State v. McCreeState v. McCree
Thomas W. Kidd, Jr., P.O. Box 231, Harveysburg, Ohio 45032, for defendant-appellant
O P I N I O N
BRESSLER, J.
{¶1} Defendant-appellant, Eric McCree, appeals his conviction and sentence in the Butler County Court of Common Pleas for trafficking in cocaine and possession of cocaine.
{¶2} Appellant‘s convictions arose from two unrelated instances:
Trafficking in Cocaine
{¶3} Appellant‘s trafficking conviction stemmed from a May 22, 2008 interaction with Detective Joe Thompson. On that date, Thompson was undercover with a vice unit and
{¶4} Due to the proximity of the transaction site to Jefferson Elementary School, appellant was charged with trafficking in cocaine within the vicinity of a school or juvenile, a felony of the fourth degree. Appellant‘s charge of trafficking in cocaine was tried before a jury in the Butler County Court of Common Pleas. The jury returned a verdict finding appellant guilty.
Possession of Cocaine
{¶5} On October 3, 2009, an anonymous caller reported a suspected hand-to-hand drug transaction. The caller indicated that a black male and a young white female had been standing on a corner and made a hand-to-hand transaction with the occupants of a silver vehicle. According to the caller, the black male and young white female would be sitting on a nearby stoop and the black male appeared to have narcotics in a cellophane baggie. Responding officers found appellant and a young white female at the scene. Among those to respond was Officer Eric Fryman who asked appellant if it would be alright if he searched him
{¶6} Appellant moved to suppress the evidence discovered by Officer Fryman. The trial court found appellant consented to the pat-downs and denied the motion. Appellant then entered a plea of no contest to possession of cocaine.
{¶7} The trial court sentenced appellant to 17 months in prison for trafficking in cocaine and a consecutive six-month prison term for possession of cocaine.
{¶8} The convictions were treated as separate cases by the trial court but have been consolidated for appeal.
{¶9} Assignment of Error No. 1:
{¶10} “THE TRIAL COURT ERRED IN FAILING TO SUPPRESS EVIDENCE WHEN THE SEARCH EXCEEDED THE CONSENT GIVEN BY MR. MCCREE.”
{¶12} Under the
{¶13} Consent to a search may be limited in scope or revoked at any time, even after the search has begun. State v. Riggins, Hamilton App. No. C-030626, 2004-Ohio-4247, ¶27. However, “a suspect who has voluntarily consented to a search of his person for drugs may effectively withdraw his consent only by unequivocal conduct, in the form of an act, a statement, or some combination of the two, that is inconsistent with the consent previously given, and that, to an objective person, would reasonably communicate the withdrawal of consent.” Id. at ¶36. Naturally, “an equivocal act or statement cannot reasonably be interpreted as conveying an indication that consent has been withdrawn.” Burton v. United States (C.A.D.C.1994), 657 A.2d 741, 747. The state bears the burden of proof to demonstrate that the suspect voluntarily consented to a search and that the search was performed within the scope of that consent. State v. Mack (1997), 118 Ohio App.3d 516, 520.
{¶14} On appeal, appellant asserts that he never “grant[ed] consent to search his person once let alone three times ***.” Nevertheless, the credibility of witnesses on a motion
{¶15} Officer Fryman testified that he patted appellant down three times and that prior to the first two pat-downs appellant consented to the procedure. Preceding the third pat-down, Officer Fryman asked appellant to undo his belt. While appellant verbally indicated unwillingness to undo his belt, he immediately thereafter consented to another pat-down without giving limiting instructions. Appellant did not verbally limit the scope of consent to areas other than his waistline, nor did he contest when Officer Fryman began undoing the belt himself. Likewise, appellant took no physical action which would have indicated revocation of the consent given prior to the third pat-down. See State v. Jordan (Mar. 31, 1995), Clark App. No. 94-CA-55 (suspect blocking policeman‘s access to his pocket constituted revocation of consent). Thus, we find that appellant‘s conduct fell short of a reasonably unequivocal revocation of consent and find no error in the trial court‘s denial of appellant‘s motion to suppress evidence.1
{¶16} Appellant‘s first assignment of error is therefore overruled.
{¶17} Assignment of Error No. 2:
{¶18} “THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW AND/OR AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE TO SUSTAIN MR. MCCREE‘S CONVICTION FOR TRAFFICKING IN COCAINE.”
