STATE OF OHIO v. SHAWN K. MCCOY
C.A. No. 25584
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
December 21, 2011
2011-Ohio-6592
MOORE, Judge.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE Nо. CR 09 09 2686
Dated: December 21, 2011
MOORE, Judge.
{¶1} Appellant, Shawn McCoy, appeals from the judgment of the Summit County Court of Common Pleas. This Court affirms.
I.
{¶2} On September 14, 2009, McCoy was indicted on charges of trafficking in heroin in the vicinity of a school, in violation of
{¶3} On August 9, 2010, a jury trial commenced. After the defense rested, McCoy amended his plea to guilty on the driving under suspension charge. Thereafter, the jury found McCoy guilty of the charge of trafficking in heroin within the vicinity of a school and found that
{¶4} McCoy timely filed a notice of appeal and raises one assignment of error for our rеview.
II.
ASSIGNMENT OF ERROR
“THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED [] MCCOY‘S MOTION FOR JUDGMENT OF ACQUITTAL UNDER CRIMINAL RULE 29.”
{¶5} In his sole assignment of error, McCoy argues that his conviction for trafficking in heroin was not supported by sufficient evidence and was against the manifest weight of the evidence. We do not agree.
Sufficiency of the Evidence
{¶6} A motion pursuant to
“An appellate court‘s function whеn 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 defendаnt‘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.” State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus.
{¶8} Here, McCoy chаllenges his conviction for trafficking in heroin within the vicinity of a school in violation of
“(A) No person shall knowingly do any of the following:
“(1) Sell or offer to sell a controlled substance;
“(2) Prepare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance, when the offender knows or has reasonable cause to believe that the controlled substance is intended for sale or resale by the offender or another person. * * *
“(C) Whoever violates division (A) of this section is guilty of one of the following: * * *
“(6) If the drug involved in the violation is heroin or а compound, mixture, preparation, or substance containing heroin, whoever violates division (A) of this section is guilty of trafficking in heroin. The penalty for the offense shall be determined as follows: * * *
“(b) Except as otherwise provided * * *, if the offense was committed in the vicinity of a school or in the vicinity of a juvenile, trafficking in heroin is a felony of the fourth degree[.]”
{¶9} At trial, the State provided the testimony of Tamara Williams, Detective Schmidt, Detective Danzy, Detective Williams, and R. Michael Velten. Ms. Williams testified that, on August 31, 2009, she called McCoy on his cell phone and expressed her desire to purchase heroin from him. The two agreed to meet at the Circle K gas station near East Exchange Street and Arlington Street in Akrоn, Ohio. Ms. Williams’ friend drove her to Circle K in the friend‘s
{¶10} Detective Schmidt of the Akron Police Department‘s Street Narcotics Uniformed Detail (“SNUD“) testified that, at approximately 1:15 or 1:30 р.m., on August 31, 2009, he received a call from what he considered a reliable informant. The informant told Detective Schmidt that a drug deal was to take place at the Circle K on the intersection of East Exchange Street and Arlington Street. The informant further stated that the buyer would arrive in a gray Chrysler LeBaron to purchase drugs from a black male in the parking lot. Acting on this information, Detective Schmidt initiated surveillance of the Circle K. During this surveillance, he witnessed a gray LeBaron рull into the parking lot and park next to a gas pump. No one emerged from the car. Shortly thereafter, a gold Mercedes pulled into the parking lot behind the LeBaron. A black male, whom Detective Schmidt identified in court as McCoy, еxited the Mercedes and walked to the front passenger window of the LeBaron. There, McCoy engaged in a hand-to-hand transaction with the front-seat passenger. Immediately thereafter, the LeBaron pulled out of the parking lot, and Detective Schmidt followed the LeBaron and called for uniformed officers to stop the car.
{¶12} Detective Danzy of the SNUD unit testified that, оn August 31, 2009, he received information from Detective Schmidt regarding a drug transaction that occurred in the parking lot of Circle K. Detective Schmidt requested that Detective Danzy stop a LeBaron that had left Circle K. As Detective Danzy aрproached the vehicle, he noticed the front passenger making movements as Danzy initiated the overhead lights and siren. He approached the passenger side of the vehicle. Ms. Williams was there seated, and in plain view at her feet was a folded up piece of paper with some powder inside of and around it. Detective Danzy told Ms. Williams to exit the vehicle, placed her under arrest, and removed the paper and powder. After Detective Danzy recited to Ms. Williams her Miranda rights, she told him that she had bought heroin for $80.00 from a male named Shawn at the gas station. Detective Danzy identified State‘s Exhibit 4 as the powder substance that he tagged into evidence.
{¶13} Detective Williams of the SNUD unit testified that, on August 31, 2009, he was radioed to make a stop on an individual named Shawn McCoy, who was involved in a drug transaction. Detective Williams arrested McCoy outside of a vehicle parked at the Circle K. Detective Williams searched McCoy and found $200.00 on his person. Detective Williams identified State‘s Exhibit 5 as the money that he found on McCoy.
{¶15} After eliciting testimony from the above witnesses, the State rested. Viewing the evidence in the light most favorable to the prosecution, we conclude that the State produced sufficient evidence to support the determination that McCoy knowingly sold heroin to Ms. Williams on August 31, 2009 for $80.00, and that such activity took plаce within the vicinity of a school. Accordingly, McCoy‘s first assignment of error, as it pertains to the sufficiency of the evidence, is overruled.
Manifest Weight of the Evidence
{¶16} McCoy further argues that his conviction was against the manifest weight of the evidence. When a defendant asserts that his conviction is against the manifest weight of the evidence,
“an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and detеrmine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” State v. Otten (1986), 33 Ohio App.3d 339, 340.
{¶17} In making this determination, this Court is mindful that “[e]vаluating the evidence and assessing credibility are primarily for the trier of fact.” State v. Shue (1994), 97 Ohio App.3d 459, 466, citing Ostendorf-Morris Co. v. Slyman (1982), 6 Ohio App.3d 46, 47 and Crull v. Maple Park Body Shop (1987), 36 Ohio App.3d 153, 154.
{¶18} Here, McCoy cites to inconsistencies in the testimony of the above individuals and himself in support of his argument. McCoy testified that, on the afternoon of August 31,
{¶19} Although inconsistencies existed in the testimony of the State‘s and the defense witnesses, “the jury is free to believe all, part, or none of the testimony of each witness[.]” State v. Cross, 9th Dist. No. 25487, 2011-Ohio-3250, at ¶35, quoting Prince v. Jordan, 9th Dist. No. 04CA008423, 2004-Ohio-7184, at ¶35, citing State v. Jackson (1993), 86 Ohio App.3d 29, 33. We cannot say the jury‘s resolution of these inconsistencies was unreasonable. See State v. Peasley, 9th Dist. No. 25062, 2010-Ohio-4333, at ¶18 citing State v. Morgan, 9th Dist. No. 22848, 2006-Ohio-3921, at ¶35 (“A conviction is not against the manifest weight because the jury chose to credit the State‘s version of events.“).
{¶20} After reviewing the entire record, weighing the inferences and exаmining the credibility of witnesses, we cannot say that the jury clearly lost its way and created a manifest miscarriage of justice in finding McCoy guilty of trafficking in heroin.
{¶21} Accordingly, McCoy‘s first assignment of error, as it pertains to the manifest weight of the evidencе, is overruled.
{¶22} McCoy‘s assignment of error is overruled. The judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into exeсution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellant.
CARLA MOORE
FOR THE COURT
CARR, P. J.
DICKINSON, J.
CONCUR
APPEARANCES:
RHONDA L. KOTNIK, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.