[Cite as State v. Tate, 2016-Ohio-7149.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2015-L-120
- vs - :
DAVID L. TATE, :
Defendant-Appellant. :
Criminal Appeal from the Lake County Court of Common Pleas, Case No. 15 CR
000085.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, Karen A. Sheppert and Teri R. Daniel,
Assistant Prosecutors, Lake County Administration Building, 105 Main Street, P.O. Box
490, Painesville, OH 44077 (For Plaintiff-Appellee).
David L. Tate, pro se, PID: A673-337, Lake Erie Correctional Institution, P.O. Box
8000, 501 Thompson Road, Conneaut, OH 44030. (Defendant-Appellant).
CYNTHIA WESTCOTT RICE, P.J.
{¶1} Appellant, David L. Tate, appeals from the judgment of the Lake County
Court of Common Pleas, convicting him on two counts of trafficking in heroin, third- and
fourth-degree felonies, in violation of R.C. 2925.03(A)(1). We affirm.
{¶2} This matter arose from a narcotics investigation of which appellant was
the target. Two controlled buys of heroin took place in Mentor, Ohio, one on November
11, 2014 and one on December 16, 2014. Both buys were made by confidential
informant, S.B.
{¶3} In the fall of 2014, S.B. and a friend were stopped by law enforcement in
Cleveland, Ohio after purchasing heroin. In order to avoid potential criminal charges,
S.B. agreed to become a confidential informant. Cleveland detective, Bob Sauterer,
contacted Detective Dennis Collins, of the Mentor Police Department, and mentioned a
dealer named David Tate who lived in Mentor, Ohio. Detective Collins obtained a
photograph of appellant. Later, S.B. confirmed the photo was a dealer who used the
alias “Fresh.” S.B. stated she had known “Fresh” for two years and he sold heroin in
Mentor.
{¶4} Prior to the first controlled buy, S.B. contacted appellant and set up a time
and location for the purchase. This call was not monitored. Once appellant agreed, she
again phoned him to confirm the time, location, amount of heroin, as well as the cost.
This conversation was recorded. She stated she wanted “two” for $280; appellant
replied he would give her a little more for an “even three.” They agreed to meet in 20
minutes at the designated location, a residence on 5645 Hillcrest Avenue, Mentor Ohio.
{¶5} Prior to the deal, S.B.’s person and vehicle were searched. She ultimately
drove herself to the residence while Mentor Police Department officers situated
themselves in the surrounding area. Detective Collins with another officer observed the
Hillcrest home from a distance and, shortly after S.B. arrived, they observed appellant
arrive at the home in a black Kia Soul. The officers photographed the vehicle, but were
unable to see anything after it entered the driveway due to various obstructions. They
later determined that appellant was not the owner of the Kia.
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{¶6} S.B. stated appellant exited the Kia and entered her vehicle. He removed
a piece of paper from her glove compartment, wrapped it around the heroin and
exchanged the drug for the $300. As he exited the vehicle, S.B. is heard saying “Bye
Freshy Fresh.” Appellant did not respond and exited the vehicle. S.B. then returned to
the station, officers recovered the recording device and the heroin; a subsequent search
of her person and vehicle revealed no other contraband.
{¶7} S.B. later set up a second controlled buy on December 16, 2014 for one
gram of heroin in exchange for $140. During the call, which was recorded, S.B. refers
to appellant as “Fresh” in the course of negotiating where the purchase will occur. They
ultimately agree to meet at the Hillcrest residence. Prior to initiating controlled buy,
S.B.’s person and vehicle were again searched; she was given a digital recorder with a
wireless microphone and $140 in marked bills.
{¶8} Upon her arrival at the Hillcrest address, S.B. observed several unnamed
men standing outside. Appellant arrived shortly thereafter driving a Hyundai Sonata, his
personal vehicle. Officers again were positioned near the residence and observed the
vehicle as it passed them. Appellant entered the driveway and walked to S.B.’s driver-
side window. During the exchange, S.B. referred to appellant as “Fresh.” Appellant,
however, did not acknowledge the statement. After the deal took place, S.B. returned to
the Mentor police station, where she turned over the recording device and the heroin. A
search of her person and vehicle revealed no additional contraband.
