State v. Triplett , 2019 Ohio 2489 ( 2019 )

[Cite as State v. Triplett, 2019-Ohio-2489.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 8-18-41
v.
JONATHAN L. TRIPLETT, OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 8-18-42
v.
JONATHAN L. TRIPLETT, OPINION
DEFENDANT-APPELLANT.
Appeals from Logan County Common Pleas Court
Trial Court Nos. CR 18 02 0029 and CR 18 04 0107
Judgments Affirmed
Date of Decision: June 24, 2019
APPEARANCES:
Eric J. Allen for Appellant
Sarah J. Warren for Appellee
Case Nos. 8-18-41 and 8-18-42
ZIMMERMAN, P.J.
{¶1} Defendant-appellant, Jonathan L. Triplett (“Triplett”), appeals the
September 4, 2018 judgment entry of the Logan County Court of Common Pleas,
Criminal Division, in case number CR18-02-0029 finding him guilty of two counts
of trafficking in crack cocaine and one count of possession of crack cocaine (with a
forfeiture specification) and the September 4, 2018 judgment entry of the Logan
County Court of Common Pleas, Criminal Division, in case number CR18-04-0107
finding him guilty of one count of trafficking in powder cocaine (with a forfeiture
specification). On appeal, Triplett asserts three assignments of error. For the
reasons that follow, we affirm the rulings of the trial court.
{¶2} The relevant facts in this appeal are not in dispute and reveal that shortly
after Triplett was released from prison (for time served as a result of a drug
trafficking conviction in Logan County), Triplett sold cocaine to two confidential
informants working in collaboration with the Logan County Joint Drug Task Force
(“Task Force”). (August 28, 2018 Tr. at 102-121, 123-126); (September 4, 2018
Tr. at 4, 9, 10, 17). On February 3, 2018, Triplett was arrested as a result of the
controlled drug buys and was found to be in possession of two hundred and eighty-
four dollars ($284.00) in cash and two (2) cell phones. (August 28, 2018 Tr. at 177,
190). Thereafter, the Task Force obtained a search warrant for Triplett’s apartment
(where he cohabitated with his girlfriend), wherein crack cocaine was discovered in
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an upstairs bedroom dresser drawer. (August 28, 2018 Tr. at 132, 133, 135, 136,
141, 144, 180, 206, 207, 211, 215, 218). Finally, subsequent to his indictment in
case number CR18-02-0029 and while he was released on bond, Triplett was
arrested for another controlled drug buy for selling powder cocaine to a CI. (August
28, 2018 Tr. at 154-165, 187, 189); (September 4, 2018 Tr. at 9, 11). During that
arrest, Triplett was found in possession of four hundred and thirty-eight dollars
($438.00) in cash. (August 28, 2018 Tr. at 177, 190).
{¶3} On February 13, 2018, the Logan County Grand Jury indicted Triplett
in case number CR18-02-0029 on: Count One, trafficking in cocaine, in violation
of R.C. 2925.03(A)(1), (C)(4)(a), a felony of the fifth degree; Count Two,
trafficking in cocaine, in violation of R.C. 2925.03(A)(1), (C)(4)(a), a felony of the
fifth degree; and Count Three, possession of cocaine, in violation of R.C.
2925.11(A), (C)(4)(b), a felony of the fourth degree, with a specification for
forfeiture of money in a drug case in violation of R.C. 2941.1417(A). (Case No.
CR18-02-0029, Doc. No. 4). Triplett was later indicted by the Logan County Grand
Jury on April 10, 2018 in case number CR18-04-0107 for one count of trafficking
in cocaine, in violation of R.C. 2925.03(A)(1), (C)(4)(a), a felony of the fifth degree,
with a specification for forfeiture of money in a drug case in violation of R.C.
2941.1417(A). (Case No. CR18-04-0107, Doc. No. 2).
