{¶ 2} At the jury trial, the following evidence was adduced.1 The evidence included recordings made of each of eight controlled buys of cocaine and crack cocaine made by confidential informants ("CI") and testimony by each CI. Two agents with the Ottawa County Drug Task Force testified to the procedures involved in making controlled buys of cocaine using CIs.
{¶ 3} First, agent Carl Rider testified to his supervision of five controlled buys of cocaine using a confidential informant. His practice was to give a CI money with recorded serial numbers, fit the CI with a microphone transmitter, transport the CI to the buy location, listen to the transaction on a receiver, meet the CI, obtain the drugs and search the CI to ensure that no drugs were kept. Recordings made of each transaction were admitted into evidence and played for the jury.
{¶ 4} On January 6, 2006 ("first count"), Rider's CI arranged a controlled buy at a home of one Joe Wickerham. The CI was given $100 in cash to buy cocaine from Lawrence David Conyer, an associate of appellant. Immediately after the transaction, appellant told the CI that he could "rock it up," meaning that he could mix the powder *3 cocaine into crack cocaine. Appellant and the CI discussed the CI's background for approximately nine minutes; appellant said he had "caught a case before," meaning he had been in trouble for drug cases in the past, and was curious about the CI. When the CI returned to the waiting agents, he gave them a package of white powder, later determined by laboratory testing to be 0.68 grams of powder cocaine.
{¶ 5} Rider supervised four subsequent controlled buys of cocaine, during which the same procedures were followed. On January 9, 2006 ("second count"), the CI arranged a controlled buy at Wickerham's house. This time, appellant took the CI's money directly from the CI and handed him three packets; these three packets were later determined by testing to contain 0.41 grams of cocaine in total. On January 11, 2006 ("third count"), the CI arranged another controlled buy at Wickerham's house, which yielded a package later determined by testing to contain 0.18 grams of cocaine. The CI called Conyer and asked him to deliver cocaine to Wickerham's for purchase; Conyer arrived with appellant.
{¶ 6} After the third count, Rider showed the CI a photo array of six photographs, one of which was appellant. The CI identified appellant as the person who had arrived at Wickerham's house with Conyers and who had sold him the cocaine during each controlled buy.
{¶ 7} The CI arranged yet another controlled buy for Rider on January 24, 2006 ("fourth count"). The CI told Rider he could purchase crack cocaine from a woman named Berna Carroll. The same procedures were followed to prepare the CI, who was *4 then placed on a public park bench to wait for Carroll. Meanwhile, agents who knew Carroll's identity watched outside her residence and followed her from her residence to the CI. The CI and Carroll, followed by Rider, drove to an alley where they picked up appellant. The three drove to David Conyer's house, and Carroll and appellant went inside. Rider testified that the CI reported that he saw Carroll give appellant his buy money before they entered Conyer's house. Carroll returned to the car without appellant; Carroll gave the CI a package; she told the CI that from then on the CI would have to go to the other residence. The package tested as containing 0.51 grams of cocaine.
{¶ 8} On January 25, 2006 ("fifth count"), the CI arranged another controlled buy using Carroll. Rider instructed the CI to try to avoid being taken to Wickerham's house again. After the CI was prepared and met Carroll, however, Carroll insisted that the buy be conducted at Wickerham's. The CI gave Carroll the money, and, as with Conyers before, Carroll took the CI's money into a bathroom with appellant; she returned from the bathroom and gave the CI a package later determined to contain 0.29 grams of cocaine.
{¶ 9} On cross-examination, Rider acknowledged never having witnessed appellant, either visually or orally from the tapes, taking money from the CI or giving cocaine to the CI. Instead, with the exception of the second buy, the CI had identified appellant as the person who had given the cocaine to either Conyers or Carroll to give to him. The usual procedure at Wickerham's was for the CI to contact either Conyers or Carroll, and for Conyers or Carroll to go into a bathroom with appellant, out of view of the CI. Conyers or Carroll would take the CI's money, enter the bathroom with appellant, *5 exit the bathroom and return with cocaine or crack cocaine to give to the CI. Rider visually identified appellant only during the fourth count, when appellant rode in the backseat of Carroll's car with the CI.
