[Cite as State v. Moorer,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 13-12-22

v.

ANDRE N. MOORER, OPINION

DEFENDANT-APPELLANT.

Appeal from Seneca County Common Pleas Court Trial Court No. 11-CR-0177

Judgment Affirmed in Part and Reversed in Part

Date of Decision: February 25, 2013

APPEARANCES:

Scott B. Johnson for Appellant

Derek W. DeVine and Heather N. Jans for Appellee Case No. 13-12-22

WILLAMOWSKI, J.

{¶1} Defendant-Appellant, Andre N. Moorer (“Moorer”), appeals the

judgment of the Seneca County Court of Common Pleas, after a jury found him

guilty of two counts of trafficking in cocaine. On appeal, Moorer claims that the

trial court erred by permitting the introduction of evidence of prior bad acts to the

jury, contrary to Evid.R. 404(B), and that the jury’s verdict was against the

manifest weight of the evidence. For the reasons set forth below, the judgment is

affirmed in part and reversed in part.

{¶2} On August 11, 2011, the Seneca County Grand Jury returned a two-

count indictment charging Moorer with trafficking in cocaine with school

specifications in violation of R.C. 2925.03(A),(C)(4)(b), each a felony of the

fourth degree. The charges arose as a result of two undercover drug buys, with the

Seneca County Drug Task Force METRICH Enforcement Unit (“METRICH,” or

“the Task Force”) using a confidential informant (“CI”). Both drug buys occurred

on September 28, 2010, with the same CI, who purchased crack cocaine from

Moorer at his residence, which was within 1,000 feet of a school. Each drug buy

was video and audio recorded by the Task Force.

{¶3} A two-day jury trial was held on February 9 and 10, 2012. Detective

Donald Joseph, a member of the Task Force and a fifteen-year veteran with the

Seneca County Sheriff’s Department, was the case manager in charge of both

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operations. He testified about the protocol and procedures that were utilized with

the CI before, during, and after the drug-buys.

{¶4} Detective Joseph explained these two operations followed the typical

protocol that was used in controlled purchase operations. As standard “pre-

operational protocol,” the CI and law enforcement met at a pre-determined

location. The CI was searched and patted down to be sure she had no contraband

on her person, and she was fitted with an audio transmitter and recorder which

serves two functions: 1) to transmit in real time to the listener all the sounds

captured by the device during the operation; and, 2) to digitally record all the

sounds captured by the device during the operation. Detective Joseph explained

that during the pre-operational protocol, the CI is also issued the money to

purchase the illegal drugs anticipated to be obtained in the operation. The CI was

then dropped off a short distance from Moorer’s apartment, and she was watched

and videotaped the entire time she was walking to the apartment, until she entered

the building. While the detective could not see her when she was inside the

building, he monitored the audio recording device, both for purposes of the drug

buy, and to assure the safety of the CI.

{¶5} After she left the apartment, the CI was also closely watched until she

was picked up by Detective Armstrong. At this time, she turned over the drugs

she had obtained, and she was again searched. Receipts and documents for the

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money and drugs were signed and recorded. Detective Joseph explained that the

CI in this case was paid $50 plus given $54.50 in pre-paid cell phone minutes for

her assistance with the first drug buy, and she was given consideration for a theft

charge in the municipal court in exchange for her assistance with the second buy.

{¶6} Next, Kristi, the CI, testified as to how and why she was working for

the Task Force as a CI, and she described what occurred before, during, and after

the two drug buys. She explained how she had arranged to purchase some crack

cocaine from Moorer, and how she went to Moorer’s apartment two times on

September 28th. She testified that the first time she stayed for several minutes,

and purchased what turned out to be .5 grams of crack cocaine for $100. She also

testified that the second buy occurred a little later in the same day, and she

purchased a smaller amount of crack cocaine with the $80 that had been provided

to her by the detectives.

{¶7} Detective Matthew Armstrong is an officer with the Fostoria Police

Department who is assigned to the Drug Task Force, where he primarily does drug

investigations, and has been involved with at least 300 to 400 such operations.

