State v. Carpenter

[Cite as State v. Carpenter, 2021-Ohio-821.]

COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
: Case No. 20-CA-11
:
JEFFREY P. CARPENTER :
:
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas, Case No. 19 CR 802

JUDGMENT: AFFIRMED

March 17, 2021
DATE OF JUDGMENT ENTRY:

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

WILLIAM C. HAYES JAMES A. ANZELMO
LICKING COUNTY PROSECUTOR 446 Howland Drive
PAULA M. SAWYERS Gahanna, OH 43230
Newark, OH 43055
[Cite as State v. Carpenter, 2021-Ohio-821.]

Delaney, J.

{¶1} Appellant Jeffrey P. Carpenter appeals from the January 9, 2020 Judgment

Entry of the Licking County Court of Common Pleas. Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} This case arose on August 2, 2019 when appellant sold 1.285 grams of

methamphetamine to a confidential informant during a controlled buy.

{¶3} Jarrod Conley is an agent with the Central Ohio Drug Enforcement Task

Force. On August 2, 2019, one of his confidential informants called him and claimed he

could buy an ounce of methamphetamine from appellant. Conley had worked with this

informant in the past. Customarily, an informant contacts law enforcement because they

know someone they can buy drugs from. Sometimes informants have their own criminal

charges pending or they are compensated for their efforts. In this case, Conley’s

informant would be paid if he made a successful buy. There was no offer to help the

informant with any pending criminal charges. The informant knew appellant because they

had been in jail together. The informant cited his own drug addiction as his reason for

cooperating with law enforcement against drug dealers.

{¶4} Conley described the protocol for a controlled buy. The informant provides

the target, and a transaction is arranged between informant and target in a recorded

phone call. Agents meet the informant at a secure location and thoroughly search him or

her to ensure they have no contraband on their person. The informant is fitted with

multiple recording devices and at least one transmits the conversation in real time as

agents listen. The informant is given “safe words” to use if they need agents to intervene.

The informant is provided with an amount of cash which has been photocopied or
[Cite as State v. Carpenter, 2021-Ohio-821.]

otherwise had the serial numbers recorded. The informant is transported to a location

near the buy. After the buy is accomplished, the informant is transported back to the

secure location and searched again; the purchased drugs are seized and the informant

makes oral and written statements regarding what happened throughout the transaction.

{¶5} The protocol was followed in the instant case. The informant called Conley

in the morning and said he could buy an ounce of methamphetamine from appellant. That

day, he was searched, fitted with two recording devices, and given photocopied money.

Conley transported the informant to the buy location and dropped him off near appellant’s

house. Another agent, Detective Boerstler, monitored the informant as he approached

the house.

{¶6} The informant was in the house for “quite a while” in Conley’s estimation.

Although he planned to buy an ounce of methamphetamine from appellant, he settled for

less because he would have had to wait for a delivery of more drugs. The transmitting

device malfunctioned and stopped recording before the transaction was completed but a

separate audio recorder picked up the entire conversation.

{¶7} Conley met the appellant after the buy and transported him to the secure

location to be searched. The informant turned over 1.285 grams of methamphetamine,

packaged in three separate plastic bags, which he purchased with a portion of the money

he was given. This was less than the one-ounce amount discussed. The informant

therefore had cash remaining which he returned to Conley. The methamphetamine was

confiscated and sent to the crime lab.
[Cite as State v. Carpenter, 2021-Ohio-821.]

{¶8} The informant was compensated for his role in the controlled buy. Appellant

was not approached by law enforcement until around three months after the transaction

to protect the informant’s identity.

{¶9} The informant testified at trial and corroborated Conley’s testimony. He

contacted Conley regarding a buy from appellant. Conley searched him, gave him money

and recording devices, and dropped him off near appellant’s residence. The informant

bought less than an ounce of methamphetamine from appellant, which he measured on

scales he brought with him. After the transaction, he gave the drugs and remaining cash

to Conley, was searched again, and provided a statement about the purchase.

{¶10} Detective Boerstler also testified for appellee, explaining this was Conley’s

informant and Conley “handled” him. Boerstler’s role was to follow him and take a

separate position allowing him to watch the residence while the transaction took place.