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{¶4} The trial court consolidated Triplett’s cases and the matters proceeded
to trial on August 28, 2018 with the jury returning a guilty verdict on all counts in
case number CR18-02-0029 and finding the two hundred and eight-four dollars
($284.00) was subject to forfeiture. (August 28, 2018 Tr. at 286-290); (Case No.
CR18-02-0029, Doc. Nos. 94-97). Additionally, the jury found Triplett guilty on
the single count indicted in case number CR18-04-0107 with a finding that the four
hundred and thirty-eight dollars ($438.00) was also subject to forfeiture. (August
28, 2018 Tr. at 290, 291); (Case No. CR18-04-0107, Doc. Nos. 66, 67).
{¶5} At Triplett’s sentencing on September 4, 2018, the trial court sentenced
him in case number CR18-02-0029 to 12 months in prison on Count One, 12 months
in prison on Count Two, and 18 months in prison on Count Three of the indictment.
(Case No. CR18-02-0029, Doc. No. 103). The trial court further ordered Triplett to
serve the terms consecutively for an aggregate of 42 months in prison. (Id.). The
trial court, then, sentenced Triplett to 12 months in prison on the single count of the
indictment in case number CR18-04-0107 and ordered that term to run consecutive
to the 42-month sentence (in case number CR18-02-0029) totaling 54 months in
prison. (Case No. CR18-04-0107, Doc. No. 73).
{¶6} Triplett filed his notice of appeal in both cases on September 14, 2018,
which we consolidated for purposes of appeal. (Case No. CR18-02-0029, Doc. No.
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111); (Case No. CR18-04-0107, Doc. No. 82). Triplett raises three assignments of
error for our review.
Assignment of Error No. I
The court erred by imposing a sentence unsupported by the
record per O.R.C. § 2929.14 (sic).
Assignment of Error No. II
The verdict in this case is against the sufficiency of the evidence
and should be reversed because it violates the Fifth, Sixth, and
Fourteenth amendments to the United States Constitution, and
Article I, Section 10 of the Constitution of the State of Ohio.
Assignment of Error No. III
The verdict in this case is against the manifest weight of the
evidence and should be reversed because it violates the Fifth,
Sixth, and Fourteenth Amendments to the United States
Constitution, and Article I, Section 10 of the Constitution of the
State of Ohio.
For the reasons that follow, we affirm the trial court.
Assignment of Error No. I
The court erred by imposing a sentence unsupported by the
record per O.R.C. § 2929.14 (sic).
Standard of Review
{¶7} “Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence
‘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
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otherwise contrary to law.’” State v. Taflinger, 3d Dist. Logan No. 8-17-20, 2018-
Ohio-456, ¶ 14, citing State v. Nienberg, 3d Dist. Putnam Nos. 12-16-15 and 12-16-
16, 2017-Ohio-2920, ¶ 8 quoting State v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-
1002, 59 N.E.3d 1231, ¶ 1.
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. Sullivan, 3d Dist. Hancock No. 5-17-09, 2017-Ohio-8937, ¶ 12, quoting
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118, (1954), paragraph three of the
syllabus.
{¶8} “Except as provided in * * * division (C) of section 2929.14, * * * a
prison term, jail term, or sentence of imprisonment shall be served concurrently with
any other prison term, jail term, or sentence of imprisonment imposed by a court of
this state, another state, or the United States.” R.C. 2929.41(A).
Revised Code 2929.14(C) provides:
(4) If multiple prison terms are imposed on an offender for convictions
of multiple offenses, the court may require the offender to serve the
prison terms consecutively if the court finds that the consecutive
service is necessary to protect the public from future crime or to
punish the offender and that consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct and to
the danger the offender poses to the public, and if the court also finds
any of the following:
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(a) The offender committed one or more of the multiple offenses while
the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the
Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or more
of the multiple offenses so committed was so great or unusual that no
single prison term for any of the offenses committed as part of any of
the courses of conduct adequately reflects the seriousness of the
offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
R.C. 2929.14(C)(4)(a)-(c).
