State v. Barnes

[Cite as State v. Barnes, 2020-Ohio-3943.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY

STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 19CA3687
:
vs. :
: DECISION AND
DAJOHN M. BARNES, : JUDGMENT ENTRY
:
Defendant-Appellant. :
_____________________________________________________________
APPEARANCES:

Timothy Young, Ohio Public Defender, and Addison M. Spriggs, Assistant State
Public Defender, Columbus, Ohio, for Appellant.

Jeffrey C. Marks, Ross County Prosecuting Attorney, and Pamela C. Wells, Ross
County Assistant Prosecuting Attorney, Chillicothe, Ohio, for Appellee.
_____________________________________________________________

Smith, P.J.

{¶1} This is an appeal from a Ross County Common Pleas Court judgment

of conviction and sentence. Appellant, DaJohn Barnes, was found guilty by a jury

of one count of possession of heroin, a first-degree felony in violation of R.C.

2925.11, with a major drug offender specification, as well as one count of

possession of cocaine, a first-degree felony in violation of R.C. 2925.11. He was

also convicted of one count of trafficking in heroin, a fifth-degree felony in

violation of R.C. 2925.03. On appeal, Barnes contends 1) that his convictions for
Ross App. No. 19CA3687 2

possession of heroin and possession of cocaine are not supported by sufficient

evidence; 2) that his convictions for possession of drugs are against the manifest

weight of the evidence; and 3) that the trial court erred when it failed to determine

if he was a major drug offender in the sentencing entry.

{¶2} Because we conclude that Barnes’ convictions for possession of both

heroin and cocaine are supported by sufficient evidence and are not against the

manifest weight of the evidence, we find no merit to his first or second

assignments of error. Thus, they are both overruled. Further, because we find the

trial court did not err in sentencing Barnes, his third assignment of error is also

overruled. Accordingly, the judgment of the trial court is affirmed.

FACTS

{¶3} On February 22, 2019, Appellant was indicted on five felony drug-

related charges. The indictment alleged as follows: 1) that Barnes possessed

heroin, a first-degree felony in violation of R.C. 2925.11, along with a major drug

offender specification (count one); 2) that Barnes possessed cocaine, a first-degree

felony in violation of R.C. 2925.11 (count two); 3) that Barnes trafficked in heroin,

a fifth-degree felony in violation of R.C. 2925.03 (count three); 4) that Barnes was

complicit in the aggravated trafficking of drugs, a fourth-degree felony in violation

of R.C. 2923.03 (count four); and 5) that Barnes was complicit in the aggravated

trafficking of drugs, a fourth-degree felony in violation of R.C. 2923.03 (count
Ross App. No. 19CA3687 3

five). The indictment stemmed from an investigation involving two controlled

buys and the execution of a search warrant that took place between September 19-

21, 2018. Barnes pleaded not guilty to the charges and the matter proceeded to a

jury trial on July 9, 2019.

{¶4} The State presented several witnesses at trial, including Hans Fischer,

the property manager of the apartment building where the search warrant was

executed, and Steven Livingston, a confidential informant who works with the

Chillicothe Police Department. The State also presented testimony by Detective

Samantha Taczak, who works for the Chillicothe Police Department, Detective

Ben Rhoads, who works for the Special Investigation Unit of the Chillicothe Police

Department, Sergeant John Silvey, who works for the Criminal Patrol Investigation

Unit of the Ohio State Highway Patrol, and Detective Bud Lytle, who also works

with the Chillicothe Police Department. Finally, the State presented the testimony

of Krystal Soles and Laurel Heinit, both forensic scientists in the Drug Chemistry

Section of the Ohio Bureau of Investigation (hereinafter “BCI”).

{¶5} Detective Samantha Taczak testified that she set up two controlled

drug buys between Barnes and Steven Livingston, a confidential informant, on

September 19th and September 20th, 2018. She testified that on the day the first

controlled buy was planned, on September 19th, Barnes was stopped while driving

and she was involved in the stop. She testified that during the stop, Barnes told her
Ross App. No. 19CA3687 4

that he was staying at the Meyer Motel, which is actually an apartment complex

located at 799 Eastern Avenue in Chillicothe, Ohio. Her testimony indicated that

although Barnes was searched during the stop, no drugs were found. Taczak also

testified regarding a controlled buy that took place the next day, on September

20th. She testified that she observed Barnes exit an apartment located at 799

Eastern Avenue, get into a vehicle and travel to the Certified Station, which was

the location where the confidential informant was waiting to purchase drugs as part

of the controlled buy. Based upon the information gained from the two controlled

buys, she obtained a search warrant for the apartment where Barnes was staying.