{¶11} The parties stipulated to the testimony of appellee’s expert in forensic drug

testing. The test results indicated the substance was 1.285 grams of methamphetamine,

a Schedule II substance.

{¶12} Appellant was charged by indictment with one count of aggravated

trafficking in methamphetamine pursuant to R.C. 2925.03(A)(1)(C)(1)(a), a felony of the

fourth degree. Appellant entered a plea of not guilty and the matter proceeded to trial by

jury. Appellant was found guilty as charged and was sentenced to a prison term of 18

months.

{¶13} Appellant now appeals from the January 9, 2020 Judgment Entry of

conviction and sentence of the Licking County Court of Common Pleas.

{¶14} Appellant raises five assignments of error:
[Cite as State v. Carpenter, 2021-Ohio-821.]

ASSIGNMENTS OF ERROR

{¶15} “I. THE TRIAL COURT ERRED BY RULING, SUA SPONTE, THAT

EVIDENCE OF AN INFORMANT’S CRIMINAL CHARGE WAS INADMISSIBLE, IN

VIOLATION OF CARPENTER’S RIGHT TO DUE PROCESS, UNDER THE FIFTH AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND

SECTIONS 1 & 16, ARTICLE I OF THE OHIO CONSTITUTION, AND HIS RIGHT TO A

FAIR TRIAL, AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED

STATES CONSTITUTION AND SECTION 16, ARTICLE I OF THE OHIO

CONSTITUTION.”

{¶16} “II. THE TRIAL COURT PLAINLY ERRED BY NOT PROVIDING A JURY

INSTRUCTION ON WHAT THE BULK AMOUNT IS FOR METHAMPHETAMINE, IN

VIOLATION OF CARPENTER’S RIGHT TO DUE PROCESS, UNDER THE FIFTH AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND

SECTIONS 1 & 16, ARTICLE I OF THE OHIO CONSTITUTION, AND HIS RIGHT TO A

FAIR TRIAL, AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED

STATES CONSTITUTION AND SECTION 16, ARTICLE I OF THE OHIO

CONSTITUTION.”

{¶17} “III. CARPENTER’S CONVICTION IS BASED ON INSUFFICIENT

EVIDENCE, IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND

SECTIONS 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION.”

{¶18} “IV. CARPENTER’S CONVICTION IS AGAINST THE MANIFEST WEIGHT

OF THE EVIDENCE IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH
[Cite as State v. Carpenter, 2021-Ohio-821.]

AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND

SECTIONS 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION.”

{¶19} “V. CARPENTER RECEIVED INEFFECTIVE ASSISTANCE OF

COUNSEL, IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES

CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.”

ANALYSIS

I.

{¶20} In his first assignment of error, appellant argues the trial court should not

have ruled, sua sponte, that the informant’s pending misdemeanor charge of drug

paraphernalia was inadmissible. We disagree.

{¶21} Upon cross-examination, the informant acknowledged he was recently

jailed for a drug paraphernalia offense and appellant was briefly jailed with him. Sua

sponte, the trial court called the parties to the bench and ruled that testimony regarding

the informant’s misdemeanor charge was inadmissible. The trial court did not strike the

testimony from the record or instruct the jury to disregard the testimony.

{¶22} Appellant argues the trial court’s sua sponte “objection” denied him the

opportunity to present a complete defense. Having reviewed the trial court’s reasons for

excluding the evidence, however, we agree that testimony regarding a misdemeanor drug

paraphernalia charge was not admissible for impeachment purposes. Evid.R. 404(B);

Evid.R. 609.

{¶23} Appellant cites State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084,

854 N.E.2d 1038, at ¶ 104, in support of his argument that a witness’s pending charges
[Cite as State v. Carpenter, 2021-Ohio-821.]

may be admissible to prove bias. However, we note Drummond concludes that any error

in the trial court’s decision denying cross-examination is harmless error. Id., ¶ 105.

{¶24} Appellant asserts the trial court’s “objection” rose to the level of plain error

because defense trial counsel failed to object to the ruling. Plain error under Crim.R.