{¶9} Revised Code 2929.14(C)(4) requires the trial court to make specific
findings on the record when imposing consecutive sentences. State v. Hites, 3d Dist.
Hardin No. 6-11-07, 2012-Ohio-1892, ¶ 11; State v. Peddicord, 3d Dist. Henry No.
7-12-24, 2013-Ohio-3398, ¶ 33. Specifically, the trial court must find: (1)
consecutive sentences are necessary to either protect the public or punish the
offender; (2) the sentences would not be disproportionate to the offense committed;
and (3) one of the factors in R.C. 2929.14(C)(4)(a), (b), or (c) applies. (Id.; Id.).
{¶10} The trial court must state the required findings at the sentencing
hearing when imposing consecutive sentences and incorporate those findings into
its sentencing entry. State v. Sharp, 3d Dist. Putnam No. 12-13-01, 2014-Ohio-
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4140, ¶ 50, citing State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, 16 N.E.3d
659, ¶ 29. A trial court “has no obligation to state reasons to support its findings”
and is not “required to give a talismanic incantation of the words of the statute,
provided that the necessary findings can be found in the record and are incorporated
into the sentencing entry.” Bonnell at ¶ 37.
Analysis
{¶11} In sentencing Triplett, the trial court considered the overriding
principles and purposes of felony sentencing at the sentencing hearing and again in
each of its judgment entries. (September 4, 2018 Tr. at 12-15); (Case No. CR18-
02-0029, Doc. No. 103); (Case No. CR18-04-0107, Doc. No. 73). Further, the
sentences imposed by the trial court were within the statutory ranges for each
offense. See R.C. 2929.14(A)(3)(b)(4)-(5). The record demonstrates that the trial
court determined that Triplett had a history of committing drug offenses, including
while he was under probation and parole supervision, within thirty (30) days of
being released from prison, and while he was awaiting trial on the instant offenses.
(August 28, 2018 Tr. at 102-121, 123-126); (September 4, 2018 Tr. at 4, 9, 10, 17).
{¶12} Nevertheless, Appellant contends that the trial court erred by using
Triplett’s presentence investigation report (“PSI”) from 2016. We disagree. To this
contention, the record reflects that the trial court was in the process of ordering a
new PSI after Triplett was convicted, when Triplett requested to proceed (with
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sentencing) to “get it over with.” (August 28, 2018 Tr. at 292, 293). Even though
an updated PSI may have flushed out more facts related to the instant offenses, the
failure to order an updated PSI was not contrary to law, especially, in light of the
fact that, Triplett had just been released from prison when some of his new charges
were committed, and while he was released on bond when he committed the other
charge. Thus, Triplett has not provided us with how he was prejudiced by the trial
court’s failure to order an updated PSI in light of these facts.
{¶13} Finally, the appellant argues that the trial court erred in its finding
(that) he showed no remorse during the course of the sentencing hearing.
Specifically, Appellant opines:
[t]he lack of remorse was mentioned time and time again by the Court,
despite the fact that Triplett actively showed a sense of remorse and
willingness to be accountable for his action, especially for the sake of
his four children.
(Emphasis added.) (Appellant’s Brief at 4). In our review, we note that the appellant
failed to direct us to specific instances in the record to support his assertion that the
trial court erred by failing to consider Triplett’s remorse. We recognize that the trial
court stands in the best position to determine the earnestness of those that stand
before the bench and to weigh their credibility. State v. Nutter, 3d Dist. Wyandot
No. 16-01-06, 2001-Ohio-2253, 2001 WL 961748, *2. Here, we cannot find that
the trial court’s determination that Triplett’s reoffending, both within thirty (30)
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days of his release from prison and while out on bond, was an inference that
demonstrated an absence of genuine remorse nor can we find this implication was
contrary to law.
{¶14} Accordingly, Appellant’s first assignment of error is overruled.
Assignment of Error No. II
The verdict in this case is against the sufficiency of the evidence
and should be reversed because it violates the Fifth, Sixth, and
Fourteenth amendments to the United States Constitution, and
Article I, Section 10 of the Constitution of the State of Ohio.