The search warrant was executed by the SWAT team the next day, on September

21st. Taczak testified that she interviewed Barnes at the location of the search and

that Barnes admitted he had sold drugs for Domonique Brown a few times to make

some money. She also testified that during the search Barnes stated that if

anything illegal was found it belonged to Brown.

{¶6} Steven Livingston, the confidential informant assisting in the

controlled buys, testified that he planned to purchase either heroin or fentanyl from

Barnes at the Certified Station on September 19, 2018, but Barnes texted him and

told him he had been pulled over and said to “hold on.” Livingston testified that

someone named Terrill Nesbit then showed up instead and sold him drugs.

Livingston testified that he was also involved in the controlled buy that took place
Ross App. No. 19CA3687 5

the next day, on September 20, 2018. He testified that he either texted or called

Barnes and then met him at the Certified Station and purchased “fentanyl heroin”

with marked funds. He also testified that he had had contact with Barnes a couple

of times a week in September of 2018 and that Barnes was residing on Eastern

Avenue.

{¶7} Detective Ben Rhoads testified that he was also involved in the

controlled buys and the search of the apartment located at 799 Eastern Avenue. He

testified that when he made entry into the apartment only Barnes was present. He

testified that upon entry he noted digital scales with white residue on them as well

as gloves on the kitchen table, in plain view. He also immediately saw what he

knew to be a “kilo press” that was mounted to the wall between the kitchen and the

living room. He explained that a kilo press “condenses a powder into a brick form

so that you can transport it more easily.” He further testified that bags of drugs

were found in a Lazy Susan in the kitchen, a bottle of pills was found in a cereal

box sitting on top of the refrigerator, and the marked funds from the controlled buy

conducted the previous day were found in Barnes’ wallet. Finally, he testified that

at the end of the search Barnes took multiple bags of clothes and shoes, most of

which came from the bedroom, as well as an Xbox that was in the living room.

{¶8} Sergeant John Silvey also testified regarding his involvement with the

controlled buys and the search. He testified that he searched the nightstand located
Ross App. No. 19CA3687 6

in the bedroom of the apartment and found a baggy containing a powdered

substance. He also testified that he saw a large kilo press and explained that it can

be used to press powder into tablets.

{¶9} Hans Fischer testified as well. He testified that the apartment in

question had been rented to Char Barnes, Barnes’ mother. He testified that he had

only seen Barnes there once or twice, that he had not seen any extra cars parked in

the lot, and he had not noticed anyone staying overnight. However, he also

testified that he was not there all the time and that he had several different

properties to manage. During his testimony he reviewed the statement he gave to

police on the day of the search, which indicated he had stated he had seen Barnes

at the apartment for a few weeks. He also testified he didn’t remember seeing

Domonique Brown at the apartment but qualified his testimony by stating he is

very busy and doesn’t see everyone that comes and goes.

{¶10} Finally, Krystal Soles and Laurel Heinit from BCI testified. They

testified that the substances submitted for testing were identified as fentanyl,

heroin, cocaine, six simondium morphine, and xylazine, which is a large animal

tranquilizer. Specifically, the substances submitted for testing that were found in

the apartment consisted of approximately 140.09 grams of heroin and fentanyl,

9.19 grams of heroin and fentanyl, 0.26 grams of heroin and fentanyl, 0.13 grams

of fentanyl, and 38.40 grams of cocaine, six simondium morphine, heroin and
Ross App. No. 19CA3687 7

fentanyl in the form of 335 “singly scored round tablets.” After presenting the

testimony of the forensic scientists the State rested its case and admitted its

exhibits.

{¶11} Thereafter, counsel for Barnes made a Crim.R. 29 motion for acquittal

which was denied by the trial court. The defense then went forward with its case,

presenting the testimony of Charlease Barnes (Barnes’ mother), Ashley Shears

(Barnes’ girlfriend), and Barnes himself. Charlease Barnes testified that she had

not been living at her apartment for about two months at the time it was raided.

She explained that Domonique Brown, her friend’s son, was living there and

paying her rent. She testified that Barnes only used the apartment on occasion

when he was in town to visit his daughter. She stated that if he spent the night he

would sleep on the couch and that he didn’t keep any of his belongings there. She

claimed during her testimony that Brown’s clothes were still at her apartment when

she returned to it and that her landlord was present when he packed them up. She

admitted during her testimony that she had prior convictions for forgery, theft, and

felonious assault.

{¶12} Ashley Shears testified that her understanding regarding the

apartment was that Barnes’ mother had moved out and that Brown was living

there. She testified that she lived in Mansfield and that because Barnes didn’t have

a vehicle, she would drive him to Chillicothe to visit his daughter. She explained
Ross App. No. 19CA3687 8

that she would sometimes stay overnight with Barnes in his mother’s apartment,

and that on those occasions they would sleep in the bedroom.

