* to be confronted with the witnesses against him.” The Supreme Court of
the United States has “held that this bedrock procedural guarantee applies to
both federal and state prosecutions.” Crawford v. Washington, 541 U.S. 36,
124 S.Ct. 1354 (2004), citing Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065
(1965). Likewise, Section 10, Article I of the Ohio Constitution provides,
“[i]n any trial, in any court, the party accused shall be allowed * * * to meet
the witnesses face to face.” Before its admission, “[w]here testimonial
evidence is at issue * * * the Sixth Amendment demands what the common
law required: unavailability and a prior opportunity for cross examination.”
Crawford, 541 U.S. at 68. The question of whether a criminal defendant’s
rights under the Confrontation Clause have been violated is reviewed under
a de novo standard. State v. Smith, 162 Ohio App.3d 208, 2005-Ohio-3579,
Washington App. No. 13CA41 9
832 N.E.2d 1286 (8th Dist.); United States v. Robinson, (C.A. 6, 2004), 389
F.3d 582, 592.
{¶12} Upon review, we find the rights afforded Appellant under the
Confrontation Clause have not been compromised in this matter. In a
similar case, State v. Shinholster, 9th Dist. Summit No. 22587, 2005-Ohio-
5658, the defendant argued on appeal that he was denied his constitutional
right of confrontation under Crawford v. Washington when repeated
references to out of court statements by a confidential informant were used
against him. The appellate court noted that review of the trial transcript,
however, indicated the State did not elicit any testimony from its witnesses,
law enforcement officers, regarding any statements made by the confidential
informant in the case. The appellate court concluded because the trial
transcript indicated none of the State’s witnesses testified as to any
statements made by the confidential informants, the rights accorded by the
Sixth Amendment’s Confrontation Clause were not implicated.
{¶13} In the case sub judice, the State chose to call the law
enforcement officers involved in the controlled buys to testify as to their
observations. The testimony of these officers is the heart of the State’s case.
The transcript reveals Appellant made no objections to the testimony of the
Washington App. No. 13CA41 10
law enforcement officers. We therefore review this assignment of error
under a plain error standard.
{¶14} Appellant also does not direct us to any portions of the
transcript wherein the law enforcement officers were erroneously allowed to
testify as to any testimonial statements of the confidential informants. We
are not persuaded by Appellant’s argument that the confidential informants
were, in effect, witnesses for the prosecution. While the confidential
informants may have been the best witnesses to provide direct evidence
regarding the controlled heroin buys, the State chose not to call them. There
is no requirement that the State prosecute a case using the “best evidence” or
“direct evidence.” We find no violation of Appellant’s rights under the
Confrontation Clause and no plain error arising out of the State’s failing to
call the confidential informants as witnesses. As such, we overrule
Appellant’s first assignment of error and affirm the judgment of the trial
court.
ASSIGNMENT OF ERROR TWO
A. STANDARD OF REVIEW
{¶15} When reviewing a case to determine whether the record
contains sufficient evidence to support a criminal conviction, our function
“is to examine the evidence admitted at trial to determine whether such
Washington App. No. 13CA41 11
evidence, if believed, would convince the average mind of the defendant’s
guilt beyond a reasonable doubt. 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. See, also, Jackson v.
Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781 (1979).
{¶16} This test raises a question of law and does not allow us to
weigh the evidence. State v. Martin, 20 Ohio App.3d 172, 174, 485 N.E.2d
717 (1983). Rather, the test “gives full play to the responsibility of the trier
of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and
to draw reasonable inferences from basic facts to ultimate facts.” Jackson at
319. We reserve the issues of the weight given to the evidence and the
credibility of witnesses for the trier of fact. State v. Thomas, 70 Ohio St.2d
79, 79-80, 434 N.E.2d 1356 (1982); State v. DeHass, 10 Ohio St.2d 230, 227
N.E.2d 212 (1986), paragraph one of the syllabus.