{¶15} Next, we turn to Triplett’s final two assignments of error. Here,
Triplett only argues that the verdicts in Count Two and Three in case number CR18-
02-0029 were not support by sufficient evidence and are also against the manifest
weight of the evidence. Thus, we need not address whether Count One in case
number CR18-02-0029 and Count One in case number CR18-04-0107 were not
supported by sufficient evidence or were against the manifest weight of the
evidence. Manifest “weight of the evidence and sufficiency of the evidence are
clearly different legal concepts.” State v. Frye, 3d Dist. 2018-Ohio-894, ¶ 12, citing
State v. Thompkins, 78 Ohio St. 3d 380, 389, 678 N.E.2d 541, 547 (1997),
superseded by state constitutional amendment on other grounds as stated in State v.
Smith, 80 Ohio St. 3d 89, 684 N.E.2d 668 (1997). Therefore, we will address each
legal concept, separately.
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Standard of Review (Sufficiency of the Evidence)
{¶16} “Whether there is legally sufficient evidence to sustain a verdict is a
question of law.” State v. Davis, 3d Dist. Seneca No. 13-16-30, 2017-Ohio-2916, ¶
14, citing State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19
citing Thompkins at 386. “An appellate court’s function when reviewing the
sufficiency of the evidence to support a criminal conviction is to examine the
evidence admitted at trial to determine whether such evidence, if believed, would
convince the average mind of the defendant’s guilt beyond a reasonable doubt.”
State v. Carpenter, 3d Dist. Seneca No. 13-18-16, 2019-Ohio-58, ¶ 13, citing State
v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492 (1981), paragraph two of the syllabus,
superseded by state constitutional amendment on other grounds, State v. Smith, 80
Ohio St. 3d 89, 684 N.E.2d 668 (1997). Accordingly, “[t]he 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.” Id. “In deciding if the evidence was sufficient, we
neither resolve evidentiary conflicts nor assess the credibility of witnesses, as both
are functions reserved for the trier of fact.” State v. Jones, 1st Dist. Hamilton Nos.
C-120570 and C-120571, 2013-Ohio-4775, ¶ 33, citing State v. Williams, 1st Dist.
Hamilton No. C-110097, 2011-Ohio-6267, ¶ 25. See also State v. Berry, 3d Dist.
Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19 (“Sufficiency of the evidence is a test
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of adequacy rather than credibility or weight of the evidence.”), citing Thompkins
at 386.
Analysis (Sufficiency of the Evidence)
{¶17} We begin by addressing Triplett’s sufficiency of the evidence
argument as it relates to case number CR18-02-0029 and his conviction for Count
Two, trafficking in cocaine.
(Case No. CR18-02-0029, Count Two, trafficking in cocaine)
R.C. 2925.03 provides, in pertinent part:
(A) No person shall knowingly do any of the following:
(1) Sell or offer to sell a controlled substance or a controlled
substance analog;
(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 trafficking in cocaine.
The penalty for the offense shall be determined as follows:
(a) Except as otherwise provided in division (C)(4)(b), (c), (d), (e),
(f), or (g) of this section, trafficking in cocaine is a felony of the fifth
degree, and division (B) of section 2929.13 of the Revised Code
applies in determining whether to impose a prison term on the
offender.
R.C. 2925.03(A)(1)(C)(4)(a).
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{¶18} To prove that Triplett committed the offense of trafficking in cocaine,
the State called two witnesses, Tyler Queen (“Queen”), the confidential informant,
and Detective Craig Comstock (“Detective Comstock”) of the Bellefontaine Police
Department.
{¶19} Appellant argues that the only evidence offered by the State regarding
the January 17th trafficking conviction was Queen’s testimony, audio surveillance
with poor audio quality and static, and a “dark” video. We disagree.
{¶20} The record reveals that late in the afternoon on January 17, 2018,
Queen purchased $80 dollars’ worth of crack cocaine from Triplett during a
controlled narcotics-operation working in collaboration with the Task Force.
