2005 Ohio 6085 | Ohio Ct. App. | 2005
{¶ 3} Appellant was arraigned on July 18, 2003, wherein he pled "not guilty" to all counts. On July 12, 2004, the case was tried to a jury in the Medina County Court of Common Pleas. On July 13, 2004, Appellant was found guilty of all three counts listed in the Indictment. On September 13, 2004, Appellant was sentenced to eight months in prison on Count I, ten months in prison for Count II, and ten months in prison on Count III, with all sentences to be served concurrently.
{¶ 4} Appellant timely appealed his convictions, asserting four assignments of error. For ease of analysis, Appellant's second and third assignments of error have been consolidated.
{¶ 5} In his first assignment of error, Appellant has argued that the trial court erred in denying his motion to suppress and abused its discretion by admitting the contraband into evidence. Specifically, Appellant has argued the evidence should not have been admitted because the State failed to establish a proper chain of custody. We disagree.
{¶ 8} Evid.R. 901(A) states that "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Before evidence may be admitted at trial, the State must establish the chain of custody as part of the authentication and identification requirement of Evid.R. 901(A). Statev. Engle, 9th Dist. No. 05CA0004,
{¶ 9} In the present case, the State sufficiently established that "substitution, alteration or tampering did not occur." Engle, at ¶ 7. The trial court's factual determination that all parties had initialed and sealed the evidence was supported by competent, credible evidence. At trial, Agent Michael Barnhardt of the Medina County Drug Task Force ("MCDTF") testified to the chain of custody concerning the marijuana purchased on January 24, 2003 and the marijuana and anabolic steroids purchased on February 6, 2003. Furthermore, he testified that he seals every evidence bag and that it is secured until it is transported to the Ohio Bureau of Criminal Identification and Investigation ("BCI"). Agent Barnhardt testified to the use of evidence tags, which includes the case number, contents, defendant's name and the chain of custody. He then testified that the chain of custody for the disputed evidence started with the Appellant, went to him, then to the property room, where it was entered into an evidence log and secured for transport to BCI. The evidence was then delivered to BCI, and after it was analyzed, was brought back to the property room where it was secured until the trial. Agent Barnhardt testified that he brought the evidence with him to court. Additionally, he testified that the evidence was wrapped in a BCI evidence bag, which is standard procedure after examination at BCI.
{¶ 10} The State then elicited the testimony of the three BCI forensic scientists who had examined the disputed pieces of evidence. All three witnesses testified that the evidence bore a unique BCI laboratory number, that they had initialed and dated the evidence upon their examination and that the evidence was sealed.
{¶ 11} Because the trial court's determinations were based on competent, credible evidence, and because the State established with a reasonable certainty that tampering, alteration or substitution did not occur, we find that the trial court did not abuse its discretion in admitting the disputed physical evidence. Accordingly, Appellant's first assignment of error is without merit.
{¶ 12} In his second and third assignments of error, Appellant has argued that the trial court erred in denying his motion for acquittal, that there was insufficient evidence to convict him and that his conviction was against the manifest weight of the evidence. Specifically, Appellant has argued that the State's failure to properly establish the chain of custody for the physical evidence introduced at trial created reasonable doubt as to whether the items introduced were in fact the items obtained from Appellant during the alleged transactions. We disagree.
{¶ 13} A review of the sufficiency of the evidence and a review of the manifest weight of the evidence are separate and legally distinct determinations. State v. Gulley (Mar. 15, 2000), 9th Dist. No. 19600, at 3. "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." Id., citing State v. Thompkins (1997),
"An appellate court's function when 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 defendant'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." Id., at paragraph two of the syllabus; see, also, Thompkins,
{¶ 14} In State v. Roberts, this Court explained:
"[S]ufficiency is required to take a case to the jury[.] * * * Thus, a determination that [a] conviction is supported by the weight of the evidence will also be dispositive of the issue of sufficiency." State v.Roberts (Sept. 17, 1997), 9th Dist. No. 96CA006462, at 4. (Emphasis omitted).
{¶ 15} In determining whether a conviction is against the manifest weight of the evidence an appellate court:
"[M]ust review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine 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),
{¶ 16} A weight of the evidence challenge indicates that a greater amount of credible evidence supports one side of the issue than supports the other. Thompkins,
{¶ 17} As to Appellant's narrow argument that his conviction was against the manifest weight of the evidence because the State had failed to establish proper chain of custody, we find, according to our analysis in assignment of error one, that the State's witnesses adequately testified to the chain of custody and to the validity of the disputed pieces of physical evidence.