{¶17} Even when sufficient evidence supports a verdict, we may
conclude that the verdict is against the manifest weight of the evidence,
because the test under the manifest weight standard is much broader than
that for sufficiency of the evidence. State v. Banks, 78 Ohio App.3d 206,
Washington App. No. 13CA41 12
214, 604 N.E.2d 219 (1992); State v. Martin, 20 Ohio App.3d 172, 175, 485
N.E.2d 717 (1983). In determining whether a criminal conviction is against
the manifest weight of the evidence, we must review the entire record, weigh
the evidence and all the 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. State v.
Garrow, 103 Ohio App.3d 368, 370-371, 659 N.E.2d 814; Martin at 175,
485 N.E.2d 717.
{¶18} “A reviewing court will not reverse a conviction where there is
substantial evidence upon which the court could reasonably conclude that all
the elements of an offense have been proven beyond a reasonable doubt.”
State v. Eskridge, 38 Ohio St.3d 56, 526 N.E.2d 304 (1988), paragraph two
of the syllabus. Whether the evidence supporting a defendant’s conviction is
direct or circumstantial does not bear on our determination. “Circumstantial
evidence and direct evidence inherently possess the same probative value
and therefore should be subjected to the same standard of proof.” Jenks at
paragraph one of the syllabus.
B. LEGAL ANALYSIS
{¶19} Appellant also contends that the jury’s judgment was
Washington App. No. 13CA41 13
based upon insufficient evidence and is against the manifest weight of the
evidence. Specifically, Appellant asserts the State’s entire case rested on the
testimony of law enforcement officers that testified they did not actually
witness an exchange. Appellant submits the State did not present sufficient
evidence to meet its burden of proof and a reasonable trier of fact could not
reasonably conclude that all of the elements of the charged offenses had
been proven beyond a reasonable doubt when no officer testified at trial that
he or she actually witnessed a drug sale by Appellant in any of the four
incidents. For the reasons which follow, we disagree.
{¶20} Regarding count one, Detective Joshua Staats of the Major
Crimes Task Force of the Washington County Sheriff’s Department testified
he participated in a controlled drug transaction on July 3, 2012. Detective
Staats testified he picked up informant Cory Meeks and transported him to
Marietta. Meeks was searched and given photocopied “buy” money and a
recording device. Staats observed as Meeks got into the vehicle Appellant
drove, a silver Durango, on the Kmart parking lot, and, a short time later,
Meeks exited Appellant’s vehicle and provided the officers with five unit
doses of heroin in purple balloons. Staats testified he did not actually see the
transaction take place inside the vehicle.
Washington App. No. 13CA41 14
{¶21} Detective Carrie Smithberger, also of the Major Crimes Task
Force in Washington County, worked with Detective Staats on July 3, 2012.
She testified Cory Meeks contacted her to assist in setting up the controlled
buy. Smithberger accompanied Officer Staats in driving Meeks to the
Kmart parking lot. Smithberger corroborated Staats’ testimony that he
searched Meeks. Smithberger provided Meeks with the buy money and
wiring equipment. Smithberger also observed Meeks getting into
Appellant’s vehicle on the Kmart parking lot. Smithberger specifically
testified she could visually observe an exchange between Appellant and
Meeks inside Appellant’s vehicle. Smithberger corroborated Staats’
testimony that Meeks returned to their vehicle with five balloons of
suspected heroin.
{¶22} Regarding count two, Detective Smithberger testified to a
similar encounter on July 5, 2012. She testified that Cory Meeks again
contacted her to set up a controlled buy at the Kmart in Marietta.
Smithberger testified they she searched Meeks and provided him with the
photocopied buy money and recording device. Smithberger observed
Appellant, with Brittany Martin in the passenger seat of the silver Durango,
pick up Meeks and drive to the Las Trancas Restaurant. Then they returned
to the Kmart parking lot and dropped off Meeks. Smithberger testified she
Washington App. No. 13CA41 15
did not observe a hand-to-hand exchange during the buy, but was in sight of
Appellant’s vehicle the entire time and no one else got out of the vehicle.
