[Cite as State v. Jones,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY

STATE OF OHIO, : : Plaintiff-Appellee, : Case No: 10CA3366 : v. : : DECISION AND TROY JONES, : JUDGMENT ENTRY : Defendant-Appellant. : File-stamped date: 3-04-11

APPEARANCES:

Gene Meadows, Portsmouth, Ohio, for Appellant.

Mark E. Kuhn, Scioto County Prosecuting Attorney, and Pat Apel, Scioto County Assistant Prosecuting Attorney, Portsmouth, Ohio, for Appellee.

Kline, J.:

{¶1} Troy Jones appeals his convictions for trafficking in heroin and crack

cocaine. On appeal, Jones contends that his convictions are against the manifest

weight of the evidence because his co-defendant was not a credible witness. Because

we find that the jury was free to credit the testimony of Jones’s co-defendant, we

disagree. Jones next contends that the trial court erred when it admitted testimony

related to the nature of the drug trade. Because this evidence was relevant and not

unfairly prejudicial, we disagree. Finally, Jones contends that the trial court committed

plain error by failing to specifically caution the jury against the testimony of his co-

defendant. Because we find that (1) the State corroborated the co-defendant’s

testimony, (2) the State made the jury aware of the co-defendant’s interest in the Scioto App. No. 10CA3366 2

present prosecution, and (3) the trial court properly instructed the jury on determining

the credibility of the witnesses, we disagree. Accordingly, we affirm the judgment of the

trial court.

I.

{¶2} On December 11, 2009, Trooper Nick Lewis of the Ohio State Highway

Patrol received a report that the occupants of a Dodge minivan may have been involved

in acts of vandalism and theft.

{¶3} Approximately a half-hour after receiving this information, Lewis saw a

purple minivan matching the given description at a stoplight. Lewis observed that only

one of the van’s headlights was working. Lewis followed and stopped this van.

{¶4} The van contained two occupants, driver Joseph Runyon and passenger

Jones. During the stop, Lewis noticed the smell of marijuana emanating from the van,

and he also observed an open container present in the van. After backup arrived, Lewis

removed the occupants from the van and searched them. Jones admitted that he

possessed marijuana. During the search, Lewis also found some small “packaging

envelopes” on Jones, which Lewis testified were often used to package cocaine and

heroin for sale to individual users.

{¶5} Lewis, along with another trooper, searched the van but found no

additional incriminating evidence. During the search of the van, an officer placed both

Runyon and Jones in one of the police cruisers. Lewis then took Jones to the nearest

Ohio State Highway Patrol post in order to issue a citation for possession of marijuana.

Meanwhile, Lewis had released Runyon, and Runyon followed Lewis and Jones to the

Highway Patrol post in order to give Jones a ride after he received his citation. While Scioto App. No. 10CA3366 3

doing paperwork for the citation, Lewis listened to the tape recording of a conversation

between Jones and Runyon that took place in the police cruiser while the police had

searched the van. In this conversation, Runyon and Jones made statements that

indicated they possessed crack cocaine and heroin.

{¶6} When Lewis confronted Runyon, Runyon admitted that whilst in the back

of a police cruiser, he had helped Jones remove some heroin that Jones had concealed

in his shoe. Runyon then took this heroin and hid it in the van. Also, Runyon admitted

he had searched Jones to remove a separate stash of crack cocaine but did not find it.

Runyon admitted that he was driving Jones to Columbus so that Jones could get a

supply of drugs. Runyon also stated that he had received an oxycontin pill as

compensation for driving. After Lewis confronted Runyon, Runyon led Lewis to the

heroin he had removed from Jones and placed in the van’s trash receptacle. A later

search of the rear of Lewis’s cruiser revealed the stash of crack cocaine had fallen to

the floor of the vehicle.

{¶7} An expert witness for the State testified that the recovered heroin

weighed 11.96 grams and the recovered crack cocaine weighed 11.43 grams. Another

witness for the State, Detective Todd Bryant, testified on how the drug trade functioned.

{¶8} On January 21, 2010, the Scioto County Grand Jury returned a five-

count indictment against Jones. The indictment accused Jones of 1) trafficking in crack

cocaine, in violation of R.C. 2925.03(A)(2) & (C)(4)(e); 2) possession of crack cocaine,

in violation of R.C. 2925.11(A) & (C)(4)(d); 3) trafficking in heroin, in violation of R.C.

2925.03(A)(2) & (C)(6)(e); 4) possession of heroin, in violation of R.C. 2925.11(A)(2) &

(C)(6)(d); and 5) tampering with evidence, in violation of R.C. 2921.12(A)(1). A jury Scioto App. No. 10CA3366 4

returned guilty verdicts on all five counts. The court merged each possession conviction

with its corresponding trafficking conviction. The court then sentenced Jones to seven

years incarceration for each trafficking conviction. The court also sentenced Jones to

twelve-months incarceration for the tampering with evidence conviction. The court

ordered Jones to serve all sentences consecutively for a total aggregate sentence of

fifteen years.