{¶9} After the second controlled buy, Detective Sergeant Richard Slovenkay
and his partner followed appellant to a KFC restaurant. Appellant exited the vehicle and
went inside. The officers observed appellant continuously glancing around in all
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directions. Detective Sergeant Slovenkay characterized this behavior as a form of
“counter surveillance,” i.e., appellant was attempting to determine whether anyone had
followed him. Appellant subsequently left the restaurant.
{¶10} The next day, Officer Don Swindell observed a silver Hyundai Sonata
while on routine patrol, which matched the vehicle description in a recent advisory
bulletin issued by the Mentor Police Department relating to appellant. Officer Swindell
initiated a traffic stop. A canine search of the vehicle was performed but did not yield a
positive alert. The officer’s dashboard camera photographed the vehicle and its license
plate.
{¶11} Based upon the controlled buys, appellant was indicted on two counts of
trafficking in heroin, third- and fourth-degree felonies, in violation of R.C. 2925.03(A)(1).
He entered pleas of “not guilty” at his arraignment. The matter proceeded to jury trial
after which appellant was found guilty on both counts. The trial court sentenced him to
consecutive prison terms of 30 and 15 months, for an aggregate term of 45 months
imprisonment. This appeal follows.
{¶12} Appellant asserts the following as his sole assignment of error:
{¶13} “A.D. conviction was not supported pursuant to Jackson v. Virginia, 443
U.S. 307, 99 S.Ct. 2788.61 [sic.]”
{¶14} Under his sole assignment of error, appellant appears to assert the state
failed to produce sufficient evidence to support his conviction beyond a reasonable
doubt. We conclude the conviction was supported by sufficient, credible evidence.
{¶15} A “sufficiency” argument raises a question of law as to whether the
prosecution offered some evidence concerning each element of the charged offense.
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State v. Windle, 11th Dist. Lake No. 2010-L-0033, 2011-Ohio-4171, ¶25. “[T]he proper
inquiry is, after viewing the evidence most favorably to the prosecution, whether the jury
could have found the essential elements of the crime proven beyond a reasonable
doubt.” State v. Troisi, 179 Ohio App.3d 326, 2008-Ohio-6062, ¶9 (11th Dist.).
{¶16} When considering a challenge to the weight of the evidence, this court sits
as a “thirteenth juror,” weighing the evidence, considering the credibility of testimony,
and evaluating whether the jury lost its way such that a manifest injustice occurred. See
e.g. State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). Although this analysis
requires an appellate court to consider whether the state met its burden of persuasion,
where evidence is susceptible to more than one interpretation, a reviewing court must
defer to the jury’s findings. Warren v. Simpson, 11th Dist Trumbull. No. 98-T-0183, 2000
Ohio App. LEXIS 1073, (Mar. 17, 2000), see also State v. DeHass, 10 Ohio St.2d 230,
227 N.E.2d 212 paragraph one of the syllabus (1967) (the jury is in the best position to
assess the credibility of witnesses). In effect, “[t]he discretionary power to grant a new
trial should be exercised only in the exceptional case in which the evidence weighs
heavily against the conviction.” Martin, supra, at 175.
{¶17} It is well settled that circumstantial evidence and direct evidence possess
the same probative values. State v. Jenks, 61 Ohio St.3d 259, 272 (1991). Thus, proof
beyond a reasonable doubt may be established by circumstantial evidence, direct
evidence, or a combination of each. Id.
{¶18} Under his sole assignment of error, appellant makes various obscure
allegations to support his position that there was insufficient, persuasive evidence to
find him guilty.
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{¶19} First, he alleges the jury was “dead locked” in its deliberations prior to
returning a verdict of guilty. It is unclear how the jury’s status during deliberations has
any effect on the quality or quantity of the evidence produced by the state. Appellant’s
observation regarding the jury has no impact upon the evidence produced by the state.
{¶20} Next, appellant contends his conviction is suspect because Detective
Collins only obtained a “fairly” good look at appellant prior to one of the buys. Although
the detective could not independently confirm appellant was the dealer, S.B., the
confidential informant, identified appellant with certainty. And even though S.B. was the
only eye witness to testify that appellant was the dealer, the surrounding circumstances
of the purchases demonstrate her testimony was credible.
{¶21} First, Detective Collins testified that when he was contacted regarding the
use of S.B. as a confidential informant, the Cleveland officer provided him with both
appellant’s name and a photograph. When Detective Collins showed S.B. the photo,
she positively identified appellant as “Fresh.”
