State v. Smith
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[Cite as State v. Smith, 2011-Ohio-997.] IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY STATE OF OHIO, PLAINTIFF-APPELLEE, CASE NO. 13-10-24 v. MARQUIS SMITH, OPINION DEFENDANT-APPELLANT. Appeal from Seneca County Common Pleas Court Trial Court No. 09 CR 0278 Judgment Affirmed Date of Decision: March 7, 2011 APPEARANCES: James S. Nordholt, Jr. for Appellant Derek W. DeVine and Rhonda L. Best for Appellee Case No. 13-10-24 PRESTON, J. {¶1} Defendant-appellant, Marquis Smith (hereinafter Smith ), appeals the judgment of conviction and sentence entered against him by the Seneca County Court of Common Pleas, following a jury trial in which Smith was found guilty of one count of trafficking in crack cocaine. For the reasons that follow, we affirm. {¶2} On December 16, 2009, the Seneca County Grand Jury returned an indictment against Smith charging him with the following counts: count one (1) of Trafficking in Cocaine with a specification that the offense was committed in the vicinity of a school in violation of R.C. 2925.03(A)(1), (C)(4)(b), a felony of the fourth degree; and count two (2) of Trafficking in Crack Cocaine in violation of R.C. 2925.03(A)(1), (C)(4)(c), a felony of the fourth degree. On January 7, 2010, Smith was arraigned and entered pleas of not guilty to both counts in the indictment. {¶3} A jury trial was held on May 10-11, 2010. After the presentation of the evidence, the jury returned verdicts of not guilty as to count one (1) Trafficking in Cocaine with specification, and guilty as to count two (2) Trafficking in Crack Cocaine. {¶4} A sentencing hearing was held on May 18, 2010, and Smith was sentenced to seventeen (17) months in prison. -2- Case No. 13-10-24 {¶5} Smith now appeals and raises the following two assignments of error. ASSIGNMENT OF ERROR NO. I THE VERDICT OF GUILTY RENDERED BY THE JURY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. {¶6} In his first assignment of error, Smith claims that his conviction was against the manifest weight of the evidence. {¶7} An appellate court s function when reviewing the weight of the evidence is to determine whether the greater amount of credible evidence supports the verdict. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541. In reviewing whether the trial court s judgment was against the weight of the evidence, the appellate court sits as a thirteenth juror and examines the conflicting testimony. Id. In doing so, this Court must review the entire record, weigh the evidence and all of the reasonable inferences, consider the credibility of witnesses, and determine whether in resolving conflicts in the evidence, the factfinder 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. Andrews, 3d Dist. No. 1-05-70, 2006-Ohio-3764, ¶30, citing State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717; Thompkins, 78 Ohio St.3d at 387. {¶8} Here, Smith was found guilty on one count of trafficking in drugs in violation of R.C. 2925.03(A)(1), which states that [n]o person shall knowingly * -3- Case No. 13-10-24 * * (1) [s]ell or offer to sell a controlled substance. However, on appeal, Smith only disputes the identification of him as the person who had sold the drugs to the confidential informant. {¶9} The record indicates that, on January 8, 2009 and January 11, 2009, the Seneca County Drug Task Force conducted controlled buy operations at 26 Minerva Street and 233 Franklin Street, Tiffin, Seneca County, Ohio, after having been informed by a confidential informant that he would be able to purchase crack cocaine from Smith. {¶10} Detective Charles W. Boyer with the City of Tiffin testified that he had been the officer in charge of the two operations since it had been his confidential informant that had originally come to him with information that he could purchase crack cocaine from the defendant. (May 10, 2010 Tr. at 119-120, 125). Detective Boyer stated that he, along with two other officers, conducted two controlled buys: the first one on January 8, 2009 at 26 Minerva Street; and the second one on January 11, 2009 at 233 Franklin Street. (Id. at 121). On January 11, 2009, Detective Boyer said that O Leary, his confidential informant, contacted him and informed him that he would have the opportunity to buy drugs from someone known as Parkay (or PK ) at 233 Franklin Street in Tiffin. (Id. at 125, 135). Detective Boyer said that they knew Smith was known as PK or Parkay and -4- Case No. 13-10-24 that at the time Smith was residing at 233 Franklin Street, the same residence as the target location for the second controlled buy operation. (Id. at 135-36). {¶11} That night, Detective Boyer, along with two other officers, met O Leary at a pre-determined location, and conducted their standard preoperational