52(B) consists of an obvious error or defect in the trial proceedings that affects a

substantial right. State v. Lindsey, 87 Ohio St.3d 479, 482, 721 N.E.2d 995 (2000).

Pursuant to Crim.R. 52(B), “plain errors or defects affecting substantial rights may be

noticed although they were not brought to the attention of the court.” The rule places

several limitations on a reviewing court's determination to correct an error despite the

absence of timely objection at trial: (1) “there must be an error, i.e., a deviation from a

legal rule,” (2) “the error must be plain,” that is, an error that constitutes “an ‘obvious’

defect in the trial proceedings,” and (3) the error must have affected “substantial rights”

such that “the trial court's error must have affected the outcome of the trial.” State v. Dunn,

5th Dist. No. 2008-CA-00137, 2009-Ohio-1688, 2009 WL 943968, internal citation

omitted. The decision to correct a plain error is discretionary and should be made “with

the utmost caution, under exceptional circumstances and only to prevent a manifest

miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978),

paragraph three of the syllabus.

{¶25} In the instant case, the exclusion of the informant’s testimony about his own

pending misdemeanor drug paraphernalia charge did not affect appellant’s substantial

rights. The informant was an admitted drug addict who knew appellant from jail and “the

streets.” No evidence exists that the status of the criminal charge was affected by the

informant’s testimony.
[Cite as State v. Carpenter, 2021-Ohio-821.]

{¶26} Decisions regarding the admissibility of evidence at trial are within the broad

discretion of the trial court and will be upheld absent an abuse of discretion and material

prejudice. State v. Lang, 129 Ohio St.3d 512, 2011–Ohio–4215, 954 N.E.2d 596, ¶ 86.

Considering the limited usefulness and fleeting nature of the drug-paraphernalia

testimony, we conclude the trial court did not abuse its discretion in denying the cross-

examination and appellant did not suffer any material prejudice. See, State v. Whitman,

5th Dist. Stark No. 2017CA00079, 2018-Ohio-2924, ¶ 77, citing State v. Draper, 5th Dist.

Knox No. 05-CA-17, 2006-Ohio-2396, ¶ 16.

{¶27} Appellant’s first assignment of error is overruled.

II.

{¶28} In his second assignment of error, appellant argues the trial court erred in

failing to instruct the jury upon the bulk amount for methamphetamine. We disagree.

{¶29} Jury instructions are within the sound discretion of the trial court, and the

court's decision will not be disturbed on appeal absent an abuse of discretion. State v.

DeMastry, 155 Ohio App.3d 110, 2003–Ohio–5588, 799 N.E.2d 229 (5th Dist.), ¶ 54,

citing State v. Musgrave, 5th Dist. Knox No. 98CA10, 2000 WL 502688 (April 24, 2000),

and State v. Martens, 90 Ohio App.3d 338, 629 N.E.2d 462 (3rd Dist.1993). Jury

instructions must be reviewed as a whole. State v. Coleman, 37 Ohio St.3d 286, 525

N.E.2d 792 (1988).

{¶30} Neither party objected to the jury instructions in the instant case. Crim.R.

30 provides that a party must object to an omission in the court's instructions to the jury

in order to preserve the error for appeal. “A criminal defendant has a right to expect that

the trial court will give complete jury instructions on all issues raised by the evidence.”
[Cite as State v. Carpenter, 2021-Ohio-821.]

State v. Williford, 49 Ohio St.3d 247, 251–252, 551 N.E.2d 1279 (1990). (Citations

omitted). If an objection is not made in accordance with Crim.R. 30, or the defendant fails

to submit a required written jury instruction, Crim.R. 52(B), the plain error doctrine,

applies. State v. Dorsey, 5th Dist. Stark No. 2014CA00217, 2015–Ohio–4659, ¶ 61, citing

Williford, supra, and State v. Gideons, 52 Ohio App.2d 70, 368 N.E.2d 67(8th Dist.1977).