{¶ 18} As to Appellant's general manifest weight challenge, the State presented testimony from four witnesses. Agent Barnhardt testified to the following. On January 24, 2003, Agent Barnhardt contacted Appellant by phone and discussed the purchase of marijuana. Agent Barnhardt went to Appellant's residence, in Lafeyette Township, Medina County, Ohio where Appellant escorted him to a back bedroom. Agent Barnhardt then exchanged $800 of agency funds with Appellant for the two bags of marijuana. Agent Barnhardt's testimony was supported by audio recordings of the conversations.
{¶ 19} Agent Barnhardt testified that he received a voice mail message from Appellant on February 5, 2003. Agent Barnhardt testified that he returned Appellant's call and Appellant informed him that Appellant could get him two more bags of marijuana for $1,300. Agent Barnhardt contacted Appellant the next day and set up a deal for one pound of marijuana. Agent Barnhardt testified that he went to Appellant's residence where he purchased both the marijuana and 306 anabolic steroid pills from Appellant. The transaction was recorded on audio tape.
{¶ 20} Brooklynn Riordan ("Riordan"), a forensic scientist for BCI, testified that she performed a microscopic test and a color test on State's Exhibit 6. She testified that the exhibit tested positive for marijuana and weighed "a little over" one quarter pound.
{¶ 21} Jeffrey Houser ("Houser"), a forensic scientist for BCI, testified that he performed a microscopic test and a chemical test on State's Exhibit 7. He testified the exhibit tested positive for marijuana and weighed "a little shy" of one pound.
{¶ 22} Laura Risdon ("Risdon"), a forensic scientist, testified that she performed numerous tests on State's Exhibit 8. The exhibit matched the steroid Methandrostenolone. Risdon testified that she counted 306 tablets total.
{¶ 23} Appellant presented the testimony of two witnesses. Bruce Cunningham, a social friend of Appellant, testified solely to the fact that he had never seen Appellant sell drugs. Andrew Cunningham, a social friend of Appellant, testified that he "wouldn't want to say * * * for sure" whether he recognized any of the voices on Agent Barnhardt's recordings. He also testified that he had never seen Appellant sell drugs.
{¶ 24} After careful review of the entire record, weighing the evidence and all reasonable inferences and considering the credibility of the witnesses, this Court cannot conclude that the jury clearly lost its way when it found Appellant guilty of trafficking in marijuana and steroids. The jury was in the best position to evaluate the credibility of witnesses and give proper weight to their testimony. See State v.DeHass (1967),
{¶ 25} Based on the foregoing, this Court cannot find that Appellant's convictions were against the manifest weight of the evidence. Furthermore, as previously stated, "a determination that [a] conviction is supported by the weight of the evidence [is] also * * * dispositive of the issue of sufficiency." Roberts, supra at 4. Accordingly, having found that Appellant's convictions were not against the manifest weight of the evidence, this Court need not discuss further his challenge to the sufficiency of the evidence. Accordingly, we find that Appellant's second and third assignments of error are without merit.
{¶ 26} In his fourth assignment of error, Appellant has argued that the trial court erred in sentencing him to incarceration. Specifically, Appellant has argued the trial court erred in failing to impose community control sanctions. We disagree.
{¶ 27} In general, a reviewing court will not reverse a sentencing decision unless the court finds, by clear and convincing evidence, that the sentence is unsupported by the record or is contrary to law. Statev. Comer,
{¶ 28} The underlying issue in this assignment of error is whether the trial court should have imposed community control sanctions as opposed to a prison term. When determining whether to impose a prison term in felony drug cases, the trial court must look to the statute which was violated. In the present case, Appellant was convicted of trafficking in marijuana, a fifth degree felony, in violation of R.C.
{¶ 29} R.C.
{¶ 30} The sentencing court is also required to consider the seriousness and recidivism factors enumerated in R.C.
{¶ 31} After a thorough review of the record, we find that the trial court complied with the statutory requirements of R.C.
{¶ 32} Appellant has also argued that a trial court may not consider testimony from another criminal case when considering a sentence. First, Appellant offers no authority to substantiate this proposition of law. Second, because the trial court's reference to the prior testimony was made in mitigation of the sentence, we find that any resulting error was not prejudicial to Appellant and therefore harmless. See Crim. R. 52(A).
{¶ 33} Based on the foregoing, Appellant's fourth assignment of error is without merit.
Judgment affirmed.
The Court finds that 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 Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
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. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
Exceptions.
Slaby, P.J., Carr, J., Concur