Detective Armstrong testified as to how he assisted Detective Joseph with these

two operations, how he was present before and after the drug purchases for the

pre- and post-buy protocols, and how it was his assignment to observe and video-

record the CI from outside the apartment building, as she went inside and when

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she came out. Detective Armstrong’s testimony confirmed and added to the facts

and details of the testimony of Detective Joseph and the CI, including all of the

procedures that were followed, to ensure that there was no doubt that the drugs

had come from Moorer.

{¶8} The State also offered the testimony of two other officers who testified

as to their involvement in transporting the evidence and the chain of custody for

the drugs. The two substances purchased by the CI were transported to the Ohio

Bureau of Criminal Identification and Investigation (“BCI&I”), where they were

analyzed and found to contain .5 grams and .3 grams of cocaine, respectively.

Scott Dobransy, an experienced forensic scientist at BCI&I, testified concerning

the testing procedures he used and confirmed the findings in his laboratory reports,

which were admitted into evidence as Exhibits 3 and 7.

{¶9} The county engineer, who was a licensed professional engineer as well

as a licensed professional surveyor, testified as to the methodology that was used

to determine that Moorer’s apartment, where the drug buys occurred, was located

517.94 feet from school grounds, and 608.21 feet from the entrance of the school.

The principal of the elementary school also testified to confirm the

address/location of the school.

{¶10} Evidence admitted on behalf of the State included video and audio

recordings of each of the drug buys, which were played for the jury; the cocaine;

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the METRICH covert funds receipts; the drug analysis laboratory results; and a

letter and diagram/map from the county engineer.

{¶11} The defense’s sole witness was Cory McDonald (“McDonald”), a

friend of Moorer who was “hanging out” in the apartment during both of the times

that the CI entered on September 28th. McDonald testified that he was watching

TV in the living room, along with Moorer’s son. He testified that the CI came in

for a few minutes during the first visit, and then for a much shorter time later that

day. However, McDonald testified that he did not see Moorer give anything to the

CI. (Tr. 275) McDonald did not know why she came to the apartment, nor did he

ask, but he claimed he did not see Moorer and the CI exchange anything. (Tr.

275)

{¶12} The jury found Moorer guilty on both counts, including the school

specifications. After ordering a presentence investigation report, a sentencing

hearing was held on April 30, 2012. The trial court sentenced Moorer to thirteen

months in prison for each of the two counts, with the sentences to be served

concurrent to each other and concurrent to another sentence imposed in a second

Seneca County case. The trial court then ordered that these sentences be imposed

consecutively to his sentence in a third Seneca County case, resulting in a twenty-

four month prison term for the three separate cases. Moorer was also ordered to

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pay $284.50 in restitution to the Seneca County Drug Task Force METRICH

Enforcement Unit.

{¶13} It is from this judgment that Moorer now appeals, raising the

following two assignments of error for our review.

First Assignment of Error

The trial court erred by permitting the introduction of evidence of prior acts to the jury contrary to Rule 404(B) of the Ohio Evidence Rules.

Second Assignment of Error

The Defendant’s conviction was not supported by the manifest weight of the evidence.

First Assignment of Error – Improper Evidence of Prior Bad Acts

{¶14} Moorer complains that several of the witnesses gave testimony

alluding to prior criminal acts by Moorer. Moorer argues that this testimony was

contrary to Evid.R. 404(B) and was not in compliance with a motion in limine he

filed to exclude any references by the State’s witnesses to any “prior possible

convictions, arrests or contacts” with law enforcement officers. (Mot. in Limine,

p. 4)

{¶15} The first specific instance that Moorer complains of was when

Detective Joseph was on the stand and the following exchange took place when he

was questioned by the State:

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Q. During your service with the Drug Task Force, have you become familiar with a person by the name of Andre M. Moorer?