{¶ 10} Billy Burel, the CI who worked with Rider, testified to his involvement in the five controlled buys. His testimony was essentially identical to Rider's, with one exception: With respect to the fourth buy, he repeatedly asserted that he never saw Carroll give appellant his buy money outside the apartment. For the second buy, he testified that he was able to directly give appellant money and appellant directly gave the CI the cocaine. For the other four transactions, however, he testified that either Conyers or Carroll would take his money, go into a bathroom or Conyer's apartment with appellant, and either Conyers or Carroll would then return with the cocaine. During the time he spent at the buy residence with Conyers and Carroll, he never saw Conyers or Carroll sell drugs to any other person and both Conyers and Carroll acted as "go-betweens," taking money to appellant and then delivering cocaine for appellant.
{¶ 11} Frederick Nowak, another CI, worked with agent St. Clair and performed three controlled buys under his supervision. St. Clair followed the same procedures as Rider to prepare the CI for each buy, giving Nowak $200 for each transaction. Nowak knew appellant from previous personal crack cocaine purchases at a neighbor's residence. For each of the three controlled buys, Nowak would telephone appellant, who would come to Nowak's residence and directly sell him approximately $200 worth of crack cocaine. The three transactions were nearly identical; Nowak would place a plate and *6 $200 in cash on a table, and in exchange, appellant would place pieces of crack cocaine on the plate for Nowak. After appellant left his apartment, Nowak put the crack cocaine into a small plastic bag and gave it to St. Clair.
{¶ 12} St. Clair, a detective with the Ottawa County Drug Task Force, supervised the controlled buys made by CI Nowak. He testified to utilizing the same procedures as Rider before and after each controlled buy. After obtaining the yield from each buy, he sent them to the BCI laboratory. The first buy yielded 0.72 grams of crack cocaine; the second buy yielded 1.21 grams of crack cocaine; the third buy yielded 0.69 grams of crack cocaine (sixth, seventh, and eighth counts).
{¶ 13} St. Clair also testified to the location of Nowak's apartment, where the last three controlled buys were performed. He testified that the distance from the "middle" of Nowak's property to the "school property" measured 264 feet. The measurement was performed by another detective (who did not testify) using a topographic computer program. He also testified that the "school" was approximately one-half block from Nowak's apartment. The state submitted no documentary evidence from this computer program to support the measurement, and St. Clair did not state the name of the "school" or describe the type of "school property."
{¶ 14} Richard Vance, an officer with the Port Clinton Police Department, arrested appellant on February 13, 2006, at agent Rider's verbal direction. This occurred shortly after Nowak's third and last controlled buy had concluded. Nowak told Rider that appellant had left his apartment after the buy, and was following him. Rider informed *7 Vance that appellant and a female companion were in a vehicle in his patrol area. Vance located the vehicle, activated his cruiser's overhead lights, and effected a stop. Vance approached the passenger side of the vehicle, identified appellant, and placed him under arrest. He performed a pat-down search which yielded a large roll of bills, which he gave to Officer Barton. Barton had responded to the scene separately from and subsequent to the stop; Barton's testimony regarding his involvement in the stop was essentially duplicative.
{¶ 15} When Rider arrived on the scene, Rider instructed Vance to search appellant by asking him to remove his shoes. When appellant did so, Vance found a plastic bag containing partially crushed white pills. Laboratory testing determined the bag contained 3.94 grams of hydrocodone ("ninth count"). The cash found in appellant's pocket totaled $917, and it included a $100 bill, the serial numbers of which matched those of a $100 bill that St. Clair had given Nowak for the last controlled buy.
{¶ 16} Appellant's counsel moved for an acquittal as to all counts, arguing that at no time did anyone see appellant directly taking part in the transactions or handling cocaine or money. Appellant's counsel also argued that the state failed to prove the school specification with respect to the last three buys, since no evidence was introduced establishing the distance of Nowak's apartment from the school. The trial court stated, "The Court can take judicial notice of the geo-political situation within its jurisdiction and the town plat of Port Clinton plats lots out or a block out at 400 by 400." Notably, at *8 no time during arguments on the motion did either party state the name of the "school" or specify what type of "school" it was.