procedure, which included searching O Leary for weapons or other contraband, placing an audio recording device on O Leary, and giving O Leary covert issued funds of $150 to be used for purchasing the drugs. (Id. at 136-40). Detective Boyer said that his particular responsibility during this second controlled buy operation had been visual surveillance, while the other two officers had been responsible for the audio surveillance. (Id.). The two officers dropped off O Leary close to the target location and O Leary walked up to the residence at 233 Franklin Street, while Detective Boyer said that he hid next to a garage in a nearby alley. (Id. at 139). Because O Leary had arrived at the residence prior to Detective Boyer having set-up the camera in the alley, Detective Boyer said that he was only able to videotape O Leary leaving the back door of Smith s residence. (Id. at 141); (State s Ex. 9). Then Detective Boyer played the videotape to the jury, which he indicated showed O Leary walking out of the back door of Smith s residence. (Id. at 141, 145); (State s Ex. 9). {¶12} Once O Leary left the residence at 233 Franklin Street, Detective Boyer said that he met the other two officers and O Leary at the pre-determined -5- Case No. 13-10-24 location, at which time they then conducted a post-operational protocol. (Id. at 141). This post-operational protocol included bagging and tagging the suspected cocaine as evidence and searching O Leary for any additional contraband. (Id.). Detective Boyer testified that they did not find any other suspected controlled substance on O Leary during the post-operational search. (Id.). {¶13} On cross-examination, Detective Boyer acknowledged that he did not personally observe Smith sell the drugs to O Leary since both of the transactions had taken place inside the residences. (Id. at 146). In addition, Detective Boyer admitted that he did not request any fingerprint testing on the baggies of drugs, but he said that that was because the identity of the seller had never been in question. (Id. at 136, 158). As Detective Boyer explained, [t]he only time our unit would specifically ask for fingerprints and/or DNA is when the identity of the suspect is in question and we don t know who it is. In this in this, or in these investigations, we had him positively identified through a photograph array. Plus, we purchased, on the second operation, from his residence so identity wasn t in question to us. (Id. at 136). Overall, Detective Boyer said that based on the audio recordings, O Leary s identification of Smith through a photograph array, and the observation of O Leary going into Smith s residence on January 11, 2009, they believed that O Leary had purchased the suspected cocaine from Smith. (Id. at 159). -6- Case No. 13-10-24 {¶14} Next, the confidential informant, Terry O Leary, testified. O Leary explained that he had assisted the police in buying drugs from Smith twice in January 2009. (Id. at 167). He said that he had been paid for both transactions, and in particular had received $75.00 for the second controlled buy operation. (Id.). With respect to the second operation, O Leary said that prior to going to the house that night he had spoken to Smith about buying drugs again from him. (Id. at 178). O Leary said that they had discussed the amount of money and drugs, the type of drugs, and the time and place of the transaction, which he said was to occur at 233 Franklin Street. (Id. at 179). O Leary testified that before walking to the target location, he had allowed the officers to place an audio transmitter device on him, which had recorded the transaction that night. (Id. at 174-75); (State s Ex. 7). O Leary further said that when he arrived at the residence, he and Smith discussed automobiles before they counted out the money and exchanged it for the drugs. (Id. at 179). Finally, O Leary stated that after receiving the drugs, he left the residence and walked back a ways, then was picked up by the officers, and taken back to the pre-determined location. (Id. at 179-80). {¶15} State s Exhibit 7 was the audio recording from the second operation on January 11, 2009, which was played at trial. After the recording was played, O Leary identified all of the voices in the recording, and in particular O Leary identified the person who said just give me two fifties, I ll owe you 30, as -7- Case No. 13-10-24 Smith. (Id. at 184-86); (State s Ex. 7). O Leary explained that at that point in time they had been exchanging the money for the drugs. (Id. at 184-85); (State s Ex. 7). {¶16} Overall, on both direct and cross-examination, O Leary admitted to having a past criminal record, which included convictions of receiving stolen property in 2007, failure to comply with the order or signal of a police officer in 2006, and two obstruction