State v. Ayers , 194 Ohio App. 3d 812 ( 2011 )

[Cite as State v. Ayers, 194 Ohio App.3d 812, 2011-Ohio-3500.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
:
THE STATE OF OHIO,
Appellee, : C.A. CASE NO. 24060
v. : T.C. CASE NO. 2009-CR-1010
: (Criminal Appeal from
AYERS, Common Pleas Court)
Appellant. :
. . . . . . . . .
O P I N I O N
Rendered on the 15th day of July, 2011.
. . . . . . . . .
Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and
Timothy J. Cole, Assistant Prosecuting Attorney, for appellee.
Michael T. Columbus, for appellant.
. . . . . . . . .
GRADY, Presiding Judge.
{¶ 1} Defendant, Nesbitt Ayers, appeals from his conviction
and sentence for trafficking in marijuana.
{¶ 2} On March 26, 2009, at around 9:30 p.m., Dayton police
officer Keith Coberly was patrolling the high-drug-activity area
in downtown Dayton near Fourth and Main Streets, when he noticed
defendant standing on the corner of the next intersection at Fourth
and Jefferson Streets. Officer Coberly is a 20-year veteran of
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the Dayton police department who has worked in drug interdiction
for nine years. Officer Coberly recognized defendant and knew
him as a downtown drug dealer. Officer Coberly watched as
defendant walked to the RTA bus shelter on the corner of Fourth
and Main Streets. Officer Coberly knew that defendant had
previously been “trespassed off” all RTA property.
{¶ 3} Defendant approached a man, later identified as David
Dewberry, who was sitting on a bench inside the RTA bus shelter.
The area was well lit, and Officer Coberly could observe both
men’s movements. Officer Coberly watched as defendant reached
forward with his right hand and handed something to Dewberry, who
took the item with his left hand, placed it onto a small white
piece of paper he had on his knee, folded it up, and placed it
in his right front pants pocket. Officer Coberly could not see
what the item was, but based upon his experience, he believed that
he had just witnessed a hand-to-hand drug transaction.
{¶ 4} After the exchange, defendant walked away south on Main
Street, and Dewberry walked north on Main Street. Officer Coberly
radioed Officer August and told him to arrest defendant for
trespassing on RTA property. Officer Coberly also radioed Officer
Hurley and told him that Dewberry was walking in his direction
and to stop him because Dewberry had drugs in his right front pants
pocket. Defendant was arrested for trespassing and searched, but
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no drugs were found. Officer Hurley stopped and searched Dewberry,
finding 1.2 grams of marijuana wrapped in a white piece of paper
in Dewberry’s right front pants pocket. Dewberry gave police a
written statement admitting that he had gotten the marijuana from
defendant.
{¶ 5} Defendant was indicted on one count of trafficking in
marijuana, R.C. 2925.03(A)(1), a felony of the fifth degree.
Defendant waived his right to a jury trial and was tried to the
court on March 15, 2010. At trial, Dewberry denied purchasing
or getting any marijuana from defendant. Dewberry claimed that
he gave police a false statement, saying he got that marijuana
from defendant so he did not have to go to jail. The trial court
found defendant guilty of trafficking in marijuana and sentenced
him to five years of community-control sanctions. Defendant
timely appealed to this court from his conviction and sentence.
FIRST ASSIGNMENT OF ERROR
{¶ 6} “The verdict was not supported by sufficient evidence.”
{¶ 7} Defendant argues that his conviction for trafficking
in marijuana is not supported by legally sufficient evidence and
is against the manifest weight of the evidence.
{¶ 8} Defendant was found guilty of trafficking in marijuana
in violation of R.C. 2925.03(A)(1), which provides: “No person
shall knowingly do any of the following: Sell or offer to sell
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a controlled substance.” “Sale” includes delivery, barter,
exchange, transfer, gift, or offer thereof. R.C. 2925.01(A),
3719.01(AA).
{¶ 9} A sufficiency-of-the-evidence argument challenges
whether the state has presented adequate evidence on each element
of the offense to allow the case to go to the jury or sustain the
verdict as a matter of law. State v. Thompkins (1997), 78 Ohio
St.3d 380. The proper test to apply to the inquiry is the one
set forth in paragraph two of the syllabus of State v. Jenks (1991),
61 Ohio St.3d 259:
{¶ 10} “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. The relevant
inquiry is whether, after viewing the evidence in a light most
favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime proven beyond a
reasonable doubt.”
{¶ 11} Evidence presented to prove the elements of a crime
may be direct or circumstantial, and both have the same probative
value. Jenks.
{¶ 12} Defendant argues that his conviction for trafficking
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in marijuana is not supported by legally sufficient evidence
because there is no evidence that he sold or offered to sell
marijuana to Dewberry. At most, the evidence shows that defendant
may have given marijuana to Dewberry as a gift. The state responds
that, at the very least, the evidence shows that much.
{¶ 13} Although Dewberry testified at trial that he did not
purchase or receive any marijuana from defendant, the evidence
presented at trial, when construed in a light most favorable to
the state, especially Officer Coberly’s testimony, demonstrates
otherwise. Officer Coberly observed defendant, a person he knew
to be a drug dealer, in a high-drug-activity area, hand an item
to Dewberry, which Dewberry wrapped in a white piece of paper and
placed in his right front pants pocket. Officer Coberly, although
he could not see what the item was due to its small size, and did
not see any money change hands, reasonably believed, based upon
his experience, that drugs had been transferred from defendant
to Dewberry in a hand-to-hand drug transaction. When Dewberry
was stopped by Officer Hurley and his right front pants pocket
was searched, 1.2 grams of marijuana wrapped inside a white piece
of paper were discovered.
{¶ 14} Any delivery, exchange, transfer, or gift of a
controlled substance constitutes a “sale” for purposes of R.C.