{¶ 17} The trial court denied the motion for acquittal as to the ten charges sub judice, and submitted the matter to the jury, which returned verdicts of guilty as to each count. Appellant stipulated to the forfeiture of $917 as the indictment provided. At sentencing, the trial court imposed a total term of 16 and one-half years incarceration: terms of 12 months incarceration for each of the fifth-degree felonies, the maximum term allowed pursuant to R.C.
{¶ 18} Appellant has filed three assignments of error for review:
{¶ 19} "I. The trial court erred when it denied defendant-appellant's motion for acquittal and/or new trial and entered judgment against defendant-appellant when the evidence was insufficient to sustain a conviction.
{¶ 20} "II. The trial court erred when it denied defendant-appellant's motion for acquittal and/or new trial and entered judgment against defendant-appellant when it was not supported by the manifest weight of the evidence. *9
{¶ 21} "III. The trial court erred in imposing the maximum possible and consecutive sentences for counts seven and ten upon defendant-appellant in that it did not comply with the requirements of Ohio Revised Code Sections
{¶ 22} We consider the first two assignments of error jointly. Appellant challenges his convictions as unsupported by sufficient evidence and as being against the manifest weight of the evidence. However, with respect to sufficient evidence, he only challenges his convictions for complicity in trafficking in drugs (Counts 3, 4, and 5), his three convictions for trafficking drugs in the vicinity of a school (Counts 6, 7, and 8), and his conviction for engaging in a pattern of corrupt activity. He does not challenge the sufficiency of the evidence supporting Counts 1, 2, and 9. He challenges all ten convictions as being against the manifest weight of the evidence. We affirm each conviction, but we must vacate the school specifications attached to Counts 6, 7, and 8 as unsupported by sufficient evidence.
{¶ 23} Applying the "sufficiency of the evidence" standard, a reviewing court determines whether the evidence submitted is legally sufficient to support all elements of the offense charged. State v.Thompkins (1997),
{¶ 24} "While the test for sufficiency requires a determination of whether the state has met its burden of production at trial, a manifest weight challenge questions whether the state has met its burden of persuasion." State v. Gulley (Mar. 15, 2000), 9th Dist. No. 19600. Upon review, an appellate court must consider all of the evidence produced at trial, and in order to overturn a conviction, must find that the jury clearly lost its way and created a "manifest miscarriage of justice."State v. Thompkins (1997),
{¶ 25} The three convictions for complicity in trafficking drugs (Counts 3, 4, and 5) were supported by evidence garnered from three controlled buys performed by the first CI. Complicity is defined by R.C.
{¶ 26} "(A) No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following:
{¶ 27} "(1) Solicit or procure another to commit the offense;
{¶ 28} "(2) Aid or abet another in committing the offense;
{¶ 29} "(3) Conspire with another to commit the offense in violation of section
{¶ 30} "(4) Cause an innocent or irresponsible person to commit the offense."
{¶ 31} A person who engages in complicity may be "prosecuted and punished as if he were the principal offender." R.C.
{¶ 32} Counts 3, 4, and 5 are supported by ample evidence for a jury to conclude beyond a reasonable doubt that appellant aided and abetted Conyers and Carroll in the trafficking of cocaine. Appellant was not merely present at each transaction; the only time Conyers or Carroll presented the CI with cocaine was immediately after taking the CI's money to appellant. The CI did not need to see appellant physically handing the cocaine to Conyers or Carroll to know that appellant was the source, and neither did the jury. Circumstantial evidence carries the same probative value as direct evidence. State v. Jenks (1991),
{¶ 33} Likewise, appellant's three convictions for trafficking drugs at Nowak's apartment (Counts 6, 7, and 8) are supported by sufficient evidence and are not against the manifest weight of the evidence. These three convictions were supported by evidence garnered from the three controlled buys performed by the CI Nowak at his apartment. Nowak identified appellant as the person who brought the crack cocaine to his apartment; Nowak identified appellant as the voice recorded during the transaction; immediately *13 after Nowak's third transaction, appellant was arrested carrying a $100 bill which had matching serial numbers to a bill used in Nowak's transaction.