convictions and one theft conviction in 2002. (Id. at 165, 186-87). Nevertheless, O Leary identified Smith as the person who had sold him the drugs. (Id. at 166). {¶17} Finally, Smith took the stand and testified that he never sold any crack cocaine to O Leary. (May 11, 2010 Tr. at 241). Smith admitted that his nickname was Parkay, or PK, but he stated that he had received the nickname when he had been younger from his family. (Id. at 243). Smith explained that he had not even been at the Minerva house on January 8, 2009. (Id. at 247). However, he admitted to living at 233 Franklin Street in January 2009, and being the only male living at the residence at that time. (Id. at 247). With respect to the controlled buy transaction that had taken place on January 11, 2009, Smith explained: Honestly, I mean, I m not going to sit here and try to make up a story or persuade you guys or any kind of way. But he never entered my house, for one. And anybody can walk into that -8- Case No. 13-10-24 door that he supposedly came out of. That is a back patio porch there. And that door is always open. On the side of that porch is another door to the main house. So anybody can come and go as they please into that door. And it s kind of hard for me to explain him coming out of there because, like I said, I don t know no more than what you guys do. All I know is what he said, the evidence that these people have right now, so (May 11, 2010 Tr. at 247-48). Based on the above, the jury returned a verdict of guilty as to trafficking in crack cocaine on the night of January 11, 2009. {¶18} On appeal, Smith argues that the only real issue in contention in the case was the identification of him as the person who sold the drugs to the confidential informant. Smith claims that the only evidence presented identifying him as the person who had sold the drugs was testimony from the confidential informant, Terry O Leary. However, Smith claims that O Leary s testimony was conflicting and suspect. After reviewing the above evidence, we disagree and believe that there was enough evidence presented to the jury that it was reasonable to believe that Smith had been the one who had sold the crack cocaine to O Leary. {¶19} Here, the confidential informant testified that he had purchased crack cocaine from Smith on January 11, 2009. Detective Boyer testified that the identity of the seller had never been in question that based on the audio recordings, O Leary s identification of Smith through a photograph array, and the observation of O Leary going into Smith s residence on January 11, 2009, they believed that O Leary had purchased the suspected cocaine from Smith. -9- Case No. 13-10-24 Moreover, this transaction had taken place at Smith s residence. Smith even admitted that he had been the only male living in the residence at the time, and at trial, unlike the first controlled buy operation, Smith could not provide any explanation as to his actions the night of January 11, 2009. In addition, there was an audio recording of the transaction that was played for the jury, along with corroborating testimony and a video that showed a man, who was identified as the confidential informant, leaving Smith s residence the night of January 11, 2009. {¶20} Essentially, Smith s arguments that his conviction was against the manifest weight of the evidence are simply attacks based on the credibility of the confidential informant. However, the confidential informant s testimony and credibility were matters for the trier of fact to weigh and determine, and the trier of fact was free to accept or reject any and all of the evidence offered by Smith and the State. Thompkins, 78 Ohio St.3d at 387. Thus, based on the above evidence, we cannot conclude that the jury clearly lost its way and created a manifest injustice by finding Smith guilty of trafficking crack cocaine. {¶21} Smith additionally claims that the fact that he was found not guilty of one count of trafficking, but guilty of the other count of trafficking clearly indicates that the jury lost its way since the evidence presented on the two operations was identical. As Smith states in his appellate brief, there was no apparent reason for the jury to disbelieve the testimony of Mr. O Leary that he -10- Case No. 13-10-24 bought drugs from the defendant January 8 and yet apparently believe his testimony that he bought drugs [from the defendant] on January 11. (Appellant s Brief at 11). {¶22} Consistency between verdicts on several counts of an indictment is unnecessary where the defendant is convicted on one or some counts and acquitted on others; the conviction generally will be upheld irrespective of its rational incompatibility with the acquittal. State v. Trewartha, 165 Ohio App.3d 91, 2005-Ohio-5697, 844 N.E.2d 1218, ¶15, citing State v. Adams (1978), 53 Ohio St.2d 223, 374 N.E.2d 137, vacated in part on other grounds in Adams v. Ohio, 439 U.S. 811, 99 S.Ct. 69, 58 L.Ed.2d 103. Every count of a multiple count indictment is considered to be distinct and independent of all the other counts; therefore, inconsistent verdicts on different counts do not justify overturning a verdict of guilt. Id., citing State v. Hicks (1989), 43 Ohio St.3d 72, 78, 538 N.E.2d 1030; State v. Brown (1984), 12 Ohio St.3d 147, 465 N.E.2d 889, syllabus; State v. Washington (1998), 126 Ohio App.3d 264, 276, 710 N.E.2d 307. As the Ohio Supreme Court has stated, the sanctity of the jury verdict should be preserved and could not be upset by speculation or inquiry into such matters to resolve the inconsistency. State v. Lovejoy (1997), 79 Ohio St.3d 440, 444, 683 N.E.2d 1112. -11- Case No. 13-10-24 {¶23} Thus, the fact that Smith was found guilty of one count of trafficking but not of the other count of trafficking cannot be attributed solely to the jury s insecurity, confusion, or doubts as to the adequacy of evidence on the issue of identification. Despite Smith s claims that the evidence presented in regards to the two operations was identical, we find that there were notable differences in the evidence regarding the first controlled buy operation and the second controlled buy operation. First and foremost, the two controlled buy operations took place on two separate days and occurred at two different places. Second, even though O Leary testified that it had been Smith that had sold him the drugs during the first operation, O Leary also said that there had been some kind of party going on when he arrived at the house and that there had been at least four or five other people there along with Smith. (May 10, 2010 Tr. at 204). Furthermore, unlike the second controlled buy operation, which had taken place at Smith s residence, there was nothing to directly connect Smith to the residence at 26 Minerva Street. Finally, only with respect to the first controlled buy operation were there parts of O Leary s testimony that directly contradicted with Detective Boyer s testimony. (May 10, 2010 Tr. at 133-35, 198-203). Thus, it is clear that there were credibility issues concerning the first controlled buy operations that were not present in the second controlled buy operation. -12- Case No. 13-10-24 {¶24} As illustrated above, there were notable differences in the evidence as to the two controlled buy operations; however, we are not permitted to speculate about the reason for the inconsistency in considering the validity of a verdict. We find that the fact that Smith was found guilty of one count of trafficking but not of the other count of trafficking is not enough in and of itself to undermine the final judgment of the trafficking count of which Smith was convicted by the jury, especially since that conviction, as we stated above, was not against the manifest weight of the evidence. {¶25} Smith s first assignment of error is, therefore, overruled. ASSIGNMENT OF ERROR NO. II THE COURT ERRED WHEN IT RESPONDED TO A QUESTION FROM THE JURY WITH AN ANSWER IN VIOLATION OF THE PRINCIPLES SET FORTH IN STATE V. HOWARD AND COMPOUNDED THAT ERROR BY FAILING TO REVIEW THE QUESTION AND ANSWER WITH COUNSEL. {¶26} In his second assignment of error, Smith argues that the trial court erred when it responded to a jury question without giving the appropriate supplemental instruction to the jury as stated by the Ohio Supreme Court in State v. Howard (1989), 42 Ohio St.3d 18, 537 N.E.2d 188. Smith additionally claims that the trial court erred by failing to review the question and answer with counsel prior to responding to the jury s question. -13- Case No. 13-10-24 {¶27} According to the trial transcripts, the jury went into deliberations at 12:15 p.m. on May 11, 2010 and eventually came back to render its verdict at 7:00 p.m. that same day. In between 12:15 p.m. and 7:00 p.m. the jury submitted four questions to the trial court. For the first two questions, the trial court called in counsel and discussed the jury s questions and its proposed answers on the record. With respect to the fourth jury question, the trial court called in counsel again and presented its proposed answer to the parties; however, after discussing the fourth jury question and proposed answer, the trial court informed the parties that the jury had presented a third question to the trial court and that it had dealt with the question without involving counsel. (May 11, 2010 Jury Question and Verdict Tr. at 4). In particular, the trial court stated that the jury had asked, What do we do now? and it informed counsel that it had responded, Keep deliberating. (Id.).1 {¶28} In general, any communication with the jury by either the trial court or court personnel, outside the