She testified the entire transaction took place during a five-minute time
period. When Meeks returned to Smithberger’s vehicle, he provided two
balloons of heroin. Both Staats and Smithberger acknowledged that the
transactions of July 3, 2012 and July 5, 2012 were not captured on video.
{¶23} Sergeant Brian Lockhart of the Major Crimes Task Force in
Washington County worked with Detective Smithberger on July 5, 2012.
He corroborated her testimony that Meeks was picked up and dropped off at
the Kmart parking lot. He corroborated Smithberger’s testimony that she
searched Meeks and provided him with the photocopied buy money and
recording equipment. Lockhart also observed Appellant enter the Kmart lot
and Meeks enter into the silver Durango. Appellant drove to the Las
Trancas restaurant and back to the Kmart lot, where he exited Appellant’s
vehicle and was picked up by the officers. Lockhart acknowledged there
was a brief period of time where he could not see inside Appellant’s vehicle.
Lockhart also corroborated Smithberger’s testimony that she searched
Meeks and he provided the suspected heroin.
{¶24} Regarding count three, Detective Staats also assisted in the
January 24, 2013 controlled buy on the west side of Marietta. The
Washington App. No. 13CA41 16
transaction took place during daylight hours. Staats testified he sat on
Virginia Street, near the Boathouse bar in an unmarked vehicle, while
Detective Huffman was located on the other side of Virginia Street. Staats
testified Huffman dropped the confidential informant, this time, a person
named Mark McIntyre, off at the bar and McIntyre began walking on
Franklin Street. Staats observed Appellant, in a dark blue hooded jacket,
meet McIntyre on the sidewalk. Staats observed an exchange. The silver
Durango was parked up the street. Staats testified as he drove past the two
on the sidewalk, he saw an exchange of money.
{¶25} Detective Lockhart also testified he worked with Detective
Staats on January 24, 2013. Lockhart testified he was a passenger with
Sergeant Staats when he witnessed a hand-to-hand exchange between the
confidential informant and Appellant on the sidewalk on Franklin Street in
Marietta. Lockhart testified they maintained radio contact with Detective
Huffman, but Huffman picked up the confidential informant after the
transaction took place. Lockhart also testified the confidential informant
was out of his line of vision for less than ten seconds.
{¶26} Detective Ryan Huffman of the City of Marietta, but assigned
to the Major Crimes Task Force, also testified he was working on January
24, 2013. He testified McIntyre contacted him and a controlled buy was
Washington App. No. 13CA41 17
arranged. Huffman and an Officer Hornbeck picked up McIntyre in an
unmarked vehicle. McIntyre was searched and then transported to the west
side of Marietta. Officers Staats and Lockhart were performing surveillance
in a different vehicle on the west side. The meeting location was the
Boathouse restaurant. Huffman let McIntyre out of the vehicle on Gilman
Street and watched him walk to Virginia Street. Then Huffman lost sight of
McIntyre, but McIntyre was in the sight of Staats and Lockhart. Huffman
was in radio contact with the other officers. McIntyre then went onto
Franklin Street and the other officers followed onto Franklin Street. The
other officers advised Huffman they observed a hand to hand transaction
between Appellant and the informant. Huffman admitted he did not see this
hand to hand transaction.
{¶27} Huffman then picked up the confidential informant who gave
him the evidence and the recording device. The informant was searched
again. He transported the confidential informant away from the area and
returned to his office where he photographed the evidence and sealed it.
{¶28} Regarding count four, Huffman further testified he worked
with McIntyre again on January 28, 2013 to arrange a heroin deal. McIntyre
advised it would take place in the Kroger parking lot. Huffman picked up
McIntyre and searched him, finding no illegal contraband. The informant
Washington App. No. 13CA41 18
was transported to the location and called Appellant a few times. Huffman
parked on the Kroger lot. Huffman again provided the buy money and
recording device.
{¶29} On this occasion, the informant walked to the Pizza Hut end of
the Kroger lot, in Huffman’s sight the entire time. A red Chevrolet Cavalier
driven by T. J. Gaughan arrived and parked at the Pizza Hut lot.5 McIntyre
went to the passenger side and obtained something from the passenger.