{¶22} Moreover, S.B. testified that she has known appellant approximately two
years and identified him in open court as the individual who sold her the heroin during
the two controlled buys. S.B. further testified she referred to him as “Fresh” or “Freshy
Fresh” throughout their acquaintanceship. And during the audio recordings of the
November and December the controlled heroin buys, S.B. can be heard referring to the
dealer as “Fresh” or “Freshy Fresh.”1 S.B. testified she had been in his presence 20 or
1. Even though the dealer in the controlled buys never verbally acknowledges the name “Fresh,” the
dealer’s failure to acknowledge the name “Fresh” is of little consequence. It is not uncommon for a
person to be non-responsive to the use of one’s name or nickname in the course of a face-to-face
meeting. This may be especially so in the course of a would-be clandestine drug deal. And, in any event,
the dealer’s silence, under the circumstances, could be reasonably viewed as a simple acquiescence to
that name.
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30 times and spoke with him on the phone frequently. And she testified appellant
drove a Hyundai Sonata and she commonly saw him at 5645 Hillcrest, Mentor Ohio, the
residence where he regularly sold heroin.
{¶23} Furthermore, it is undisputed that appellant arrived at 5645 Hillcrest, a
residence out of which heroin was trafficked, immediately after S.B. for each drug deal,
and left shortly after she departed. While this does not provide direct evidence that
appellant was the dealer, the jury could reasonably infer his presence at the location
and the limited time he remained at the residence, provided additional circumstantial
evidence of participation in the transaction.
{¶24} Moreover, Detective Brian Butler of the County Sheriff’s Office testified
that Lake County Jail inmates have the opportunity to provide a name identifying
themselves to those they call outside the jail. The recording is connected with the
inmate’s unique personal identification number (“PIN”) to which he or she is assigned
during the booking process. The recording associated with appellant’s PIN appeared to
identify him as “Fresh.” The recording was played twice to the jury.
{¶25} We acknowledge that S.B. may have had a self-serving motivation for
assisting police and the prosecution; indeed, S.B. acknowledged she agreed to become
a confidential informant because she was stopped in Cleveland after she and her
roommate had purchased heroin. And Detective Dennis Collins testified that individuals
who agree to work with police as confidential informants do so to avoid potential
criminal charges. The jury was therefore fully aware of the circumstances surrounding
S.B.’s role as a confidential informant and was in the best position to evaluate her
testimony in light of her potential stake in the case.
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{¶26} Appellant next asserts the evidence does not support his conviction
because his DNA was not found on the evidence. Dr. Stephen LaBonne testified that
he tested paper in which the heroin was wrapped during the transactions for touch DNA.
The doctor testified that touch testing involves an attempt to detect skin cells transferred
to an object. He further testified that he identified three contributors, one major, a
woman, and two minor, both men. Dr. LaBonne testified he was not able to include
appellant as a contributor of the more abundant of the two minor contributors, but
asserted this does not mean appellant did not touch the paper. The doctor simply
stated appellant may not have touched the paper, or he may have touched it and left too
little DNA to be detected. Simply because appellant could not be positively identified
does not undermine the state’s theory of the case.
{¶27} Appellant next contends that Detective Collins testified that his supervisor,
Detective Sergeant Slovenkay, inspected the substance purchased during one of the
controlled buys and initialed the evidence on December 15, 2014. He asserts that if the
Detective Sergeant Slovenkay did so, it would have been impossible for appellant to
have purchased the same on December 16, 2014. A review of the proceedings
demonstrates, however, that the evidence initialed on December 15, 2014 was the
heroin purchased on November 11, 2014. Accordingly, we perceive no temporal
irregularity in the manner the evidence was processed or the dates on which appellant
was alleged to have sold S.B. the contraband.
{¶28} Given the evidence adduced at trial, we conclude there was sufficient,
credible evidence to sustain appellant’s convictions. We therefore hold the jury’s verdict
is consistent with the manifest weight of the evidence.
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{¶29} Appellant’s sole assignment of error is without merit.
{¶30} For the reasons discussed in this opinion, the judgment of the Lake
County Court of Common Pleas is affirmed.
THOMAS R. WRIGHT, J.,
COLLEEN MARY O’TOOLE, J.,
concur.
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State v. Tate
Combined Opinion