{¶13} Finally, Barnes testified on his own behalf. He admitted during his

testimony that he had been previously incarcerated for robbery and that while he

was out on probation he was convicted of felony possession of drugs and was

returned to prison. He testified that he had recently been paroled to his father’s

house in Columbus but that all of his belongings were at Shears’ house in

Mansfield. He testified that he had a drug addiction and admitted to selling drugs

to Steven Livingston on September 19, 2018. He testified that he cooperated

during the search and that he had no knowledge of the drugs found in the

apartment because he didn’t live there. He denied seeing scales, gloves, and

baggies on the kitchen table and testified that he thought the kilo press mounted on

the wall was a tire jack. He also denied telling Detective Taczak that he had sold

drugs for Brown a few times. He further testified that the bags of clothing he

removed from the apartment belonged to Brown and that he only removed them

because he was told to.

{¶14} After closing arguments the jury was given instructions which

included instructions on both actual and constructive possession and complicity.

After deliberations the jury returned not guilty verdicts on counts four and five but

returned guilty verdicts on counts one, two and three. With regard to count one,
Ross App. No. 19CA3687 9

the jury specifically found that the amount of heroin possessed by Barnes was

equal to or exceeded 100 grams of heroin. Further, with respect to count two, the

jury specifically found that the amount of cocaine possessed by Barnes exceeded

27 grams but was less than 100 grams.

{¶15} The trial court ultimately sentenced Barnes to an eleven-year prison

term on count one, which constituted a maximum, mandatory sentence. It further

sentenced Barnes to a mandatory six-year prison term on count two and a twelve-

month prison term on count three. The trial court ordered all three prison terms to

be served consecutively for an aggregate prison term of eighteen years. Appellant

thereafter filed his timely appeal, setting forth three assignments of error for our

review.

ASSIGNMENTS OF ERROR

I. “MR. BARNES’ CONVICTION FOR POSSESSION OF
HEROIN AND POSSESSION OF COCAINE IS NOT
SUPPORTED BY SUFFICIENT EVIDENCE.”

II. “MR. BARNES’ CONVICTIONS FOR POSSESSION OF
DRUGS ARE NOT SUPPORTED BY THE MANIFEST
WEIGHT OF THE EVIDENCE.”

III. “THE TRIAL COURT ERR [SIC] WHEN IT FAILED TO
DETERMINE IF MR. BARNES WAS A MAJOR DRUG
OFFENDER IN THE SENTENCING ENTRY.”
Ross App. No. 19CA3687 10

ASSIGNMENTS OF ERROR I AND II

{¶16} For ease of analysis, we address Barnes’ first two assignments of

error in conjunction with one another. In his first assignment of error, Barnes

contends that his convictions for possession of heroin and cocaine are not

supported by sufficient evidence. In his second assignment of error, Barnes

contends his convictions for possession of drugs are not supported by the manifest

weight of the evidence. Appellant primarily argues under both of these

assignments of error that he did not live at the apartment where the drugs were

found and that he did not actually or constructively possess the drugs. The State

contends, however, that each element of the offenses of possession of heroin and

cocaine were sufficiently proven, and that the record contains “a tremendous

amount of compelling circumstantial evidence that [Barnes] constructively

possessed the drugs found pursuant to the search warrant and that he lived at the

apartment where the drugs were found.” We begin by considering the proper

standard of review when analyzing whether convictions are supported by sufficient

evidence or are against the manifest weight of the evidence.

STANDARD OF REVIEW

{¶17} “When an appellate court concludes that the weight of the evidence

supports a defendant's conviction, this conclusion necessarily includes a finding

that sufficient evidence supports the conviction.” State v. Puckett, 191 Ohio
Ross App. No. 19CA3687 11

App.3d 747, 2010-Ohio-6597, 947 N.E.2d 730, ¶ 34, citing State v. Pollitt, 4th

Dist. Scioto No. 08CA3263, 2010-Ohio-2556, ¶ 15. “ ‘ “Thus, a determination that

[a] conviction is supported by the weight of the evidence will also be dispositive of

the issue of sufficiency.” ’ ” Puckett at ¶ 34, quoting State v. Lombardi, 9th Dist.

Summit No. 22435, 2005-Ohio-4942, ¶ 9, in turn quoting State v. Roberts, 9th

Dist. Lorain No. 96CA006462, 1997 WL 600669 (Sept. 17, 1997). Therefore, we

first consider whether Appellant's conviction was against the manifest weight of

the evidence.