McIntyre walked back to Huffman’s location. When the red vehicle left,
Huffman could see the passenger was Appellant. Huffman eventually met
back with McIntyre on the parking lot. McIntyre was never out of
Huffman’s sight. When he got into the vehicle, he provided the substance he
had purchased from Appellant, and the recording device. The informant was
searched and dropped off elsewhere. Huffman went back to the station and
secured the evidence.
{¶30} On cross-examination, Huffman acknowledged he had known
McIntyre for 10 or 11 years and he had been through the criminal system
quite a bit. McIntyre was paid $100.00 each for the separate transactions.
McIntyre has used crack cocaine and heroin. At the time of trial, he was
5
T.J. Gaughan was later charged with complicity.
Washington App. No. 13CA41 19
held in the North Central Regional Jail in West Virginia on a burglary
charge. He had been terminated as a confidential informant.
{¶31} Finally, Detective Staats also testified as to observations made
on January 28, 2013. He testified he was in the Kroger area on Acme Street
in Marietta when he observed a red Chevrolet Cavalier, driven by a male,
pull in to the lot. Appellant was also in the vehicle. However, Staats
acknowledged he lost sight of the vehicle and did not observe anyone meet
with it. On cross-examination, Staats acknowledged he did not deal with
setting up the confidential informants. He also did not make a written
report.
{¶32} The State’s case was proven, largely, by circumstantial
evidence. Circumstantial evidence is sufficient to establish an element of any
crime. State v. Kutsar, 8th Dist. Cuyahoga No. 89310, 2007-Ohio-6990,
¶20; see, State v. Jenks, 61 Ohio St.3d at paragraph one of the syllabus. In
State v. Mansaray, 8th Dist. Cuyahoga No. 90647, 2009-Ohio-1237, the
appellate court held that circumstantial evidence supported Mansaray’s
conviction. In Mansaray, the defendant was convicted of drug trafficking
pursuant to a drug deal arranged by police between defendant and an
informant. The police officers involved did not observe the actual hand-off
of the drugs, however, when the police officers arrived, the informant had
Washington App. No. 13CA41 20
drugs on him. The appellate court also noted the informant was thoroughly
searched and was never out of the officers’ sight after being searched. Thus,
the only opportunity the informant had to obtain drugs was from the
defendant. In State v. Cunningham, 6th Dist. Wood No. WD-08-063, 2009-
Ohio-6970, Cunningham was convicted of three counts of trafficking in
cocaine. Although Cunningham was recorded during each buy and the
recordings were played for the jury, none of the officers involved directly
observed any of the drug transactions.6 Thus, the jury considered direct and
circumstantial evidence. In State v. Robinette, 4th Dist. Jackson No. 669,
1992 WL 12983, at *4, this court held that the circumstantial evidence
presented at trial sufficiently proved Robinette was aware he was selling
marijuana.
{¶33} Further, we are mindful of the weight to be given evidence and
the credibility to be afforded testimony are issues to be determined by the
trier of fact. State v. Frazier, 73 Ohio St.3d 323, 339, 1995-Ohio-235, 652
N.E.2d 1000, citing State v. Grant, Ohio St.3d 465, 477, 1993-Ohio-171,
620 N.E.2d 50. The fact finder “is best able to view the witnesses and
observe their demeanor, gestures, and voice inflections, and use these
observations in weighing the credibility of the proffered testimony.”
6
Cunningham’s appeal was not based on sufficiency or manifest weight arguments.
Washington App. No. 13CA41 21
Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273
(1984).
{¶34} It appears that here, the jury found the testimony of the four
officers involved to be persuasive and credible, despite the admissions that,
at times, they were unable to see an actual hand-to-hand transaction or to see
inside Appellant’s vehicle. We will not substitute our judgment for that of
the jury under these circumstances. The officers testified that prior to each
controlled buy, the informants were searched. As to count one, Detective
Smithberger testified she observed the exchange made inside the silver
Durango Appellant was driving. As to count two, although both officers
admitted they did not see the exchange, there was testimony that the
informant was the only person to get into Appellant’s vehicle and, within
five minutes, he returned with the substance later found to be heroin. As to
count three, Staats and Lockhart testified they witnessed an exchange of
money on the sidewalk between the informant and Appellant. Huffman lost
sight of the informant for only a brief period of time. And as to count four,
Huffman observed an exchange between Appellant, as passenger, and the
confidential informant. Huffman also testified the informant was never out
of his line of vision.
