State v. GarrettState v. Garrett
Donald W. White, Clermont County Prosecuting Attorney, David H. Hoffmann, 123 North Third Street, Batavia, Ohio 45103, for plaintiff-appellee
Christine Y. Jones, 114 East 8th Street, Suite 400, Cincinnati, Ohio 45202, for defendant-appellant
O P I N I O N
BRESSLER, P.J.
{¶1} Defendant-appellant, Ronald A. Garrett, appeals his conviction for trafficking in cocaine and marijuana, and aggravated drug possession.1 We affirm the trial court‘s decision.
{¶3} Because a finding in one assignment of error will be dispositive as to the other two assignments of error, we have elected to address the three assignments of error together. See, e.g., State v. Smith, Fayette App. No. CA2006-08-030, 2009-Ohio-197, ¶62-80.
{¶4} Assignment of Error No. 1:
{¶5} “THE JUR[Y] ERRED TO THE PREJUDICE OF THE DEFENDANT-APPELLANT BY FINDING HIM GUILTY OF TRAFFICKING IN COCAINE, TRAFFICKING IN MARIJUANA, AND AGGRAVATED POSSESSION OF DRUGS * * *, AS THE FINDINGS WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE.”
{¶6} Assignment of Error No. 2:
{¶7} “THE JURY ERRED TO THE PREJUDICE OF THE DEFENDANT-APPELLANT BY FINDING HIM GUILTY OF TRAFFICKING IN COCAINE, TRAFFICKING IN MARIJUANA, AND AGGRAVATED POSSESSION OF DRUGS * * *, AS THOSE FINDINGS WERE CONTRARY TO LAW.”
{¶9} “THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT-APPELLANT BY OVERRULING HIS MOTIONS FOR ACQUITTAL UNDER OHIO CRIMINAL PROCEDURE RULE 29.”
{¶10} In his assignments of error, appellant argues: the trial court erred in overruling his
{¶11} Arguments regarding the sufficiency of evidence and the manifest weight of the evidence are reviewed under two different standards. State v. Martin (1983), 20 Ohio App.3d 172, 175. “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), Summit App. No. CA19600, 2000 WL 277908, at *1, citing State v. Thompkins, 78 Ohio St.3d 380, 390, 1997-Ohio-52 (Cook, J., concurring).
{¶12} Sufficiency of evidence is governed by
{¶14} “An appellate court may only reverse a jury verdict as against the manifest weight of the evidence where there is a unanimous disagreement with the verdict of the jury.” Harry, 2008-Ohio-6380 at ¶45, citing State v. Gibbs (1999), 134 Ohio App.3d 247, 255-56. “Under the manifest weight of the evidence standard, a reviewing court must examine the entire record, weigh all of the evidence and reasonable inferences, consider the credibility of witnesses and determine ‘whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.‘” Harry at ¶45, citing Martin, 20 Ohio App.3d at 172-21; Gibbs at 256; Thompkins, 78 Ohio St.3d at 387.
{¶15} Sufficiency of the evidence is required before a case may be taken to a jury; so where a conviction is supported by the manifest weight of the evidence there is necessarily a finding of sufficiency. Thompkins, 78 Ohio St.3d at 388; State v. Wilson, Warren App. No. CA2006-01-007, 2007-Ohio-2298, ¶35. Thus, where a conviction is supported by the manifest weight of the evidence it is also dispositive as to a claim of insufficiency of the
{¶16} Appellant argues that he should not have been convicted for two counts of trafficking because the cocaine sale that occurred was conducted at the same time and with the same animus. We may assume from this argument that appellant is only asserting that he should have only been convicted of one count of trafficking, rather than two. We find appellant‘s convictions for two counts of trafficking in cocaine is not against the manifest weight of the evidence.
{¶17} “Where the defendant‘s conduct * * * results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.”
{¶18}
{¶19} Illustrative of this issue is the seminal case of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180. In the first part of Blockburger, the Supreme Court held that that each sale of a discrete quantity of the same drug to the same purchaser on two different
{¶20} In this case, appellant sold cocaine to two separate individuals who were working in concert with one another on behalf of the Clermont County Multi-Jurisdictional Drug Task Force. In the first transaction, the agent purchased approximately three grams of cocaine (actual weight .98 grams) from appellant for $200. After appellant handed the agent that amount of cocaine and after appellant received his payment, he engaged in a completely separate transaction with the confidential informant. In the second transaction, appellant sold approximately a half of a gram of cocaine (actual weight .33 grams) to the confidential informant for $50. Although each transaction occurred in appellant‘s hallway, within a relatively short space of time, they constituted two separate sales of cocaine to two separate individuals.
{¶21} Temporal proximity notwithstanding, appellant engaged in two discrete transactions involving two separate and distinct physical exchanges of cocaine for money. As such, the sales constituted two separate violations of
{¶22} Appellant also argues that he should not have been convicted of trafficking in marijuana or aggravated possession of drugs because there was “ongoing pedestrian traffic in [appellant‘s] home, different clothing was found everywhere, and no fingerprints or direct evidence linked [appellant] to the drugs found.” We find appellant‘s convictions for trafficking in marijuana and aggravated possession of drugs are not against the manifest weight of the
{¶23} It is well-established that circumstantial evidence may be used to establish any element of any crime. Jenks, 61 Ohio St.3d at paragraph one of the syllabus.
{¶24} Upon executing the search warrant at approximately 2:50 a.m. on March 28, 2007, the police located appellant in a basement bedroom with $137 in his pocket. The police also found a Brink‘s lockbox underneath the bed, and appellant indicated which key, from a keychain on the nightstand, would open the lockbox. Inside the Brink‘s lockbox, the police found approximately 172 grams of marijuana apportioned into three plastic bags; jewelry (two watches, nine rings, and a gold bracelet); a $20 bill; and two stolen firearms.4 The room also contained a digital scale and a box of clear sandwich bags. In another room, police located appellant‘s wallet which contained $770 and in an upstairs bedroom they found $1,646 in cash. Although it was never definitively established that the basement bedroom belonged to appellant, appellant and several of his personal items were found in the room. Based on this evidence, and a review of the record, we find that appellant‘s conviction for marijuana trafficking was not against the manifest weight of the evidence, as the jury did not lose its way or engage in a miscarriage of justice.
{¶25} “No person shall knowingly obtain, possess, or use a controlled substance.”
{¶26} As noted above, appellant was found in the basement bedroom at the time the search warrant was executed. Along with the items mentioned previously, the police located one methadone pill in the nightstand, next to the bed, in the basement bedroom. Inside the Brink‘s lockbox, underneath the bed in the basement bedroom, the police found ecstasy pills wrapped in a plastic bag and oxycodone pills. Appellant was clearly capable of exercising dominion and control over the drugs found, as evidenced by the fact that appellant indicated which key opened the lockbox, in which a majority of the pills were found. The fact that appellant was located in the basement bedroom and in close proximity to all of the drugs is also indicative of constructive possession. Therefore, after reviewing the record and weighing all of the evidence, we find that the jury did not lose its way and create such a
{¶27} In conclusion, we overrule appellant‘s first, second and third assignments of error.
{¶28} Judgment affirmed.
RINGLAND and HENDRICKSON, JJ., concur.