{¶18} “In determining whether a criminal conviction is against the manifest

weight of the evidence, an appellate court must 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.” State v. Brown, 4th Dist. Athens No. 09CA3, 2009-Ohio-5390,

¶ 24, citing State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541. “[A]

reviewing court may not reverse a conviction when there is substantial evidence

upon which the trial court could reasonably conclude that all elements of the

offense have been proven beyond a reasonable doubt.” State v. Johnson, 58 Ohio

St.3d 40, 42, 567 N.E.2d 266 (1991), citing State v. Eskridge, 38 Ohio St.3d 56,

526 N.E.2d 304, paragraph two of the syllabus (1988).
Ross App. No. 19CA3687 12

{¶19} “Even in acting as a thirteenth juror we must still remember that 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. Hoskins, 4th Dist. Adams No.

19CA1093, 2019-Ohio-4842, ¶ 20, citing State v. Frazier, 73 Ohio St.3d 323, 339,

652 N.E.2d 1000, citing State v. Grant, 67 Ohio St.3d 465, 477, 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.” Seasons Coal Co. v. Cleveland, 10 Ohio

St.3d 77, 80, 461 N.E.2d 1273 (1984) (per curiam). Thus, we will only interfere if

the fact finder clearly lost its way and created a manifest miscarriage of justice.

Moreover, “[t]o reverse a judgment of a trial court on the weight of the evidence,

when the judgment results from a trial by jury, a unanimous concurrence of all

three judges on the court of appeals panel reviewing the case is required.”

Thompkins at paragraph four of the syllabus, construing and applying Section

3(B)(3), Article IV of the Ohio Constitution.

LEGAL ANALYSIS

{¶20} Here, Barnes was convicted of two counts of drug possession and one

count of drug trafficking. More specifically, Barnes was convicted of possession

of heroin in an amount equal to or exceeding 100 grams and possession of cocaine

in an amount equal to or exceeding 27 grams, but less than 100 grams. He does
Ross App. No. 19CA3687 13

not challenge his trafficking conviction. Further, he does not contest the weight or

analysis of the drugs that were found during the search of the apartment. Instead,

he only argues on appeal that he did not possess the drugs that were found. R.C.

2925.11 governs drug possession offenses and provides in section (A) that “[n]o

person shall knowingly obtain, possess, or use a controlled substance or a

controlled substance analog.” This Court has previously observed with regard to

the “knowingly” element of the offense as follows:

“ ‘ “A person acts knowingly, regardless of his purpose, when he is
aware that his conduct will probably cause a certain result or will
probably be of a certain nature. A person has knowledge of
circumstances when he is aware that such circumstances probably
exist.” ’ ”

State v. Bailey, 4th Dist. Ross No. 14CA3461, 2015-Ohio-5483, ¶ 85, quoting State

v. Wickersham, 4th Dist. Meigs No. 13CA10, 2015-Ohio-2756, ¶ 30, quoting R.C.

2901.22(B).

{¶21} With respect to the possession of heroin, R.C. 2925.11(C)(6)(f)

provides as follows:

(C) Whoever violates division (A) of this section is guilty of one of the
following:
***
(6) If the drug involved in the violation is heroin or a compound,
mixture, preparation, or substance containing heroin, whoever violates
division (A) of this section is guilty of possession of heroin. The
penalty for the offense shall be determined as follows:
***
(f) If the amount of the drug involved equals or exceeds one thousand
unit doses or equals or exceeds one hundred grams, possession of
Ross App. No. 19CA3687 14

heroin is a felony of the first degree, the offender is a major drug
offender, and the court shall impose as a mandatory prison term a
maximum first degree felony mandatory prison term.

Further, with respect to possession of cocaine R.C. 2925.11(C)(4)(e) provides as

follows:

(C) 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:
***
(e) If the amount of the drug involved equals or exceeds twenty-seven
grams but is less than one hundred grams of cocaine, possession of
cocaine is a felony of the first degree, and the court shall impose as a
mandatory prison term a first degree felony mandatory prison term.

{¶22} This Court has previously observed that “ ‘possession’ is defined as

‘having control over a thing or substance, but may not be inferred solely from mere

access to the thing or substance through ownership or occupation of the premises

upon which the thing or substance is found.’ ” State v. Gavin, 4th Dist. Scioto

No.13CA3592, 2015-Ohio-2996, ¶ 35, quoting R.C. 2925.01(K). “ ‘Possession

may be actual or constructive.’ ” Gavin at ¶ 35, quoting State v. Moon, 4th Dist.