presence of the defendant or parties to the case, is error and may warrant a new trial. State v. Cook, 10th Dist. No. 05AP-515, 2006-Ohio-3443, ¶35, citing State v. Schiebel (1990), 55 Ohio St.3d 71, 83, 564 N.E.2d 54. Such private communications outside the presence of the defendant does not, however, create a conclusive presumption of prejudice. [Citations omitted.] The communication must have been of a substantive nature and in some 1 We note that neither party disputes the fact that the particular question and answer were given even though the actual jury questions and answers were not included in the record. -14- Case No. 13-10-24 way prejudicial to the party complaining. Schiebel, 55 Ohio St.3d at 84. Thus, if the communication is not substantive, then the error is considered harmless. Cook, 2006-Ohio-3443, at ¶35, citing State v. Allen (1995), 73 Ohio St.3d 626, 630, 653 N.E.2d 675. In particular, substantive matters have been found to include discussions concerning legal issues involved in the case, applicable law, the charge to the jury, or a fact in controversy. Cook, 2006-Ohio-3443, at ¶36, quoting Orenski v. Zaremba Mgt. Co., 8th Dist. No. 80402, 2002-Ohio-3101. Nevertheless, even if the communication involves a substantive issue, the defendant still must demonstrate that he was prejudiced by the communication. Cook, 2006-Ohio-3443, at ¶36, citing State v. Crumedy, 8th Dist. No. 84083, 2004-Ohio-6006. {¶29} While it may have been error for the trial court to answer the jury s question outside the presence of the parties, we note that Smith failed to object to the trial court s answer to the jury when he was informed of the trial court s actions and failed to request that a Howard instruction be given. Therefore, we find that Smith has waived all but plain error. See Crim.R. 52(B). Plain error occurs if, but for the error, the outcome of the trial would have been different. State v. Nicholas (1993), 66 Ohio St.3d 431, 436, 613 N.E.2d 225. After reviewing the record, we find that, while it may have been error to handle the question outside the presence of the parties, the trial court s response was not -15- Case No. 13-10-24 substantive. The trial court did not address any applicable law to the case, any fact in controversy, nor any legal issue. Therefore, absent a showing of prejudice, the communication would be considered harmless error. {¶30} Smith claims that there was clearly prejudice in this case since the jury found him guilty of one count of trafficking but not guilty of the other count of trafficking based on the same exact evidence. However, as we discussed above, there were notable differences in the evidence as between the two counts, one of which was the fact that the two counts dealt with two different transactions on two separate and distinct dates and locations. Furthermore, the fact that there are inconsistent verdicts on different counts does not justify overturning a verdict of guilt. {¶31} In addition, Smith argues that this question implicated the need for a supplemental charge to a deadlock jury as required under Howard. The instruction formulated by the Ohio Supreme Court in Howard is to be given to a jury, when after suitable deliberation, a determination has been made that the jury is deadlocked in its decision. State v. Gary, 3d Dist. No. 5-99-51, 2000Ohio-1679, at *5, quoting State v. Minnis (Feb. 11, 1992), 10th Dist. No. 91AP844. A trial court s decision to give a Howard instruction is within its discretion and will not be reversed absent an abuse of discretion. State v. Lightner, 3d Dist. No. 6-09-02, 2009-Ohio-4443, ¶11, citing State v. Thomas, 2nd Dist. No. 2000-16- Case No. 13-10-24 CA-43, 2001-Ohio-1353, citing State v. King (Mar. 22, 2000), 7th Dist. No. 95 CA 163. Furthermore, this Court has previously stated that [t]here is no bright line rule that may be used to determine when a jury is deadlocked and when the supplemental charge should be read to the jury. Gary, 3d Dist. No. 5-99-51, 2000-Ohio-1679, at *5, citing Minnis, 10th Dist. No. 91AP-844. See, also, Lightner, 2009-Ohio-4443, at ¶¶9-16. However, in this particular case, contrary to Smith s arguments, the jury question did not state that the jury was deadlocked; rather, the question was general and non-descript far from a declaration that they were deadlocked. Because we are unable to determine from its face the precise nature of the jury s question, we cannot say that the trial court abused its discretion in failing to give the supplemental instruction for deadlocked juries set forth in Howard. {¶32} Therefore, Smith s second assignment of error is overruled. {¶33} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court. Judgment Affirmed SHAW and WILLAMOWSKI, J.J., concur. /jlr -17-
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