{¶ 34} While appellant did not challenge his convictions for Counts 1, 2, and 9 for insufficient evidence, we find that the convictions are not against the manifest weight of the evidence. The first buy, constituting the first count, was conducted in essentially the same manner as Counts 3, 4, and 5, with Conyers performing as the middle-man between appellant and the CI. However, the jury could have inferred appellant's direct participation in the transaction from the circumstantial evidence: Appellant patted the CI down because he had previously "caught a case," and appellant offered to "rock [the powder cocaine] up" for the CI; and the fact that Conyers could not deliver cocaine to the CI unless and until appellant was present.
{¶ 35} During the second buy, constituting Count 2, the CI testified that he directly handed appellant his buy money and appellant directly handed the CI three bags of cocaine. When appellant was arrested, a search of his shoe uncovered a bag containing a partially crushed white substance determined to be hydrocodone; possession of hydrocodone constituted the ninth count. Appellant was charged with possession of a dangerous drug, and was not charged with trafficking the hydrocodone; therefore, ample evidence showed appellant possessed this dangerous drug without a prescription in violation of R.C. 4759.21(C)(3) and without the exemption in R.C. 4759.21(C)(4).
{¶ 36} Count 10, engaging in a pattern of corrupt activity, is also supported by sufficient evidence. R.C.
{¶ 37} Appellant argues that the state failed to present sufficient evidence demonstrating the existence of an "organization" or "entity" controlling the trafficking. He does not challenge the evidence regarding a "pattern of corrupt activity." In order to establish that a defendant engaged in a pattern of corrupt activity, the state must show that the defendant was "associated with" an "enterprise." An "enterprise" "includes any individual, sole proprietorship, partnership, limited partnership, corporation, trust, union, government agency, or other legal entity, or any organization, association, or group of persons associated in fact although not a legal entity. `Enterprise' includes illicit as well as licit enterprises." R.C.
{¶ 38} The United States Supreme Court has held with respect to the Federal RICO statute, that the "enterprise" must be separate and distinct from the "pattern of corrupt activity" in which it is engaged.U.S. v. Turkette (1981),
{¶ 39} Appellant argues that while the evidence may show a series of cocaine sales, there is no evidence that these sales were in furtherance of a separate enterprise. However, ample evidence exists demonstrating that appellant was not selling cocaine alone. Conyers and Carroll both assisted in the drug transactions, and appellant frequently used (and seemed to prefer using) Wickerham's house as a place to conduct the transactions. In exchange, both Rider and St. Clair, along with both confidential informants, testified that the buyer was expected to give the "house," Wickerham or the person facilitating the transaction, a cut of the buy product. Appellant together with these individuals constituted a "group of persons" that functioned as a unit trafficking in cocaine pursuant to R.C.
{¶ 40} However, we must conclude that the state failed to prove with sufficient evidence the school enhancement specifications attached to Counts 6, 7, and 8. R.C.
{¶ 41} "(P) An offense is `committed in the vicinity of a school' if the offender commits the offense on school premises, in a school building, or within one thousand feet of the boundaries of any school premises, regardless of whether the offender knows the offense is being committed on school premises, in a school building, or within one thousand feet of the boundaries of any school premises.
{¶ 42} "(Q) `School' means any school operated by a board of education, any community school established under Chapter 3314. of the Revised Code, or any *17
nonpublic school for which the state board of education prescribes minimum standards under section
{¶ 43} The court in Brown, supra, held that since no jury instructions were given for the definitions of "school" or "school premises," the state failed to prove the school enhancement specification. Then, inManley, supra, the Ohio Supreme Court held that failure to instruct the jury with the statutory definition of "school" is not per se plain error pursuant to Crim.R. 52(B). In Manley, the defendant failed to object to the lack of testimony regarding the existence of a school, failed to move for an acquittal on the issue, and failed to object to the lack of jury instructions. In so holding, the Manley court relied on the rule that indirect evidence carries the same probative weight as direct evidence. The officer who had measured the distance from the drug transaction to the Whittier School testified, and three witnesses had testified that the "Whittier School" was within sight of the drug transaction's location.