{¶9} Jones appeals and raises the following assignments of error: I. “The

verdict and conviction is against the manifest weight of the evidence presented at trial

because the Plaintiff-Appellee failed to prove the Defendant-Appellant had possession

of the illegal substances.” II. “The trial court abused its discretion and erred to the

prejudice of Defendant-Appellant by allowing prejudicial testimony in violation of Evid.R.

403(A).” III. “The trial court committed plain error when it failed to properly charge the

jury on the weight to be given to the testimony of the Co-Defendant.”

II.

{¶10} Jones first contends that his drug convictions are against the manifest

weight of the evidence. Specifically, Jones contends that, other than the co-defendant’s

testimony, no evidence showed that he possessed the drugs. And the co-defendant

was not a credible witness.

{¶11} “To be guilty of trafficking under R.C. 2925.03(A)(2), the offender must

knowingly prepare for shipment, ship, transport, deliver, prepare for distribution, or

distribute a controlled substance, knowing, or having reason to know, that the

substance is intended for sale. In order to ship a controlled substance, deliver it,

distribute it, or prepare it for shipping, etc., the offender must ‘hav[e] control over’ it. Scioto App. No. 10CA3366 5

R.C. 2925.01(K) (defining ‘possession’).” State v. Cabrales,

, 2008-

Ohio-1625, at ¶30.

{¶12} Although Jones focuses on the “possession” element, the trial court

merged both possession offenses into the two trafficking offenses. Thus, based on the

above analysis in Cabrales, we will focus on the “control” element of the two trafficking

offenses. That is, the State had to prove beyond a reasonable doubt that Jones had

control over the crack cocaine and heroin.

{¶13} When determining whether a criminal conviction is against the manifest

weight of the evidence, we “will not reverse a conviction where there is substantial

evidence upon which the [trier of fact] could reasonably conclude that all the elements

of an offense have been proven beyond a reasonable doubt.” State v. Eskridge (1988),

, at paragraph two of the syllabus. See, also, State v. Smith, Pickaway

App. No. 06CA7,

. We “must review the entire record, weigh the

evidence and all reasonable inferences, consider the credibility of the 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 granted.” Smith at ¶41, citing State v. Garrow (1995),

; State v. Martin (1983),

. But, “[o]n

the trial of a case, * * * the weight to be given the evidence and the credibility of the

witnesses are primarily for the trier of the facts.” State v. DeHass (1967),

, at paragraph one of the syllabus.

{¶14} Jones contends that “[t]here was no testimony, other than that of the

Co-Defendant, that the Defendant-Appellant was conscious of the presence of the Scioto App. No. 10CA3366 6

object or that the Defendant-Appellant was in the vicinity of the contraband.” Jones’s

Brief at 7. In other words, Jones contends that the jury could not have credited

Runyon’s testimony that Jones possessed (controlled) the drugs at issue.1 Aside from

pointing to Runyon’s status as a co-defendant, Jones provides no particular explanation

for why Runyon’s testimony was not creditable.

{¶15} Having reviewed the transcript, we do not find that this is an exceptional

case where the jury’s crediting of Runyon’s testimony resulted in a manifest miscarriage

of justice. See, e.g., State v. Lanier, Mahoning App. No. 09 MA 97,

(rejecting a manifest weight challenge to a co-defendant’s testimony both on the

basis of motive and alleged inconsistencies); State v. Ambartsoumov, Franklin App. No.

09AP-1054,

, at ¶78-87 (rejecting a manifest weight challenge to a co-

defendant’s testimony on the basis of alleged inconsistencies); State v. Cooper,

Cuyahoga App. No. 92911,

, at ¶15-19 (same as Lanier); State v.

Pettway, Cuyahoga App. No. 91716,

, at ¶62 (“The jury weighed [the

witness’s] credibility and it, as the fact finder, was free to believe all, none, or some of

what he said during trial, regardless of his status as a codefendant or any

inconsistencies between his statement to the police and what he testified to at trial.”). In

short, Jones merely points to Runyon’s potential motive to lie. The record does indicate

that Runyon initially gave an inconsistent account to the police. The jury, however, was

made aware of the issue and was free to believe all, none, or some of what Runyon

said during trial. See id. at ¶62. In addition, the recording of Jones and Runyon’s

1 We note that Jones concludes his argument section with a statement that his “conviction should be reversed and the case dismissed based upon the insufficiency of the evidence.” However, Jones’s assignment of error only implicates manifest weight review, and Jones concedes that there was testimony at trial that established his possession (control) of the heroin and crack cocaine. Accordingly, we do not review Jones’s conviction for the sufficiency of the evidence. Scioto App. No. 10CA3366 7

conversation in the back of the police vehicle tended to indicate that Jones had physical

possession (control) of the drugs at issue. Thus, there was evidence in the record that

corroborated co-defendant Runyon’s trial testimony.