Washington App. No. 13CA41 22
{¶35} Admittedly, there was also testimony that Detective Staats
attempted to video the July 3, 2012 transaction, but it was raining and the
camera did not record well. And, on the January 28, 2013 occasion, Staats
acknowledged he did not deal with the confidential informant and did not
make a written report. There was also testimony from Detective
Smithberger that she did not videotape the transactions she was involved
with. None of the searches of the informants were strip searches. The
informants were paid minimal amounts. Testimony elicited on cross
examination demonstrated that Mark McIntyre had a history of criminal
activity and drug usage. But, it was in the province of the jury to evaluate
the evidence and determine its weight and value.
{¶36} We conclude that there was both substantial and direct
evidence upon which the jury could have concluded that all the essential
elements of the counts charged had been proven beyond a reasonable doubt.
Further, in light of the circumstantial evidence adduced at trial, we cannot
conclude the jury lost its way and created a manifest miscarriage of justice
by finding Appellant guilty of four counts of trafficking in heroin. As such,
we overrule Appellant’s second assignment of error and affirm the judgment
of the trial court.
ASSIGNMENT OF ERROR THREE
Washington App. No. 13CA41 23
A. STANDARD OF REVIEW
{¶37} To succeed on a claim regarding error in the selection of a
juror, Appellant must show that the error affected a substantial right- i.e.,
that is that it caused actual prejudice to the defendant. State v. Wilhelm, 5th
Dist. Knox Nos. 03-CA-25, 03-CA-26, 2004-Ohio-5522, ¶17; United States
v. Delgado (6th Cir.2003), 350 F.3d 520.
B. LEGAL ANALYSIS
{¶38} Appellant also contends the judgment of the trial court should
be reversed because a member of the jury was the father of a confidential
informant that testified against the defendant in another case in 2010.
During voir dire, prospective juror Nunn was questioned as to whether or not
he recognized Appellant. He responded that he did not recognize her. After
trial, Appellant claims to have learned that Nunn has some relationship to
Christina Nunn Hines.7 Hines acted as a confidential informant against
Appellant in a prior case, 10CR073.8 Appellant’s counsel also
acknowledges she has conducted a search of more than 100 cases and has no
specific basis for arguing that Appellant’s conviction should be overturned
on the basis of the juror’s apparent relationship to the previous confidential
7
Appellant acknowledges she has not yet been able to confirm the relationship, but argues she is certain
they are related as father and daughter.
8
The briefs indicate this was verified by court personnel.
Washington App. No. 13CA41 24
informant. Appellant however requests this court to consider the issue as a
factor in determining whether or not to overturn Appellant’s convictions.
{¶39} Appellee responds that Appellant’s argument in the third
assignment of error is based on information gained from an unexplained
source after trial and is not contained in the record for our review. We agree
with Appellee. Wilhelm, supra, at ¶15. (See State v. Hooks, 92 Ohio St.3d
83, 2001-Ohio-150, 748 N.E.2d 528, wherein the Supreme Court of Ohio
noted: “[A] reviewing court cannot add matter to the record before it that
was not a part of the trial court’s proceedings, and then decide the appeal on
the basis of the new matter.” The only evidence in the record regarding the
selection of Juror Nunn is contained in the following exchange:
The Court: Mr. Nunn, you need to come to the jury box. Good
morning, sir. Were you able to hear all of our questions and
comments?
Prospective Juror Nunn: Yes, Your Honor.
The Court: Are there any you would have answered, had you
been seated there?
Prospective Juror Nunn: Say that again.
The Court: Are there any questions that you would have
answered, had you been seated there when we were asking
them or any comments you would have responded to?