Adams No. 08CA875, 2009-Ohio-4830, ¶ 19, citing State v. Butler, 42 Ohio St.3d

174, 175, 538 N.E.2d 98 (1989) (“[t]o constitute possession, it is sufficient that the

defendant has constructive possession”).
Ross App. No. 19CA3687 15

{¶23} “ ‘ “Actual possession exists when the circumstances indicate that an

individual has or had an item within his immediate physical possession.” ’ ”

Gavin, supra, at ¶ 36, quoting State v. Kingsland, 177 Ohio App.3d 655, 2008-

Ohio-4148, 895 N.E.2d 633, ¶ 13 (4th Dist.), in turn quoting State v. Fry, 4th Dist.

Jackson No. 03CA26, 2004-Ohio-5747, ¶ 39. As we explained in Gavin, supra,

“ ‘[c]onstructive possession exists when an individual knowingly exercises

dominion and control over an object, even though that object may not be within his

immediate physical possession.’ ” Gavin, supra, at ¶ 36, quoting State v.

Hankerson, 70 Ohio St.2d 87, 434 N.E.2d 1362, syllabus (1982); State v. Brown,

4th Dist. Athens No. 09CA3, 2009-Ohio-5390, ¶ 19. For constructive possession

to exist, the State must show that the defendant was conscious of the object's

presence. Gavin, supra; Hankerson at 91; Kingsland at ¶ 13. “A defendant's mere

presence in an area where drugs are located does not conclusively establish

constructive possession.” State v. Markin, 4th Dist. Pickaway No. 13CA22, 2014-

Ohio-3630, ¶ 29, citing State v. Williams, 4th Dist. Ross No. 03CA2736, 2004-

Ohio-1130, ¶ 25; State v. Cola, 77 Ohio App.3d 448, 450, 602 N.E.2d 730 (11th

Dist.1991); Cincinnati v. McCartney, 30 Ohio App.2d 45, 48, 281 N.E.2d 855 (1st

Dist.1971). However, as explained in Markin, “a defendant's proximity to drugs

may constitute some evidence of constructive possession.” Markin at ¶ 29, citing

Williams at ¶ 25. Thus, a defendant’s “[m]ere presence in the vicinity of drugs,
Ross App. No. 19CA3687 16

coupled with another factor probative of dominion or control over the contraband,

may establish constructive possession.” Markin at ¶ 29, citing State v. Fugate, 4th

Dist. Washington No. 97CA2546, 1998 WL 729221, *7. It is under this

framework that Barnes argues he was simply present when the officers executed

the search warrant in the apartment. He further claims that it was not his

apartment, that he did not live there, and that he had no knowledge of drugs being

present there.

{¶24} In Wickersham, supra, we noted the well-established holding,

however, that “a defendant may be convicted solely on the basis of circumstantial

evidence.” Id. at 9; State v. Nicely, 39 Ohio St.3d 147, 151, 529 N.E.2d 1236

(1988). “Circumstantial evidence and direct evidence inherently possess the same

probative value.” Jenks, paragraph one of the syllabus. “Circumstantial evidence

is defined as ‘[t]estimony not based on actual personal knowledge or observation

of the facts in controversy, but of other facts from which deductions are drawn,

showing indirectly the facts sought to be proved. * * * ’ ” Nicely, supra, at 150,

quoting Black's Law Dictionary (5 Ed.1979) 221. Both dominion and control, and

whether a person was conscious of the object's presence may be established

through circumstantial evidence. Gavin, supra; Brown, supra, at ¶ 19. “Moreover,

two or more persons may have joint constructive possession of the same object.”

Id.
Ross App. No. 19CA3687 17

{¶25} In the case sub judice, Barnes contends the State failed to prove that

he either actually or constructively possessed the heroin and cocaine that was

found hidden in the cabinets, a cereal box, and a nightstand of the apartment. In

support of his contention, Barnes argues that Domonique Brown was subleasing

the apartment from Charlease Barnes and that he only stopped in there on occasion

to have visitation with his daughter. Barnes claims that during the occasions when

he would spend the night he always slept on the couch and that he never stored any

of his belongings there. He further argues that he had not noticed the digital scales

with residue, plastic gloves or baggies sitting on the kitchen table, and that he

thought the kilo press that was mounted to the wall was a tire jack.

{¶26} The testimony of several law enforcement officers, however,

indicated that the apartment was very small and that the scales, gloves, baggies,

and kilo press were in plain view. Furthermore, testimony introduced by the State

indicates that a kilo press is used to condense powder into tablets. There were 335

tablets containing a mixture of cocaine, heroin, fentanyl and six simondium

morphine found hidden in the apartment. Further, Barnes conceded at trial and

concedes on appeal that he sold fentanyl heroin to Steven Livingston, the

confidential informant, on September 20, 2018, the day prior to the execution of

the search warrant. Detective Taczak testified that on the day of the controlled buy

she observed Barnes exit the apartment at issue and get into a vehicle to drive to
Ross App. No. 19CA3687 18

the Certified Station to sell fentanyl heroin to the confidential informant. As the

record demonstrates, fentanyl heroin is the drug that was found in such large

quantities in the apartment that led to Barnes being charged as a major drug

offender.

