State v. JacksonState v. Jackson
Rendered on the 19th day of March, 2010.
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ELIZABETH A. ELLIS, Atty. Reg. No. 0074332, Assistant Prosecutor, 61 Greene Street, Xenia, Ohio 45385 Attorney for Plaintiff-Appellee
DAVID A. SAMS, Atty. Reg. No. 0055235, P. O. Box 40, W. Jeffеrson, Ohio 43162 Attorney for Defendant-Appellant
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FROELICH, J.
{¶ 1} William E. Jackson was found guilty by a jury in the Greene County Court of Common Pleas of two counts of aggravated trаfficking in hydrocodone in an amount exceeding the bulk amount, but not exceeding five times the bulk amount. He appeals from his conviction.
{¶ 2} Jacksоn contends that the trial court erred in failing to give a jury
I
{¶ 3} On February 29, 2008, Jackson was indicted on two counts of aggravаted trafficking in drugs. These offenses were based on two instances in which a confidential informant working with the Greene County Sheriff’s Department purchasеd hydrocodone, or Vicodin, from Jackson under detectives’ supervision. The informant had been “friends” with Jackson for many years. The informant testified аt trial that the purpose of his relationship with Jackson had been “drugs.” He also acknowledged that he had agreed to work with the sheriff’s department on purchasing drugs from Jackson to get out of his own legal trouble related to drug dealing.
{¶ 4} Prior to the first controlled buy, the confidential informant had run into Jackson at a grocery store after not seeing him for a couple of years, and Jackson had offered to sell him pills. After conferring with detectives, the informant arranged to buy Vicodin from Jackson at the Tecumseh Motel in Xenia on September 11, 2007. The informant was wired and videotapеd, was provided with money for the purchase, and was within sight of the detectives at all times during this purchase. He then turned the pills over to the detectives.
{¶ 5} The second controlled buy occurred at Jackson’s home on October 10, 2007, after Jackson called the informant offering to sell him methadone. The informant went to the house with an undercover detective after being searched by
{¶ 6} Jackson was tried by a jury in February 2009. The informant testified at trial, along with several detectives and others. Jackson was convicted on both counts of aggravated trafficking in drugs and was sentenced to twelve months on each offense, to be served concurrently.
{¶ 7} Jackson raises two assignments of error on appeal.
II
{¶ 8} Jackson’s first assignment of error states:
{¶ 9} “THE DEFENDANT-APPELLANT WAS DENIED DUE PROCESS AND A FAIR TRIAL BY STRUCTURAL CONSTITUTIONAL ERROR UNDER ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION WHEN THE JURY WAS NOT GIVEN THE ACCOMPLICE-WITNESS INSTRUCTION REQUIRED BY
{¶ 10} Jackson contends that the trial court erred in failing to instruct the jury on accomplice-witnesses, as provided in
{¶ 11} “If an alleged accomplice of the defendant testifies against the defendant in a case in which the defendant is charged with complicity in the commission of or an attempt to commit an offense, an attempt to commit аn
{¶ 12} “The testimony of an accomplice does not bеcome inadmissible because of his complicity, moral turpitude, or self-interest, but the admitted or claimed complicity of a witness may affeсt his credibility and make his testimony subject to grave suspicion, and require that it be weighed with great caution.
{¶ 13} “It is for you, as jurors, in the light of all the facts presеnted to you from the witness stand, to evaluate such testimony and to determine its quality and worth or its lack of quality and worth.”
{¶ 14} Jackson did not request this instruction or object to the trial court’s failure to give it. The failure to object to jury instructions constitutes a waiver of any claim of error related to the instruction unless, but for the error, the outcome of the trial clearly would have been otherwise. State v. Underwood (1983), 3 Ohio St.3d 12, citing State v. Long (1978), 53 Ohio St.2d 91, paragraph two of the syllabus;
{¶ 15} The legislative purpose of
{¶ 16} We recognize that, in some cases, it might be appropriate to consider whether a witness could have been indicted as an accomplice in determining whether the accomplice-witness instruction is wаrranted. See State v. Howard, Delaware App. No. 06CAA100075, 2007-Ohio-3669, at ¶59; State v. Gillett, Butler App. No. CA2000-10-205, 2002-Ohio-2596, at ¶19. However, “[i]n order to be an accomplice within the meaning of
{¶ 17} Moreover, even if the informant could be considered an accomplice, there was nо plain error. Applying
{¶ 18} Jackson’s first assignment of error is overruled.
III
{¶ 19} Jackson’s second assignment of error states:
{¶ 20} “THE DEFENDANT-APPELLANT WAS DENIED DUE PROCESS AND A FAIR TRIAL BY STRUCTURAL CONSTITUTIONAL ERROR UNDER ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION WHEN HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL.”
{¶ 21} Jackson asserts that he was denied the effective assistance of counsel because his attorney did not request the accomplice-witness instruction.
{¶ 22} To reverse a conviction based on ineffective assistance of counsel, it must be demonstrated both that trial counsel’s conduct fell below an objective
{¶ 23} The second assignment of error is overruled.
IV
{¶ 24} The judgment of the trial court will be affirmed.
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FAIN, J. and GRADY, J., concur.
Copies mailed to:
Elizabeth A. Ellis
David A. Sams
Hon. Stephen A. Wolaver