Prospective Juror Nunn: Well, I do have to say I - - outside of
my profession, I do volunteer at a homeless shelter.
The Court: Okay. Okay. What’s your profession sir.
Washington App. No. 13CA41 25
Prospective Juror Nunn: I am a retired Marine and I work for
the Bureau of Public Debt as an IT specialist.
The Court: Okay. Okay. Any other questions you would have
answered? Okay, sir, do you understand - - and will you do
this, will you be fair and impartial to both sides, decide the case
on the evidence that’s - - you hear in court and - - and the law
as I give it to you, and give the case your undivided attention?
Prospective Juror Nunn: Yes, Your Honor.
The Court: Thank you. Attorney Schneider, you may inquire.
***
Mr. Schneider: Any family or friends, close friend issues
involving heroin abuse or drug abuse that would cause you
maybe a problem sitting on the - -
Prospective Juror Nunn: My wife’s - - my wife’s sister’s
daughter has some chemical issues.
Mr. Schneider: All right. Does that fact cause you a greater
problem sitting on a jury in which the crime charged is
trafficking in drugs?
Prospective Juror Nunn: No.
Mr. Schneider: Any reason you feel you couldn’t sit as a fair
and impartial juror in this case?
Prospective Juror Nunn: No.
***
Mr. Smith: All right. You say your wife’s sister’s daughter has
issues with substance abuse?
Prospective Juror Nunn: Yes.
Washington App. No. 13CA41 26
Mr. Smith: What’s her drug of choice? Do you know?
Prospective Juror Nunn: To speak it out, to know for sure, no.
I just kind of stay some distance (inaudible).
Mr. Smith: Stay away - - as far away from it as you can get?
Prospective Juror Nunn: that’s correct.
***
Mr. Smith: Do you recognize Miss Thompson?
Prospective Juror Nunn: No.
***
Mr. Smith: Do you understand, the State has the burden of
proof? Do you know what the burden of proof is?
Prospective Juror Nunn: Beyond a reasonable doubt.
Mr. Smith: Can you hold the State to that - - that standard?
Can you stay - - keep an open mind throughout the trial? Any
other reason you don’t believe you could sit on this jury?
Prospective Juror Nunn: No.
Mr. Smith: Pass for cause.
{¶40} Appellant’s contention that Juror Nunn’s apparent relationship
to Christina Nunn, a confidential informant in a previous case against
Appellant, is cause for her conviction to be overturned is based upon
information not properly in the record before us. Furthermore, from what is
properly before us regarding the selection of Juror Nunn, we see no evidence
that Juror Nunn was unable to function as a fair and impartial juror in the
Washington App. No. 13CA41 27
case. Appellant’s assertion under this assignment of error is, further,
“nothing more than speculation- and speculation cannot support a finding of
actual prejudice.” Wilhelm, supra, at ¶17, quoting Delgado, supra. As such,
we find no merit to Appellant’s third assignment of error and it is hereby
overruled.
ASSIGNMENT OF ERROR FOUR
{¶41} In Appellant’s final assignment of error, she contends she
received ineffective assistance of counsel. Specifically, Appellant argues:
(1) her counsel failed to attempt to subpoena either of the confidential
informants in the case; and, (2) her counsel failed to file a motion to
suppress prior to trial. For the reasons which follow, we disagree.
A. STANDARD OF REVIEW
{¶42} Criminal defendants have a right to counsel, including a right
to the effective assistance from counsel. McMann v. Richardson, 397 U.S.