(August 28, 2018 Tr. at 111, 115, 175, 223). (See also State’s Ex. 4). Queen
testified that he arrived at Triplett’s apartment, on foot, after texting Triplett to
arrange the purchase of crack cocaine. (Id. at 111-113, 116-118, 230). (See also
State’s Ex. 25). Queen waited behind the apartment for Triplett to appear. (Id. at
117). (See also State’s Ex. 25). Triplett exited the front door of the apartment and
walked to the back of the apartment complex with a bag of crack cocaine in his
hand. There, the two exchanged the money for the drugs. (Id. at 116-118, 230).
(See also State’s Ex. 25). After the drug buy concluded, Queen turned and walked
away. (Id. at 115, 118, 230). (See also State’s Ex. 25). Queen acknowledged that
the video of the transaction was too dark to really see anything. (Id. at 115, 122).
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However, the debriefing audio recording (containing Queen’s statements to Task
Force deputies) made on January 17, 2018 at 6:31p.m. following the controlled buy
was played in open court to the jury. (Id. at 115-117, 230). (See also State’s Ex.
25).
{¶21} On cross-examination, Queen testified that he was required to change
clothes prior to the operation into designated clothing provided by the Task Force.
(Id. at 122). On re-direct, Queen testified that he was wearing audio recording
equipment provided by the Task Force at the time of the drug buy. (Id. at 124-126,
230). (See also State’s Ex. 24).
{¶22} Detective Comstock testified that he was present for the entire
operation, pre- and post-operation, and that Queen was under audio surveillance
during the entire operation and video surveillance, when possible, for Queen’s
safety. (Id. at 172, 174, 175). Detective Comstock also testified that he provided
Queen with the $80 for the operation which was photographed and admitted into
evidence as State’s Exhibit 4. (Id. at 175, 223). (See also State’s Ex. 4). Detective
Comstock also testified that after the drug buy Queen gave him the drugs (that were
purchased from Triplett) which were immediately weighed1 and field tested2. (Id.);
(Id.).
1
The drugs weighed .7 grams. (August 28, 2018 Tr. at 175).
2
The drugs field tested positive, blue indicating positive for cocaine. (Id.)
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{¶23} In addition to the audio and video evidence of the drug buy, which we
find to be of poor quality, the jury heard the testimonies of Queen and Detective
Comstock and as well as the audio debriefing. Further, Queen’s subsequent
possession of the cocaine and the absence of the marked money (provided by the
Task Force) is circumstantial evidence that a drug transaction involving Queen and
Triplett took place. Nevertheless, Appellant argues Queen’s credibility is
questionable due to his criminal history and his desire to avoid a four-month
sentence for a parole violation as a result of a recent relapse. (Id. at 99-101) (See
also Appellant’s Brief at 8). We find this argument without merit. Sufficiency is a
quantitative question not a qualitative one. See State v. Berry, 3d Dist. Defiance
No. 4-12-03, 2013-Ohio-2380, ¶ 19 (“[s]ufficiency of the evidence is a test of
adequacy rather than credibility or weight of the evidence.”), citing Thompkins at
386. Even though, the credibility of Queen was at issue, the jury is the trier of fact
and is permitted to judge the credibility of the witnesses accordingly. See State v.
DeHass, 10 Ohio St. 2d 230, 231, 227 N.E.2d 212, 213 (1967).
{¶24} Thus, we conclude that the State presented sufficient evidence, absent
the audio and video content, that Triplett knowingly sold a controlled substance to
Queen.
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(Case No. CR18-02-0029, Count Three, possession of cocaine)
{¶25} Next, we address Triplett’s sufficiency of the evidence argument as to
Count Three, possession of cocaine in case number CR18-02-0029.
R.C. 2925.11(A), (C)(4)(b), provides, in relevant part:
(A) No person shall knowingly obtain, possess, or use a controlled
substance or a controlled substance analog.