{¶16} In conclusion, we find that there is substantial evidence in the record

upon which the trier of fact could reasonably conclude that all the elements of the

offenses of trafficking in crack cocaine and trafficking in heroin have been proven

beyond a reasonable doubt.

{¶17} Accordingly, we overrule Jones’s first assignment of error.

III.

{¶18} In his second assignment of error, Jones contends that the trial court

erred when it admitted the testimony of Detective Todd Bryant.

{¶19} “‘[T]he admission or exclusion of relevant evidence rests within the

sound discretion of the trial court.’” State v. Ahmed,

, 2004-Ohio-

4190, at ¶79, quoting State v. Sage (1987),

, paragraph two of the

syllabus. “[T]he term ‘abuse of discretion’ connotes more than an error of law; it implies

that the court acted unreasonably, arbitrarily or unconscionably.” Rigby v. Lake Cty.

(1991),

, citing Blakemore v. Blakemore (1983),

.

{¶20} Here, Jones contends that that the admission of Detective Bryant’s

testimony violated Evid.R. 403(A). This provision prohibits the admission of evidence “if

its probative value is substantially outweighed by the danger of unfair prejudice, of

confusion of the issues, or of misleading the jury.” Evid.R. 403(A). Bryant’s testimony

concerned the nature of the drug trade. Bryant testified as to how addicts typically Scioto App. No. 10CA3366 8

smoke crack cocaine, the typical quantities that users purchased of crack cocaine and

heroin, the street value of both heroin and crack cocaine, and finally some of the slang

words associated with the drug trade.

{¶21} Jones contends that this testimony “was highly prejudicial and did not

serve any other purpose than to inflame the Jury and prejudice the Jury towards the

Defendant.” We disagree. Among other crimes, the State was prosecuting Jones for

trafficking in heroin and crack cocaine in violation of R.C. 2925.03(A)(2). Among other

elements, this statute requires the State to prove that Jones knew or had reasonable

cause to believe “that the controlled substance is intended for sale or resale by the

offender or another person.” R.C. 2925.03(A)(2).

{¶22} Bryant’s testimony tended to indicate that the quantities that Jones

possessed, more than ten grams, were greater than the quantity of either crack cocaine

or heroin that a user might carry for personal use. This allowed the jury to make the

reasonable inference that Jones intended to sell the heroin and crack cocaine to

another person. Bryant’s other testimony, relating to how users would ingest either

crack cocaine or heroin, indicated that Jones’s possession may have been inconsistent

with personal use.

{¶23} Several times in his brief, Jones contends that the testimony of Bryant

was unfairly prejudicial. But Jones provides no basis for considering this evidence

“unfairly prejudicial.” “Unfairly prejudicial evidence ‘is that quality of evidence which

might result in an improper basis for a jury decision. Consequently, if the evidence

arouses the jury’s emotional sympathies, evokes a sense of horror, or appeals to an

instinct to punish, the evidence may be unfairly prejudicial. Usually, although not Scioto App. No. 10CA3366 9

always, unfairly prejudicial evidence appeals to the jury’s emotions rather than

intellect.’” State v. Boyd, Athens App. No. 09CA14,

, at ¶28, quoting

Oberlin v. Akron Gen. Med. Ctr.,

,

(other citation

omitted). Jones provides no explanation for why this evidence might result in an

improper basis for a jury decision, and no such explanation is apparent from the record.

We cannot say that the trial court abused its discretion in admitting this evidence.

{¶24} Accordingly, we overrule Jones’s second assignment of error.

IV.

{¶25} In his third assignment of error, Jones contends that the trial court

committed plain error when it failed to specifically charge the jury regarding the weight

to be given to the testimony of a co-defendant.

{¶26} “Generally, a trial court has broad discretion in deciding how to fashion

jury instructions. A trial court must not, however, fail to ‘fully and completely give the

jury all instructions which are relevant and necessary for the jury to weigh the evidence

and discharge its duty as the fact finder.’ State v. Comen (1990),

,

[at] paragraph two of the syllabus. Additionally, a trial court may not omit a requested

instruction, if such instruction is ‘a correct, pertinent statement of the law and [is]

appropriate to the facts * * *.’ State v. Lessin[,]

, [

]

(quoting State v. Nelson (1973),

, [at] paragraph one of the syllabus).”

Smith v. Redecker, Athens App. No. 08CA33,

, at ¶51.

{¶27} The court in this case gave a fairly standard instruction on how the jury

ought to consider the credibility of the witnesses. Jones does not contend that this

instruction was wrong; rather he contends that it was insufficient. Jones contends that Scioto App. No. 10CA3366 10

the trial court was obliged to give a specific instruction regarding the weight of a co-

defendant or accomplice’s testimony because of the importance of Runyon’s testimony

to the State’s case.