{¶27} Barnes claims that he sold drugs to the confidential informant out of

his personal stash and that he had no knowledge that there were other drugs in the

apartment. However, Barnes’ denials conflict with other testimony in the record

indicating that during the search Barnes admitted to law enforcement that he had

sold drugs for Brown in the past in order to make money. There is also testimony

in the record that Barnes stated during the search that if anything illegal was found

it belonged to Brown, not him, which could be interpreted to indicate Barnes knew

that something illegal might be found. Finally, the State introduced testimony

from law enforcement indicating that when Barnes left the apartment after the

search he took several bags of clothing and shoes which he removed from the

bedroom, as well as an Xbox that was located in the living room. Additionally,

although the property manager testified that he had not noticed Barnes living there

and had not noticed any extra cars on the lot, he conceded that he isn’t there all the

time. Furthermore, Barnes testified that he did not own a vehicle at the time of the

search. Thus, the property manager’s testimony offers little in support of Barnes’

arguments.
Ross App. No. 19CA3687 19

{¶28} In conducting a manifest weight review, we are guided by the

presumption that the trier of fact “ ‘is best able to view the witnesses and observe

their demeanor, gestures, and voice inflections, and use these observations in

weighing the credibility of proffered testimony.’ ” Williams, supra, quoting

Seasons Coal Co. v. Cleveland, supra, at 80. Here, the jury was instructed as to

the legal definitions of direct evidence, circumstantial evidence, actual possession,

constructive possession, and credibility. The jury was further instructed as to the

weight of the evidence and they were free to believe all, part, or none of any

witness's testimony. State v. Markin at ¶ 41. Barnes’ arguments on appeal

essentially amount to a challenge to the jury’s credibility determinations.

However, as previously stated, credibility is generally an issue for the trier of fact.

Additionally, just because the jury apparently resolved the conflicting testimony in

favor of the prosecution does not mean that Barnes’ convictions are against the

manifest weight of the evidence. See generally State v. Pyles, 4th Dist. Scioto No.

17CA3790, 2018-Ohio-4034, ¶ 65. Further, “an appellate court will leave the

issues of weight and credibility of the evidence to the fact-finder, as long as a

rational basis exists in the record for its decision.” Id., citing State v. Picklesimer,

4th Dist. Pickaway No. 11CA9, 2012-Ohio-1282, ¶ 24. Accord State v. Howard,

4th Dist. Ross No. 07CA2948, 2007-Ohio-6331, ¶ 6.
Ross App. No. 19CA3687 20

{¶29} After examining the record, and based upon the foregoing, we find the

State presented substantial evidence upon which the trier of fact reasonably could

conclude beyond a reasonable doubt that all of the essential elements of the crimes

for which Barnes was convicted had been established. Further, in light of the

above evidence, we cannot find the trier of fact somehow lost its way or that the

evidence weighed heavily against Barnes’ convictions. Accordingly, we find that

Barnes’ convictions were not against the manifest weight of the evidence. Thus,

we necessarily also conclude that sufficient evidence supports his convictions. We

therefore overrule Barnes’ first and second assignments of error.

ASSIGNMENT OF ERROR III

{¶30} In his third assignment of error, Barnes contends the trial court erred

when it failed to determine if he was a major drug offender in the sentencing entry.

Barnes argues that although the trial court sentenced him to a mandatory eleven-

year prison term, which is the maximum sentence possible for a first-degree

felony, the trial court failed to indicate whether he “was or was not given a major

drug offender specification.” Appellant thus argues the sentencing entry is unclear

and the matter should be remanded for the trial court to correct the sentencing

entry to correspond with the convictions. The State concedes that the trial court

did not make a specific major drug offender finding in the sentencing entry,

however, the State argues that because the trial court properly sentenced Barnes to
Ross App. No. 19CA3687 21

a mandatory, maximum sentence of eleven years, the sentence is not contrary to

law. The State also draws to our attention the fact that the jury found Barnes guilty

of this specification and the trial court made the pronouncement during disposition.

The State thus argues that, at most, the matter should be remanded to the trial court

to correct the clerical error of omitting this finding from the sentencing entry.