{¶19} Appellant asserts that the evidence presented by the state is insufficient to
{¶20} Sufficiency is a test of adequacy and the reviewing court must determine “whether the evidence is legally sufficient to support the jury verdict as a matter of law.” State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52. “In reviewing a challenge to the sufficiency of the evidence, 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.” Baberton v. Jenney, 126 Ohio St.3d 5, 2010-Ohio-2420, ¶14. Proof beyond a reasonable doubt is “proof of such character that an ordinary person would be willing to rely and act upon it in the most important of his own affairs.”
{¶21} In contrast to a challenge of sufficiency of the evidence, “a manifest weight challenge concerns the inclination of the greater amount of credible evidence offered in a trial to support one side of the issue rather than the other.” State v. Moshos, Clinton App. No. CA2009-06-008, 2010-Ohio-735, ¶28. The relevant inquiry under a manifest weight challenge is “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.” Id. However, reversal of a case on weight of the evidence is only ordered in exceptional circumstances. Thompkins, 78 Ohio St. 3d at 387.
{¶22} “An appellate court considering whether a conviction was against the manifest weight of the evidence must review the entire record, weighing the evidence and all reasonable inferences, and consider the credibility of the witnesses.” Moshos, 2010-Ohio-735 at ¶28. Nonetheless, “the weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts.” State v. DeHass, 10 Ohio St.2d 230, 231. “[I]n other words, although an appellate court must act as a ‘thirteenth juror’ when considering
{¶23} Sufficiency of the evidence and weight of the evidence are quantitatively and qualitatively different. Id. at 386. “Because sufficiency is required to take a case to the jury, a finding that a conviction is supported by the weight of the evidence must necessarily include a finding of sufficiency.” Moshos, 2010-Ohio-735, ¶29, quoting State v. Smith, Fayette App. No. CA2006-08-030, 2009-Ohio-197, ¶73. Thus, a court‘s finding that a conviction is supported by the manifest weight of the evidence disposes of a challenge to the sufficiency of the evidence. Id.
{¶24} The statute under which appellant was convicted prohibits a person from knowingly selling or offering to sell a controlled substance.
{¶25} Detective Thompson testified at the trial as to the interaction between himself and appellant on May 22, 2008. In his testimony, Detective Thompson stated that appellant asked what he wanted and responded, “I got you, dude,” when Thompson indicated that he wished to purchase $40 worth of crack cocaine. Furthermore, Thompson testified that he handed the purchase money directly to appellant after asking for the crack. Appellant‘s
{¶26} The state likewise presented the testimony of Brian Scowden of the Hamilton County Crime Lab. Scowden testified that the evidence the lab received in appellant‘s trafficking case showed the recovered substance to be .35 grams of crack cocaine.
{¶27} Furthermore, we find no error in appellant‘s conviction of trafficking in cocaine as a felony of the fourth degree.
{¶28} Trafficking in cocaine becomes a felony of the fourth degree when committed in the vicinity of a school or in the vicinity of a juvenile.
{¶29} At trial, the state proffered the testimony of Joani Copas, director of communications for the Hamilton City School District. Copas testified that on May 22, 2008, Jefferson Elementary School was open and operating as a school.
{¶31} Based upon the testimony of these witnesses, the jury was presented with adequate evidence to find that appellant was within 1,000 feet of a school when he offered to sell Thompson the crack, thus warranting conviction of a felony of the fourth degree.
{¶32} Appellant‘s second assignment of error is overruled.
{¶33} Assignment of Error No. 3:
{¶34} “THE COURT ERRED IN SENTENCING MR. MCCREE CONTRARY TO LAW BY IMPOSING CONSECUTIVE SENTENCES WITHOUT MAKING THE FINDINGS SET FORTH IN
{¶35} In appellant‘s third assignment of error, he argues that the trial court was required to make the findings set forth in
{¶36} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, the Ohio Supreme Court found sections of Ohio‘s felony sentencing statutes,
{¶37} The Ohio Supreme Court recently rejected the contention that the decision in Ice revived
{¶38} In accordance with the Ohio Supreme Court‘s recent holding in Hodge, appellant‘s third assignment of error is overruled.
{¶39} The judgment of the trial court is affirmed.
POWELL, P.J., and HENDRICKSON, J., concur.