(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:
(b) If the amount of the drug involved equals or exceeds five grams
but is less than ten grams of cocaine, possession of cocaine is a felony
of the fourth degree, and division (B) of section 2929.13 of the
Revised Code applies in determining whether to impose a prison term
on the offender.
R.C. 2925.11(A),(C)(4)(b).
{¶26} Appellant argues that the evidence does not support that: Triplett was
a resident of Apartment 5 located at 555 Newel Street; and that Triplett possessed
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or used the crack cocaine discovered during the execution of the search warrant at
the apartment. In answer to these questions, the State presented two witnesses
assigned to the Task Force, Detective Brent Joseph (“Detective Joseph”) of the
Logan County Sheriff’s Office and Detective Comstock of the Bellefontaine Police
Department.
{¶27} Detective Joseph testified that the search warrant was executed by the
Task Force on February 3, 2018 at 555 Newel Street, Apartment 5, in Bellefontaine,
Ohio, and that the apartment was leased to Triplett’s girlfriend, Kaitlyn Whiting.
(August 28, 2018 Tr. at 132, 133, 140, 141). During the search of the apartment,
the baggie containing crack cocaine was located in a dresser drawer3. (Id. at 135,
141, 142). Detective Joseph testified that the Task Force had the apartment under
surveillance, and that, Triplett was seen coming to and from the apartment on a daily
basis4. (Id. at 144).
{¶28} Detective Comstock testified to personally seeing Triplett going in and
out of the apartment daily and to Triplett parking his vehicles at the apartment
overnight. (Id. at 172, 176, 203, 207, 211, 215). He further testified that some of
Triplett’s clothing was located in the bedroom where the drugs were located. (Id.
3
The dresser drawer contained both male and female clothing. (August 28, 2018 Tr. at 141, 142).
4
It is worth noting that the location of the controlled narcotics-operations for the January 5th and January
17th drug buys were also at the 555 Newel Street address just outside of the apartment complex. (Id. at 113,
114, 144).
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at 214). More importantly, Detective Comstock interviewed Triplett (after the
execution of the search warrant) wherein Triplett admitted that the drugs located in
the apartment were his. (Id. at 192).
{¶29} The record supports that the appellant was more than a casual visitor
of the apartment by virtue of his daily appearances there, by parking his vehicles at
the apartment overnight, and through the discovery of his clothing found in the
bedroom where the drugs were found. More importantly, Triplett admitted to
Detective Comstock that the drugs found in the bedroom dresser belonged to him.
{¶30} Viewing the evidence in the light most favorable to the State, Triplett’s
trafficking and possession convictions in Count Two and Count Three of the
indictment in case number CR18-02-0029 are grounded on sufficient evidence.
Assignment of Error No. III
The verdict in this case is against the manifest weight of the
evidence and should be reversed because it violates the Fifth,
Sixth, and Fourteenth Amendments to the United States
Constitution, and Article I, Section 10 of the Constitution of the
State of Ohio.
Standard of Review (Manifest Weight of the Evidence)
{¶31} Appellate Courts “must review the entire record, weigh the evidence
and all the reasonable inferences, consider the credibility of witnesses, and
determine whether in resolving conflicts in the evidence, the factfinder ‘clearly lost
its way and created such a manifest miscarriage of justice that the conviction must
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be reversed and a new trial ordered.’” State v. McBeth, 3d Dist. Seneca No. 13-18-
19, 2019-Ohio-59, ¶ 7 citing, State v. Brentlinger, 3d Dist. Allen No. 1-16-23, 2017-
Ohio-2588 ¶ 36, quoting Thompkins at 387.
{¶32} An appellate court must, however, allow the trier of fact appropriate
discretion on matters relating to the weight of the evidence and the credibility of the
witnesses. DeHass at 231. We sit as the “thirteenth juror”. State v. McBeth, 3d
Dist. Seneca No. 13-18-19, 2019-Ohio-59, ¶ 7 citing, State v. Davis, 3d Dist. Seneca
No. 13-16-30, 2017-Ohio-2916, ¶ 17, quoting State v. Thompkins, 78 Ohio St. 3d
380, 387, 678 N.E.2d 541, 546 (1997); see also State v. Davis, 3d Dist. Allen No.