Standard of Review

{¶31} R.C. 2953.08(G)(2) defines appellate review of felony sentences and

provides, in relevant part, as follows:

The court hearing an appeal under division (A), (B), or (C) of this
section shall review the record, including the findings underlying the
sentence or modification given by the sentencing court. The appellate
court may increase, reduce, or otherwise modify a sentence that is
appealed under this section or may vacate the sentence and remand the
matter to the sentencing court for resentencing. The appellate court's
standard for review is not whether the sentencing court abused its
discretion. The appellate court may take any action authorized by this
division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court's findings
under division (B) or (D) of section 2929.13, division (B)(2)(e) or
(C)(4) of section 2929.14, or division (I) of section 2929.20 of the
Revised Code, whichever, if any, is relevant;

(b) That the sentence is otherwise contrary to law.

{¶32} “ ‘[A]n appellate court may vacate or modify a felony sentence on

appeal only if it determines by clear and convincing evidence that the record does

not support the trial court's findings under relevant statutes or that the sentence is

otherwise contrary to law.’ ” State v. Pierce, 4th Dist. Pickaway No. 18CA4,
Ross App. No. 19CA3687 22

2018-Ohio-4458 ¶ 7, quoting State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-

1002, 59 N.E.3d 1231, ¶ 23. This is a deferential standard. Id. at 23. Furthermore,

“appellate courts may not apply the abuse-of-discretion standard in sentencing-

term challenges.” Id. at ¶ 23. Additionally, although R.C. 2953.08(G) does not

mention R.C. 2929.11 or 2929.12, the Supreme Court of Ohio has determined that

the same standard of review applies to findings made under those statutes. Id. at

¶ 23 (stating that “it is fully consistent for appellate courts to review those

sentences that are imposed solely after consideration of the factors in R.C. 2929.11

and 2929.12 under a standard that is equally deferential to the sentencing court,”

meaning that “an appellate court may vacate or modify any sentence that is not

clearly and convincingly contrary to law only if the appellate court finds by clear

and convincing evidence that the record does not support the sentence”).

{¶33} “Clear and convincing evidence is that measure or degree of proof

which is more than a mere ‘preponderance of the evidence,’ but not to the extent of

such certainty as is required ‘beyond a reasonable doubt’ in criminal cases, and

which will produce in the mind of the trier of facts a firm belief or conviction as to

the facts sought to be established.” State v. Marcum at ¶ 22, quoting Cross v.

Ledford, 161 Ohio St. 469, 120 N.E.2d 118, paragraph three of the syllabus (1954).

{¶34} Further, as we observed in State v. Pierce, supra, the Eighth District

Court of Appeals has noted as follows:
Ross App. No. 19CA3687 23

It is important to understand that the “clear and convincing” standard
applied in R.C. 2953.08(G)(2) is not discretionary. In fact, R.C.
2953.08(G)(2) makes it clear that “[t]he appellate court's standard for
review is not whether the sentencing court abused its discretion.” As a
practical consideration, this means that appellate courts are prohibited
from substituting their judgment for that of the trial judge. It is also
important to understand that the clear and convincing standard used by
R.C. 2953.08(G)(2) is written in the negative. It does not say that the
trial judge must have clear and convincing evidence to support its
findings. Instead, it is the court of appeals that must clearly and
convincingly find that the record does not support the court's findings.
In other words, the restriction is on the appellate court, not the trial
judge. This is an extremely deferential standard of review.

Pierce, supra, at ¶ 8, quoting State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-

Ohio-1891, 992 N.E.2d 453, ¶ 20-21.

Legal Analysis

{¶35} Here, as set forth above, Barnes argues this matter must be remanded

to the trial court so that the court can correct the sentencing entry to indicate that

Barnes was found to be a major drug offender. In support of his argument, Barnes

cites R.C. 2941.1410(C), which provides that “[t]he court shall determine the issue

of whether an offender is a major drug offender.”1 The indictment charged Barnes

with first-degree felony possession of heroin and contained a major drug offender

specification which alleged Barnes possessed an amount equal to or exceeding 100

grams. The record before us indicates that the jury essentially determined Barnes

1
The current version of R.C. 2941.1410 went into effect on October 31, 2018 and is not applicable to the present
case. Instead, the prior version of R.C. 2941.1410 with an effective date of March 23, 2000, applies. The prior
version also provides that the trial court shall determine the issue of whether an offender is a major drug offender,
but it does so in section (B), rather than section (C).
Ross App. No. 19CA3687 24

was a major drug offender by virtue of the fact that it specifically found he

possessed 100 or more grams of heroin on the verdict form. Furthermore, the trial

court acknowledged as much during the sentencing hearing, explaining that it was

required to impose a mandatory, eleven-year prison term on that count.