{¶28} Jones made no request for this instruction before the trial court.

Accordingly, Jones bears the heavy burden of demonstrating that the trial court

committed plain error. See State v. Judy, Ross App. No. 08CA3013,

, citing State v. Wamsley,

,

, at ¶1. “Inherent

in the [plain-error] rule are three limits placed on reviewing courts for correcting plain

error.” State v. Payne,

,

, at ¶15. “‘First, there must

be an error, i.e., a deviation from the legal rule. * * * Second, the error must be plain. To

be ‘plain’ within the meaning of Crim.R. 52(B), an error must be an ‘obvious’ defect in

the trial proceedings. * * * Third, the error must have affected ‘substantial rights.’ We

have interpreted this aspect of the rule to mean that the trial court’s error must have

affected the outcome of the trial.’” Id. at ¶16, quoting State v. Barnes,

,

(omissions in original). We will notice plain error “only to prevent a

manifest miscarriage of justice.” State v. Long (1978),

, at paragraph

three of syllabus. And “[r]eversal is warranted only if the outcome of the trial clearly

would have been different absent the error.” State v. Hill,

, 2001-

Ohio-141, citing Long at paragraph two of the syllabus.

{¶29} Notwithstanding Jones’s heavy burden to show plain error, his brief fails

to identify what the proposed instruction would be. Presumably, Jones refers to an

instruction like the following: “The testimony of an accomplice does not become

inadmissible because of his complicity, moral turpitude, or self-interest, but the admitted Scioto App. No. 10CA3366 11

or claimed complicity of a witness may affect his credibility and make his testimony

subject to grave suspicion, and require that it be weighed with great caution.” R.C.

2923.03(D). It is not at all clear that this statute actually applies in the present case

because it is unclear whether Runyon was indicted as an accomplice. See State v.

Wickline (1990),

(“Certainly, a person who is guilty of complicity

must first be found guilty of complicity by either a judge or a jury. Obviously, the first

step in finding a person guilty of an offense is by indicting that person. So, at the very

least, an ‘accomplice’ must be a person indicted for the crime of complicity.”); but, see,

State v. Church (Apr. 30, 1999), Clark App. No. 98 CA 36 (finding that the evidence in

the record did not support a finding that a witness was an accomplice and therefore the

trial court correctly refused to give the instruction); State v. Schlupe (Apr. 10, 1991),

Summit App. No. 14645 (finding that evidence in the record indicated that two witnesses

were accomplices and the instruction should have been given); State v. Williams (July

27, 1988), Hamilton App. No. C-870384 (“[I]t was incumbent upon the court to instruct

the jury in compliance with R.C. 2923.03(D) if, upon the evidence adduced at trial,

reasonable minds could have concluded that [the witness] was an accomplice as

defined under R.C. 2923.03(A).”). However, even if we presume the statute applies,

Jones nonetheless fails to show plain error.

{¶30} “‘Ohio courts generally look to three factors to determine whether a trial

court’s failure to give the accomplice instruction constitutes plain error: (1) whether the

accomplice’s testimony was corroborated by other evidence introduced at trial; (2)

whether the jury was aware from the accomplice’s testimony that he benefited from

agreeing to testify against the defendant; and/or (3) whether the jury was instructed Scioto App. No. 10CA3366 12

generally regarding its duty to evaluate the credibility of the witnesses and its province

to determine what testimony is worthy of belief.’” State v. Bentley, Portage App. No.

2004-P-0053,

, quoting State v. Woodson, Franklin App. No.

03AP-736,

.

{¶31} Here, we have little difficulty in finding that any error on the part of the

trial court was not plain error. First, the recording of Jones and Runyon’s conversation

in the back of the trooper’s vehicle corroborated Runyon’s account. The general tenor

of the conversation indicated that Jones had physical possession (control) of the crack

cocaine and heroin, at least at that time. Second, the jury was made aware of Runyon’s

plea agreement for possession of heroin and crack cocaine. Trial Transcript at 119.

Third, the trial court instructed the jury on its duty to determine the credibility of the

witnesses. Id. at 178. Under these circumstances, we find that Jones has failed to

carry his burden to demonstrate that the trial court committed plain error.

{¶32} Accordingly, we overrule Jones’s third assignment of error.

V.

{¶33} Having overruled all of Jones’s assignments of error, we affirm the

judgment of the trial court.

JUDGMENT AFFIRMED. Scioto App. No. 10CA3366 13

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Scioto County Court of Common Pleas to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.

Abele, J.: Concurs in Judgment and Opinion. Harsha, P.J.: Concurs in Judgment Only.

For the Court

BY:_____________________________ Roger L. Kline, Judge