1-17-44 and 1-17-45, 2018-Ohio-4368, 2018 WL 5433883 ¶ 62, citing, Phelps v.
Horn’s Crop Serv. Ctr., 3rd Dist. Wyandot No. 16-89-8, 1990 WL 157282 *2
(holding that the choice between credible witnesses and their conflicting testimony
rests solely with the finder of fact and an appellate court may not substitute its own
judgment for that of the finder of fact).
Analysis (Manifest Weight of the Evidence)
At the outset, we note App.R. 16(A)(7) provides:
(A) Brief of the Appellant. The appellant shall include in its brief,
under the headings and in the order indicated, all of the following:
***
(7) An argument containing the contentions of the appellant with
respect to each assignment of error presented for review and the
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reasons in support of the contentions, with citations to the authorities,
statutes, and parts of the record on which appellant relies. The
argument may be preceded by a summary.
(Emphasis added.) App.R. 16(A)(7). Under this assignment, Appellant directs us
to the standard of review relative to his argument in assignment of error two. More
importantly, Appellant fails to provide any authority to support his proposition that
the verdict in this case was against the manifest weight of the evidence. Thus, the
appellant has failed to present a legal argument in this assignment, rendering his
assignment of error a nullity pursuant to App.R. 12(A)(2).
{¶33} Nevertheless, we will address this assignment of error on its merit as
to Count Two (trafficking in cocaine) and Count Three (possession of cocaine) in
case number CR18-02-0029. In our review, we acknowledge eight factors to assist
us in determining whether a verdict is against the manifest weight of the evidence.
They are:
1. A reviewing court is not required to accept the incredible as true;
2. Whether the evidence is uncontroverted;
3. Whether a witness was impeached;
4. What was not proved;
5. Certainty of the evidence;
6. Reliability of evidence;
7. Whether witness’ testimony is self-serving;
8. And whether evidence is vague, uncertain, conflicting, and
fragmentary.
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Case Nos. 8-18-41 and 8-18-42
(Emphasis added.) State v. Davis, 3d Dist. Allen No. 1-17-44 and 1-17-45, 2018-
Ohio-4368, ¶ 63, citing State v. Mattison, 23 Ohio App. 3d 10, 14, 490 N.E.2d 926
(8th Dist.1985).
(Case No. CR18-02-0029, Count Two, trafficking in cocaine)
(Uncontradicted Evidence)
{¶34} In the case before us, the appellant’s evidence did not contradict the
State’s evidence concerning the January 17th controlled drug buy as set forth in
Count Two. The record supports that Queen, the State’s confidential informant, met
Triplett behind Triplett’s apartment complex on Newel Street and engaged in a drug
transaction. Triplett and Queen were under surveillance by the Task Force during
the entire operation. After the drug buy concluded, Queen was debriefed by
Detective Comstock and handed over the drugs (to Detective Comstock) that he
purchased from Triplett. The drugs field tested positive for cocaine, were
photographed, weighed, and were sent to the Ohio Bureau of Criminal Investigation
(“BCI”) where they were found to be cocaine.
(Impeached Witnesses)
{¶35} A review of the record reveals that no witness for the State was
successfully impeached.
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Case Nos. 8-18-41 and 8-18-42
(Self-Serving Testimony)
{¶36} Appellant argues that Queen’s testimony was self-serving. We
conclude that Queen did benefit from the work he provided as a CI for the Task
Force. Thus, he may have had credibility issues as to why he was working with the
Task Force, but ultimately, the jury was permitted to determine the weight of that
credibility. Thus, as to this factor, Appellant’s argument is not compelling. (See
August 28, 2018 Tr. at 129, 130).