759, 770, 90 S.Ct. 1441 (1970); State v. Stout, 4th Dist. No. 07CA5, 2008-
Ohio-1366, ¶21. To establish constitutionally ineffective assistance of
counsel, a defendant must show (1) that his counsel’s performance was
deficient and (2) that the deficient performance prejudiced the defense and
deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687,
104 S.Ct. 2052 (1984); State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904
Washington App. No. 13CA41 28
(2001); State v. Goff, 82 Ohio St.3d 123, 139, 694 N.E.2d 916 (1998). “In
order to show deficient performance, the defendant must prove that
counsel’s performance fell below an objective level of reasonable
representation. To show prejudice, the defendant must show a reasonable
probability that, but for counsel’s error, the result of the proceeding would
have been different.” State v. Conway, 109 Ohio St.3d 412, 2006 Ohio-2815,
848 N.E.2d 810, ¶95 (citations omitted). “Failure to establish either element
is fatal to the claim.” State v. Jones, 4th Dist. No. 06CA3116, 2008-Ohio-
968, ¶14. Therefore, if one element is dispositive, a court need not analyze
both. State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000)
(stating that a defendant’s failure to satisfy one of the elements “negates a
court’s need to consider the other”).
{¶43} When considering whether trial counsel’s representation
amounts to deficient performance, “a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Strickland, 466 U.S. at 689. Thus, “the defendant
must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.” Id. “A
properly licensed attorney is presumed to execute his duties in an ethical and
competent manner.” State v. Taylor, 4th Dist. No. 07CA1, 2008-Ohio-482,
Washington App. No. 13CA41 29
¶10, citing State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985).
Therefore, a defendant bears the burden to show ineffectiveness by
demonstrating that counsel’s errors were so serious that he or she failed to
function as the counsel guaranteed by the Sixth Amendment. State v.
Gondor, 112 Ohio St.3d 377, 2006 Ohio-6679, 860 N.E.2d 77, ¶62; State v.
Hamblin, 37 Ohio St.3d 153, 524 N.E.2d 476 (1988).
{¶44} To establish prejudice, a defendant must demonstrate that a
reasonable probability exists that but for counsel’s errors, the result of the
trial would have been different. State v. White, 82 Ohio St.3d 15, 23, 693
N.E.2d 772 (1998); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373
(1989), at paragraph three of the syllabus. Furthermore, courts may not
simply assume the existence of prejudice, but must require that prejudice be
affirmatively demonstrated. See State v. Clark, 4th Dist. No. 02CA684,
2003-Ohio-1707, ¶22; State v. Tucker, 4th Dist. No. 01CA2592 (Apr.2,
2002); State v. Kuntz, Ross App. No. 1691 (Feb. 26, 1992).
B. LEGAL ANALYSIS
1. The failure to subpoena either of the confidential informants.
{¶45} Appellant argues the identity of informant Corey Meeks was
revealed to Appellant nearly six months prior to trial. Appellant also points
to Brittany Martin’s letter to the prosecuting attorney, stating that Appellant
Washington App. No. 13CA41 30
gave her a ride to meet with her cousin, Meeks, at Kmart and at the Mexican
restaurant, references the two incidents in which Appellant was convicted of
selling drugs to informant Meeks. Appellant argues the failure to subpoena
Meeks prejudiced Appellant because Appellant was unable to establish the
fact that Brittany Martin was meeting with Meeks. Appellant also argues
that the identity of the other informant, Mark McIntyre, was known to
counsel prior to trial and no effort was made to subpoena him for trial.
{¶46} Appellee responds by pointing out that Appellant successfully
moved to exclude the audio recordings, which she must have believed would
harm, not assist, her case at trial. Appellee argues Appellant is not able to
show how the informants’ testimony would have benefitted her and
therefore, she is unable to demonstrate prejudice. Appellee also argues the
“Brittany Martin” letter was prepared “after the fact” and demonstrates only
that she was present at the scene. Appellee asserts Appellant is unable to
show prejudice in this regard as well.
{¶47} “‘Generally, counsel’s decision whether to call a witness falls
within the rubric of trial strategy and will not be second-guessed by a
reviewing court.’” State v. Siders, 4th Dist. Gallia No. 07CA10, ¶19,
quoting State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d
229, at ¶143, quoting State v. Treesh, 90 Ohio St.3d 460, 490, 739 N.E.2d
Washington App. No. 13CA41 31
749 (2001). We agree with Appellee that Appellant has failed to show
prejudice by her counsel’s failure to secure the confidential informant
witnesses’ presence at trial. Both informants Meeks and McIntyre could just
have easily chosen to testify against Appellant. The fact that Appellant
moved to exclude the audio recordings provides further evidence that the
testimony of the informants would have hurt Appellant’s defense rather than
have assisted with it. Appellant likely did not want the recordings to come
into evidence because they were accurate recordings of the conversations
between her and the informants and provided strong evidence of guilt. The
failure to secure the presence of these witnesses at trial appears to be a
strategic decision of counsel.