A. Yeah. Yes.

Q. Are you familiar with him by another name?

A. He goes by Dre.

Q. And have you conducted any controlled purchase operations involving Mr. Andre Moorer?

A. Yes, I have.

Q. And have you been personally involved in those operations?

A. Yes, I was.

Q. And do you know who Andre Moorer is?

A. I do.

Q. Is Mr. Moorer in the courtroom today?

A. Yes, he is.

Q. Could you please tell the jury where he is seated, what he is wearing?

[Detective Joseph describes where Moorer is sitting and what he is wearing.]

(Tr. 139-140).

{¶16} The second alleged instance of improper testimony was when

Detective Armstrong took the stand and the State asked him essentially the same

questions. Detective Armstrong answered the questions in the same way as

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Detective Joseph. (Tr. 250-251). No objections were raised to the detectives’

testimony.

{¶17} Moorer’s third complaint involves the CI’s testimony that was given

when the State questioned her about how she knew Moorer. (Tr. at 183 et. seq.)

The CI testified that she had been friends with his wife and saw them both “a few

times a month.” Then, the State asked:

Q. Have you bought drugs from him in the past?

A. Yeah.

Q. What type of drugs did you buy from him?

A. Uhm, maybe ecstasy and --

(Tr., at 183.) At this point, defense counsel objected and a side-bar was held off

the record. At the conclusion, the trial court overruled the objection. The

testimony proceeded with the State asking the CI to identify Moorer in the

courtroom, and then proceeded to ask the CI questions about the current drug

buys.

{¶18} Moorer claims that this testimony was of “prior illegal drug

trafficking” and that it was prejudicial to Moorer. In addition to being

inadmissible under Evid.R. 404(B), he claims that the questioning was contrary to

the State’s “agreement” in response to his motion in limine, when the State

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indicated that it would not discuss Detective Joseph’s prior involvement with

Moorer in conjunction with the Drug Task Force.

{¶19} Evidence of prior criminal acts, wholly independent of the crime for

which the defendant is on trial, is inadmissible to show propensity. See State v.

Wogenstahl,

,

. However, there are

exceptions to the general rule. Evid.R. 404(B) permits “[e]vidence of other

crimes, wrongs, or acts” to be admitted for purposes “such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or

accident.” State v. Williams, -- Ohio St.3d --,

. Evid.R.

404(B) states in relevant part:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. * * *

{¶20} A motion in limine is a request, made in advance of the actual

presentation of the evidence and usually prior to trial, that the court limits or

excludes certain evidence which the movant believes is improper. State v. Black,

,

(3d Dist.) “The motion asks the

court to exclude the evidence unless and until the court is first shown that the

material is relevant and proper.”

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{¶21} Moorer filed a motion in limine asking that the State be enjoined

from mentioning any prior bad acts that would be inadmissible under the Rules of

Evidence, and “more specifically,” to exclude any references by the State’s

witnesses to any “prior arrests,” “police contacts,” or “convictions.” Although the

trial court did not specifically rule on this motion, the State responded that it

“plan[ned] to introduce only admissible evidence.” The matter was discussed

briefly with the trial court before trial when defense counsel indicated that it was

satisfied with the State’s agreement that Detective Joseph would not testify that he

had “prior dealings” with Moorer “in his role as a member of the Task Force.”

(Tr. 6)

{¶22} “‘The admission or exclusion of relevant evidence rests within the

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

,

2006–Ohio–5084, ¶ 74, quoting State v. Sage,

, (1987),

paragraph two of the syllabus. An abuse of discretion is more than an error of

judgment; rather, it implies that the trial court's attitude was unreasonable,

arbitrary, or unconscionable. State v. Adams,

(1980).

{¶23} First, we note that no objection was made during trial to the

testimony of either of the Drug Task Force detectives. Therefore, Moorer has

waived all but plain error with regard to the statements made by those witnesses.

State v. Johnson,

,

(2d Dist.) Plain

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error does not exist unless it can be said that, but for the error, the outcome of the

trial clearly would have been otherwise. State v. Long,

(1978),

paragraph two of the syllabus. In order to have plain error under Crim.R. 52(B),

there must be an error, the error must be an “obvious” defect in the trial

proceedings, and the error must have affected “substantial rights.” State v. Barnes,

,

. “Notice of plain error under Crim.R. 52(B)

is to be taken with the utmost caution, under exceptional circumstances and only

to prevent a manifest miscarriage of justice.” State v. Drummond, 3d Dist. No. 16-

11-08,

.