{¶31} Appellant also concedes he did not request orally or in writing the bulk-

amount instruction he now contends should have been given. Accordingly, our review of

the alleged error must proceed under the plain error rule of Crim. R. 52(B). Dorsey, supra,

at ¶ 64; State v. Mowls, 5th Dist. Stark No. 2017CA00019, 2017-Ohio-8712, ¶ 22.

{¶32} Failure to properly instruct a jury is not in most instances structural error,

thus the harmless-error rule of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17

L.Ed.2d 705 (1967) applies; failure to properly instruct the jury does not necessarily

render a trial fundamentally unfair or an unreliable vehicle for determining guilt or

innocence. State v. Bleigh, 5th Dist. Delaware No. 09-CAA-03-0031, 2010-Ohio-1182,

2010 WL 1076253, ¶ 119, citing Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144

L.Ed.2d 35 (1999).

{¶33} Appellant does not explain how the outcome of the trial would have been

different if such an instruction had been given. He was charged with one count of

aggravated drug trafficking (methamphetamine) pursuant to R.C. 2925.03(A)(1)(C)(1)(a),

which prohibits selling or offering to sell methamphetamine, a Schedule II controlled

substance, in an amount “less than bulk.” The “bulk amount” of methamphetamine means

an amount equal to or exceeding three grams. R.C. 2925.01(D)(1)(g). Appellant was
[Cite as State v. Carpenter, 2021-Ohio-821.]

thus charged with selling less than three grams of methamphetamine. The jury was

instructed in pertinent part:

* * * *.

The Defendant is charged with aggravated trafficking in drugs

(methamphetamine), in violation of Ohio Revised Code Section

2925.03(A)(1)(C)(1)(a). Before you can find the Defendant guilty,

you must find beyond a reasonable doubt that on or about the 2nd

day of August, 2019, and in Licking County, Ohio, the Defendant

knowingly sold or offered to sell methamphetamine, a Schedule II

controlled substance, and the amount of the drug equals or is less

than the bulk amount.

* * * *.

{¶34} This language mirrors that of the jury instruction for aggravated drug

trafficking found at 2 Ohio Jury Instructions CR 525.03. The comment to that pattern

instruction states in pertinent part:

* * * *.

R.C. 2925.03(C) establishes a sentencing scheme whereby

the degree of the offense is determined by the amount of the

controlled substance sold or offered for sale. The amount is

expressed in terms of ‘’bulk amount,” grams, or unit doses depending

on the identity of the controlled substance involved. In accordance

with R.C. 2925.03(E) and R.C. 2945.75, if the amount of the

controlled substance involved increases the degree of the offense,
[Cite as State v. Carpenter, 2021-Ohio-821.]

the jury (or the trial judge in a non-jury trial) must determine the

amount of the controlled substance involved at the time of the

offense and, if a guilty verdict is returned, shall return the findings as

part of the verdict.

* * * *.

{¶35} In the instant case, appellant was charged with selling less than the bulk

amount, therefore the finder of fact was not required to make any finding regarding the

amount of methamphetamine sold.

{¶36} Appellant cites State v. Chaffin, 4th Dist. Scioto No. 1523, 1985 WL 11149,

at *3, in support of his argument that an instruction on “bulk amount” is required.

However, the defendant in Chaffin was charged with aggravated drug trafficking “in an

amount greater than bulk but less than three times the bulk amount;” the bulk amount

was therefore relevant to the jury’s findings. Moreover, the conclusion reached in Chaffin

is that the bulk amount is a matter of law upon which the trial court must instruct the jury,

not an evidentiary issue that a witness must testify to. Id. We therefore do not find Chaffin

helpful in the instant case.

{¶37} We find the trial court did not commit plain error in failing to instruct the jury

upon the bulk amount of methamphetamine when appellant was charged with selling less

than three grams. Appellant’s second assignment of error is overruled.

III., IV.

{¶38} Appellant’s third and fourth assignments of error are related and will be

considered together. Appellant argues his conviction upon one count of aggravated drug
[Cite as State v. Carpenter, 2021-Ohio-821.]

trafficking is not supported by sufficient evidence and is against the manifest weight of

the evidence. We disagree.