{¶48} It is also only speculation that, had Meeks testified, he would
verify the contents of the Brittany Martin letter, that Appellant was actually
taking Martin to see Meeks. Prejudice must be affirmatively demonstrated.
See Clark, supra Appellant is not able to show prejudice, i.e., that, but for
her counsel’s purported errors, the result of the proceeding would have been
different. We find no merit to this argument.
2. The failure to file a motion to suppress.
{¶49} Appellant also argues trial counsel did not file any motion to
Washington App. No. 13CA41 32
suppress witness testimony, statements, documentary evidence, or other
evidence. As such, Appellant went to trial “blind.” “The failure to file or
pursue a motion to suppress does not automatically constitute ineffective
assistance of counsel.” Siders, supra, at ¶11, quoting State v. Taylor, 4th
Dist. Washington No. 07CA11, 2008-Ohio-482, at ¶10, citing State v.
Madrigal, 87 Ohio St.3d 378, 389, 200-Ohio-448, 721 N.E.2d 52 (internal
citations omitted.). Instead, to establish ineffective assistance of counsel for
failure to file a motion to suppress, a defendant must prove that there was a
basis to suppress the evidence in question. Siders, supra, citing State v.
Brown, 115 Ohio St.3d 55, 20070Ohio-4837, 873 N.E.2d 858, at ¶65, citing
State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, at
¶35. In other words, the defendant must show that a motion to suppress
would have had a reasonable probability of success. Siders, supra; see, State
v. Santana, 90 Ohio St.3d 513, 515-516, 2001-Ohio-7, 739 N.E.2d 798; see
also, State v. Chamblin, 4th Dist. Adams No. 02CA753, 2004-Ohio-2252, at
¶34, citing State v. Nields, 93 Ohio St.3d 6, 2001-Ohio-1291, 752 N.E.2d
859(2001).
{¶50} Here, Appellant does not specify what witness testimony
should have been suppressed by a favorable motion ruling. Appellant does
not specify which statements made my which witnesses should have been
Washington App. No. 13CA41 33
suppressed. Appellant does not specify what documentary evidence merited
suppression. As such, she cannot show prejudice based on speculation of
vaguely-described content of a motion to suppress.
{¶51} Next, Appellant points out the audio recordings of the incidents
were, in fact, excluded the day before trial. Thus, such a motion would have
had a reasonable probability of success. Appellant argues had the audio
recordings been suppressed earlier in the proceedings, trial counsel could
have taken other steps, such as entering into plea negotiations from a
stronger position and/or filing another motion to suppress or limit the
testimony of the law enforcement officers concerning the details of incidents
to which the officers did not witness an exchange. This again, is
speculation.
{¶52} Appellant, here, cannot establish prejudice because the audio
recordings were, in fact, excluded. Appellant’s argument focuses on the
actions she may have taken, had a motion to suppress been filed and granted,
and is based on speculation. As such, Appellant’s argument is without
merit.
{¶53} In sum, we do not believe Appellant can show a reasonable
probability that, but for counsel’s alleged errors, the result of the proceeding
would have been different. We do not find Appellant was prejudiced by the
Washington App. No. 13CA41 34
actions of trial counsel with regard to counsel’s failure to subpoena the
confidential informant witnesses or the failure to file a motion to suppress.
As such, we also overrule this assignment of error. Having overruled all of
the assignments of error, we affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
Washington App. No. 13CA41 35
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Washington County Common Pleas Court to carry this judgment into
execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Abele, P.J. & Harsha, J.: Concur in Judgment and Opinion.
For the Court,
BY: ___________________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.