(Vague, Uncertain, Conflicting, or Fragmentary Evidence)
{¶37} The record does not support a finding that the evidence was vague,
uncertain, conflicting, or fragmentary. Each witness that testified for the State
provided information to develop the facts at hand. Queen, the State’s confidential
informant, testified that he purchased crack cocaine from the defendant at a location
adjacent to Triplett’s apartment located at 555 Newel Street. Detectives Joseph and
Comstock testified that they participated in the controlled drug buys with Triplett,
and that, the Task Force conducted surveillance of Triplett before, during, and after
the buys. Further, Detective Comstock testified that Triplett admitted that the drug
buys found in the apartment (on Newell Street) were his.
{¶38} Thus, upon our review, we conclude that the weight of the evidence
supports Appellant’s conviction for the offense of trafficking in cocaine committed
on January 17th. We further conclude that the jury did not lose its way and create
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Case Nos. 8-18-41 and 8-18-42
such a manifest miscarriage of justice in convicting Appellant of trafficking in
cocaine as it relates to Count Two of the indictment.
{¶39} Accordingly, we overrule Appellant’s third assignment of error as it
relates to Count Two in case number CR18-02-0029.
(Case No. CR18-02-0029, Count Three, possession in cocaine)
{¶40} Next, we turn to Count Three, possession of cocaine. Here, Appellant
argues that the apartment, the dresser, and the drugs found were not his and could
have been accessed by someone else. (Appellant’s Brief at 9). Once again, using
the factors outlined above we will review whether the weight of the evidence the
State produced establishes that the appellant had possession of the cocaine located
in the dresser drawer.
(Uncontradicted Evidence)
{¶41} Initially, we note that Appellant did not present evidence that
contradicted the State’s evidence at trial. Even though the appellant contends that
the crack cocaine located in the dresser drawer in the upstairs bedroom of apartment
was not his, Appellant’s admission (to Detective Comstock) and the evidence
introduced by the State indicate otherwise.
(What was not proved)
{¶42} Appellant argues that others may have had an opportunity to access
the drugs in the dresser drawer. However, the record is silent that anyone ever did
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Case Nos. 8-18-41 and 8-18-42
access the drawer, other than, Triplett’s live-in girlfriend, who had no involvement
in the drug trade despite her relationship with Triplett. (See August 28, 2018 Tr. at
144, 145). Relative to this argument (of opportunity) the record supports that only
Triplett had access to the dresser drawer which contained the crack cocaine and was
concurrently convicted of drug trafficking in crack cocaine adjacent to the very
same apartment complex. We are not required “to accept the incredible as true.”
State v. Davis, 3d Dist. Allen No. 1-17-44 and 1-17-45, 2018-Ohio-4368, ¶ 63,
citing State v. Mattison, 23 Ohio App. 3d 10, 14, 490 N.E.2d 926 (8th Dist.1985),
e.g. Schaefer v. Cincinnati, 75 Ohio App. 288, 292, 62 N.E.2d 102 (1st Dist.1945).
(Impeached Witnesses)
{¶43} A review of the record reveals that no witness for the State was
successfully impeached.
(Self-Serving Testimony)
{¶44} The record reveals that there was no self-serving testimony in this case
as it relates to Count Three. Accordingly, on review, we do not find indicia of self-
serving testimony.
(Vague, Uncertain, Conflicting, or Fragmentary Evidence)
{¶45} There was no vague, uncertain, conflicting, or fragmentary evidence
in the record.
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Case Nos. 8-18-41 and 8-18-42
{¶46} Accordingly, we find that the weight of the evidence supports
Appellant’s conviction. We further find that the jury did not lose its way and create
a manifest miscarriage of justice in convicting Appellant of possession of cocaine
in Count Three of the indictment in case number CR18-02-0029. Consequently, we
overrule Appellant’s third assignment of error as it relates to Count Three.
Conclusion
{¶47} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we overrule all of Appellant’s first, second, and
third assignments of error and affirm the judgments of the trial court.
Judgments Affirmed
SHAW and WILLAMOWSKI, J.J., concur.
/jlr
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