{¶36} Although R.C. 2941.1410 provides that the trial court shall determine

whether an offender is a major drug offender, it does not state that such finding

must be contained in the sentencing entry. Additionally, R.C. 2929.19, which

governs sentencing hearings, and R.C. 2929.14, which governs prison terms,

likewise fail to require that a major drug offender finding be included in a

sentencing entry. Furthermore, as set forth above, R.C. 2925.11(C)(6)(f) provides

as follows:

(C) Whoever violates division (A) of this section is guilty of one of the
following:
***
(6) If the drug involved in the violation is heroin or a compound,
mixture, preparation, or substance containing heroin, whoever violates
division (A) of this section is guilty of possession of heroin. The
penalty for the offense shall be determined as follows:
***
(f) If the amount of the drug involved equals or exceeds one thousand
unit doses or equals or exceeds one hundred grams, possession of
heroin is a felony of the first degree, the offender is a major drug
offender, and the court shall impose as a mandatory prison term a
maximum first degree felony mandatory prison term.

Thus, an offender is statutorily deemed a major drug offender if the amount of

heroin possessed equals or exceeds one hundred grams. Here the jury’s finding
Ross App. No. 19CA3687 25

that Barnes possessed 100 or more grams of heroin results in Barnes being

statutorily determined to be a major drug offender under R.C. 2925.11(C)(6)(f).

See State v. Dues, 8th Dist. Cuyahoga No. 100861, 2014-Ohio-5276, 24 N.E.3d

751, ¶ 50 (explaining that once the jury found Dues guilty of possessing and

trafficking over 100 grams of cocaine, the major drug offender determination was

automatic).

{¶37} In State v. Dues, the court discussed the fact that “R.C. 2941.1410(B)

[now (C)], as worded, requires the trial court to determine the issue of whether an

offender is a MDO.” State v. Dues at ¶ 49. The Dues court further notes that

“[t]his appears to be inconsistent with the principle that elements necessary for a

penalty enhancement must be found by the trier of fact, not the court.” Id., citing

State v. Fort, 8th Dist., 2014-Ohio-3412, 17 N.E.3d 1172, ¶ 28, in turn citing

Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).

The Dues court additionally noted its prior observation in Fort, supra, that the

United States Supreme Court's decision in Alleyne appears to lead to the

conclusion that Ohio's major drug offender statutes could be constitutionally infirm

where a trial court makes factual determinations to enhance a defendant's sentence.

Dues at ¶ 49, citing Fort at ¶ 32. However, the Dues court found that because the

jury found Dues was a major drug offender based upon its finding that Dues

possessed over 100 grams of cocaine, the case did not have an “Alleyne problem.”
Ross App. No. 19CA3687 26

Dues at ¶ 50. The same reasoning would apply here, as the jury made the specific

finding regarding the quantity of heroin possessed by Barnes, not the trial court.

{¶38} Moreover, in State v. Pena, 10th Dist. Franklin No. 06AP-688, ¶ 15,

the court explained that the portions of R.C. 2929.14 requiring judicial fact-finding

before imposition of additional penalties for major drug offender specifications had

been severed from the statute by State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856,

845 N.E.2d 470. Pena at ¶ 15, citing State v. Foster at ¶ 97 (“We also excise R.C.

2929.14(D)(2)(b) and (D)(3)(b), which require findings for repeat violent offenders

and major drug offenders.”). Taking all of this together and applying it to the

record presently before us, we conclude that Barnes was properly found guilty of

the major drug offender specification contained in the indictment, in light of the

jury’s finding that he was guilty of possessing an amount of heroin equal to or

exceeding 100 grams. Further, because R.C. 2929.11(C)(6)(f), by its terms,

classified Barnes as a major drug offender, the trial court was required to impose a

mandatory, maximum prison sentence of eleven years, which it did. Furthermore,

it arguably would have been error for the trial court to make the major drug

offender determination, in light of Foster, supra, as interpreted by Pena, supra.

Moreover, we have found nothing, and Barnes has cited us to nothing that requires

the trial court to include a specific determination in the sentencing entry regarding

a defendant’s classification as a major drug offender. Nor has Barnes provided any
Ross App. No. 19CA3687 27

legal support for the proposition that the failure to include major drug offender

language in a sentencing entry results in the sentence being contrary to law or

resulting in reversible error on appeal.

{¶39} In light of the foregoing, we cannot conclude that the trial court erred

in sentencing Barnes, or that his sentence is otherwise contrary to law. Thus, we

find no merit to Barnes’ third assignment of error. Accordingly, it is overruled.

Having found no merit in any of the assignments of error raised by Barnes, the

judgment of the trial court is affirmed.

JUDGMENT AFFIRMED.
Ross App. No. 19CA3687 28

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 Ross
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, J. & Hess, A.J., concur in Judgment and Opinion.
For the Court,

__________________________________
Jason P. Smith
Presiding 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.