{¶39} The criminal manifest-weight-of-the-evidence standard was explained in

State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997), in which the Court

distinguished between “sufficiency of the evidence” and “manifest weight of the evidence,”

finding that these concepts differ both qualitatively and quantitatively. Id. at 386. The

Court held that sufficiency of the evidence is a test of adequacy as to whether the

evidence is legally sufficient to support a verdict as a matter of law, but weight of the

evidence addresses the evidence's effect of inducing belief. Id. at 386–387. “In other

words, a reviewing court asks whose evidence is more persuasive—the state's or the

defendant's?” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶

25. The Court noted that although there may be sufficient evidence to support a judgment,

it could nevertheless be against the manifest weight of the evidence. Thompkins, supra

at 387. “When a court of appeals reverses a judgment of a trial court on the basis that the

verdict is against the weight of the evidence, the appellate court sits as a ‘thirteenth juror’

and disagrees with the factfinder's resolution of the conflicting testimony.” Id., citing Tibbs

v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).

{¶40} In a test for sufficiency, “‘the relevant question is whether, after reviewing

the evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.’” (Emphasis

sic.) State v. Stallings, 89 Ohio St.3d 280, 289, 731 N.E.2d 159, quoting Jackson v.

Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). A sufficiency challenge

asks whether the evidence adduced at trial “is legally sufficient to support the jury verdict
[Cite as State v. Carpenter, 2021-Ohio-821.]

as a matter of law.” State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596,

at ¶ 219. Evaluation of the witnesses' credibility is not relevant to a sufficiency analysis.

State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, at ¶ 79.

{¶41} By contrast, to evaluate a manifest-weight claim, a court must review the

entire record, weigh the evidence and all reasonable inferences, and consider the

credibility of witnesses. State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70

N.E.3d 508, at ¶ 328. The court must decide whether “‘the jury clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed.’” Id.,

quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

{¶42} In the instant case, appellant was convicted of one count of aggravated drug

trafficking which required appellee to prove he knowingly sold or offered to sell

methamphetamine. Appellant asserts that the informant’s testimony was uncorroborated

and insufficient to prove he was the person who sold the drugs. The informant was

compensated for his role in the transaction, which appellant argues lessens his credibility.

{¶43} We note that Agent Conley testified the informant is reliable and his

information has been used in the past. The informant told Conley he could make a buy

from appellant and accomplished the task, although he purchased less

methamphetamine than he asked for. Appellant points to the difference in the weight of

the methamphetamine between the crime lab report (1.285 grams) and the informant’s

testimony about the weight observed on his own scales during the transaction (1.8

grams). Appellee noted at trial the crime lab weighed the substance without the

packaging. When the informant weighed it, it was packaged in three separate plastic

bags.
[Cite as State v. Carpenter, 2021-Ohio-821.]

{¶44} The jury could reasonably believe the testimony of the informant. Two

agents of the CODE task force controlled his movements throughout the transaction.

Both agents testified they followed their standard protocol. The informant entered the

residence with appellant and came out with methamphetamine as discussed in a

prerecorded telephone call. There is no evidence that anyone other than appellant sold

the methamphetamine.

{¶45} Appellant’s argument rests upon his assertion that the informant was not

credible, but the weight of the evidence and the credibility of the witnesses are determined

by the trier of fact. State v. Yarbrough, 95 Ohio St.3d 227, 231, 2002-Ohio-2126, 767

N.E.2d 216, ¶ 79.

{¶46} Appellant’s conviction is supported by sufficient evidence and is not against

the manifest weight of the evidence.

V.

{¶47} In his fifth assignment of error, appellant summarily argues he received

ineffective assistance of defense trial counsel because of the alleged assignments of error

supra. We have overruled each of those assignments of error and therefore find appellant

did not receive ineffective assistance of counsel.

{¶48} Appellant’s fifth assignment of error is overruled.
[Cite as State v. Carpenter, 2021-Ohio-821.]

CONCLUSION

{¶49} Appellant’s five assignments of error are overruled and the judgment of the

Licking County Court of Common Pleas is affirmed.

By: Delaney, J.,

Hoffman, P.J. and

Baldwin, J., concur.