{¶ 44} Subsequently, State v. Shaw, 7th Dist. No. 03-JE-14,
{¶ 45} "No witness actually testified that Appellant's drug offenses occurred within one thousand feet of an actual school. It appears that each witness assumed the existence of an operation school at this location. However, merely calling the building "Wells school" does not rise to the level required to prove its existence. For all this Court can glean from this record, the building may once have been a school, but is no longer used for that purpose. There must be some evidence on the record on which to base this assumption." Id. at ¶ 56.
{¶ 46} The purpose of the school enhancement specification was "intended to punish more severely those who engage in the sale of illegal drugs in the vicinity of our schools and our children."Manley,
{¶ 47} The Manley court held that failure to give jury instructions regarding the definition of school is reviewed for plain error. It is axiomatic that "[t]he failure to object to a jury instruction constitutes a waiver of any claim of error relative thereto, unless, but *19
for the error, the outcome of the trial clearly would have been otherwise." State v. Underwood (1983),
{¶ 48} Only agent St. Clair testified to the distance of the "school" from the last three transactions, in CI Nowak's apartment. The distance was measured by a non-testifying agent, unlike Brown, Manley, andShaw. This court has previously reversed a school enhancement specification where the state presented insufficient testimony as to how the distance was calculated and presented no documentary evidence supporting the assertions. State v. Olvera (Oct. 15, 1999), 6th Dist. No. WM-98-022, WM-98-023. More importantly, unlike Brown, Manley, andShaw, St. Clair did not state the name of the school, and absolutely no evidence indicated the type of school. We cannot assume the existence of sufficient evidence to support an essential element of the state's case-in-chief. Brown, supra, Olvera, supra. In this context, where the state presented insufficient evidence on its burden of proof, the failure to instruct the jury that a "school" must meet the definition of R.C.
{¶ 49} Accordingly, appellant's first and second assignments of error are not well-taken with respect to the first five counts of trafficking in and complicity to traffic in cocaine, with respect to the three separate counts of trafficking in cocaine and crack cocaine, with respect to the count of possession of a dangerous drug, and with respect to the conviction for engaging in a pattern of corrupt activity. The first assignment of error is well-taken to the extent that insufficient evidence supports the enhancement specification of trafficking within the vicinity of a school.
{¶ 50} Last, appellant challenges his sentence. As explained supra, the school enhancement specifications attached to Counts 6, 7, and 8 are reversed and must be vacated. Because only the school enhancement specifications are vacated, the conviction on Count 6 is now a felony of the fifth degree, the conviction on Count 7 is now a felony of the fourth degree, and the conviction on Count 8 is now a felony of the fifth degree. R.C.
{¶ 51} Considering the remaining counts, appellant mainly argues that the trial court gave insufficient consideration to the principles and purposes of sentencing articulated in R.C.
{¶ 52} R.C.
{¶ 53} Contrary to appellant's suggestion, "no specific language * * * must be used to evince the requisite consideration of the applicable seriousness and recidivism factors. State v. Arnett (2000),
{¶ 54} At the sentencing hearing, the trial court reviewed the pre-sentence investigation report, and stated on the record and in its judgment entry that it had considered the principles and purposes of R.C.
{¶ 55} Although not stated in the assignment of error, appellant also argues that the trial court made improper findings of fact pursuant to statutes severed as unconstitutional by State v. Foster,
{¶ 56} The judgment of the Ottawa County Court of Common Pleas is affirmed in all other respects. This matter is remanded to the trial court in order to resentence *23
appellant on his convictions for Counts 6, 7, and 8. State v. Saxon
(2006),
JUDGMENT REVERSED IN PART AND AFFIRMED IN PART.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.
Peter M. Handwork, J., William J. Skow, J., Thomas J. Osowik, J. Concur.