2925.03(A)(1). See R.C. 2925.01(A) and 3719.01(AA). The
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credibility of the witnesses and the weight to be given their
testimony are matters for the triers of fact, the trial court here,
to decide. State v. DeHass (1967), 10 Ohio St.2d 230.
{¶ 15} This exchange between defendant and Dewberry took place
in a high-drug-activity area, and the behavior of defendant and
Dewberry was consistent with drug activity. State v. Ousley,
Montgomery App. Nos. 23496, 23506, 2010-Ohio-3116. Based upon
the evidence presented and the reasonable inferences that may be
drawn from that evidence, a rational trier of facts could find
the essential elements of trafficking in marijuana in violation
of R.C. 2925.03(A)(1) proven beyond a reasonable doubt.
{¶ 16} In setting forth the penalties for trafficking in
marijuana, R.C. 2925.03(C)(3)(a) provides that generally, the
offense is a felony of the fifth degree. However, R.C.
2925.03(C)(3)(g) provides:
{¶ 17} “Except as otherwise provided in this division, if the
offense involves a gift of twenty grams or less of marihuana,
trafficking in marihuana is a minor misdemeanor upon a first offense
and a misdemeanor of the third degree upon a subsequent offense.
If the offense involves a gift of twenty grams or less of marihuana
and if the offense was committed in the vicinity of a school or
in the vicinity of a juvenile, trafficking in marihuana is a
misdemeanor of the third degree.”
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{¶ 18} The evidence was sufficient to prove that the transfer
of drugs by defendant to Dewberry was either a gift or a sale.
In that circumstance, it was necessary also to determine whether
defendant’s transfer of marijuana to Dewberry was a gift or a sale.
State v. Monroe (July 26, 1995), Montgomery App. No. 14842.
Because the trial court as the trier of fact made no factual
determination whether the transaction between defendant and
Dewberry constituted a sale or a gift, the judgment of the trial
court must be reversed and this cause remanded to the trial court
for a factual determination whether the transaction constituted
a sale or a gift, and for the imposition of a sentence appropriate
to that finding. Monroe.
{¶ 19} Defendant’s first assignment of error is sustained in
part and overruled in part.
SECOND ASSIGNMENT OF ERROR
“Even if sufficient evidence was presented, the verdict was
against the manifest weight of the evidence.”
{¶ 20} A weight of the evidence argument challenges the
believability of the evidence and asks which of the competing
inferences suggested by the evidence is more believable or
persuasive. State v. Hufnagle (Sept. 6, 1996), Montgomery App.
No. 15563, 1996 WL 501470. The proper test to apply to that inquiry
is the one set forth in State v. Martin (1983), 20 Ohio App.3d
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172, 175:
{¶ 21} “The court, reviewing the entire record, weighs the
evidence and all reasonable inferences, considers the credibility
of witnesses and determines whether in resolving conflicts in the
evidence, the jury lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and
a new trial ordered.” Accord Thompkins, 78 Ohio St.3d 380.
{¶ 22} The credibility of the witnesses and the weight to be
given to their testimony are matters for the trier of fact to
resolve. State v. DeHass (1967), 10 Ohio St.2d 230. In State v.
Lawson (Aug. 22, 1997), Montgomery App. No. 16288, we observed:
{¶ 23} “Because the factfinder * * * has the opportunity to
see and hear the witnesses, the cautious exercise of the
discretionary power of a court of appeals to find that a judgment
is against the manifest weight of the evidence requires that
substantial deference be extended to the factfinder’s
determinations of credibility. The decision whether, and to what
extent, to credit the testimony of particular witnesses is within
the peculiar competence of the factfinder, who has seen and heard
the witness.”
{¶ 24} This court will not substitute its judgment for that
of the trier of fact on the issue of witness credibility unless
it is patently apparent that the trier of fact lost its way in
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arriving at its verdict. State v. Bradley (Oct. 24, 1997),
Champaign App. No. 97-CA-03.
{¶ 25} Defendant argues that his conviction for trafficking
in marijuana is against the manifest weight of the evidence because
the evidence fails to demonstrate that defendant sold or even gave
marijuana to Dewberry. As we discussed in resolving defendant’s
first assignment of error, “sale” includes a gift for purposes
of a violation of R.C. 2925.03(A)(1), and the evidence presented
here and the reasonable inferences that may be drawn therefrom
are legally sufficient to prove that defendant at least gave
marijuana to Dewberry. Dewberry’s testimony at trial that
defendant did not sell or give him marijuana is contradicted by
his written statement that he gave police saying he got the
marijuana from defendant. The evidence clearly does not support
defendant’s theory that what Officer Coberly witnessed was simply
defendant and Dewberry “bumping fists.”
{¶ 26} The trial court did not lose its way in this case simply
because it chose to believe the state’s witnesses rather than
defendant’s, which it had a right to do. The credibility of the
witnesses and the weight to be given to their testimony were matters
for the trier of fact to decide. DeHass, 10 Ohio St.2d 230.
{¶ 27} Reviewing this record as a whole, we cannot say that
the evidence weighs heavily against a conviction, that the trier
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of fact lost its way in choosing to believe the State’s witnesses,
or that a manifest miscarriage of justice has occurred.
Defendant’s conviction is not against the manifest weight of the
evidence.
{¶ 28} Defendant’s second assignment of error is overruled.
{¶ 29} Having sustained defendant’s first assignment of error
in part, we reverse the judgment of the trial court and remand
this cause for a factual determination whether the transaction
charged in the indictment constituted a sale or a gift, and for
the imposition of a sentence appropriate to that finding.
Judgment affirmed in part
and reversed in part,
and cause remanded
DONOVAN and FROELICH, JJ., concur.