{¶24} In the case at bar, Moorer contends that the statements by the

detectives were impermissible because they were evidence of prior acts causing

prejudice to him. However, the trial itself involved two counts of trafficking in

drugs where both detectives were “personally” involved in both drug buy

operations. The line of questioning by the State appears to be setting the

foundation for the detectives’ involvement in the current cases, and for their

identification of Moorer as the person who sold the drugs. Thus, when the

detectives testified that they knew Moorer through their involvement with the

Drug Task Force, and they have conducted controlled purchase operations with

Moorer, it was to establish their personal knowledge of the testimony they were

about to give concerning the operations with the CI that occurred on September

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28, 2010. The fact that the statements were in the plural was because there were

two separate purchase operations that occurred that day. Then, immediately after

the questions were asked, the witnesses were asked to identify Moorer in court.

The questions established the foundation for the detectives’ ability to identify

Moorer as the defendant in this case. There was no reference or discussion of any

prior dealings with Moorer, nor was there was mention of any arrests or

convictions that would cause a reasonable person to believe that the testimony of

the detectives would be inadmissible under Evid.R. 404(B). We do not find that

the testimony of the detectives amounted to any kind of error, and it certainly did

not constitute plain error.

{¶25} An objection was raised to the testimony of the CI, but the trial court

overruled the objection and allowed the admission of the CI’s testimony that she

had bought drugs from Moorer in the past. This was not testimony concerning any

prior “convictions, arrests or contacts” with law enforcement officers, that Moorer

was concerned about excluding, but merely testimony concerning the CI’s

relationship with Moorer, how she knew him, and how she came to be purchasing

drugs form him the afternoon of the controlled drug buys. Testimony about any

other drugs was quickly cut off by the objection, and the State did not raise that

matter again. It was already apparent that the CI and the Task Force knew that

they could purchase cocaine from Moorer, as this was the basis of the entire covert

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operation. Therefore, not only did the CI not provide any new information to the

jury, but the line of questioning falls under the exceptions to Evid.R. 404(B) in

that it was testimony concerning the CI’s knowledge that she would have the

opportunity to purchase drugs from him again, because she had done so in the

past.

{¶26} The admission of this testimony did not constitute an abuse of

discretion on the part of the trial court. The first assignment of error is overruled.

Second Assignment of Error

{¶27} In the second assignment of error, Moorer argues that the jury's

verdict was against the manifest weight of the evidence for several reasons.

Moorer asserts that none of the officers actually saw the transactions take place

between the CI and Moorer; the actual exchanges were not filmed by the hidden

camera; and, the audio recording did not specifically capture any incriminating

dialogue. Furthermore, the male officers who conducted the pre- and post-

operational searches of the female CI admitted that they did not search under her

clothing or inside body cavities. He claims that the CI was not a reliable witness

because she had prior drug convictions and her motivation for her participation in

this was to get her own theft charges lowered. And finally, a third person who was

present, Cory McDonald, testified that he did not see any drug transactions take

place that day.

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{¶28} In determining if a conviction is against the manifest weight of the

evidence, an appellate court “review[s] the entire record, weighs the evidence and

all reasonable inferences, considers the credibility of witnesses and determines

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

and a new trial ordered.” State v. Mendoza,

, 346–347 (3d

Dist. 2000), quoting State v. Martin,

, (1st Dist. 1983);

see, also, State v. Thompkins,

(1997). A new trial should

be granted only in the exceptional case in which the evidence weighs heavily

against conviction.

.

{¶29} Although the appellate court acts as a “thirteenth juror,” it still must

give due deference to the findings made by the fact-finder. State v. Thompson,

(8th Dist. 1998). The fact-finder, being the jury, occupies a

superior position in determining credibility.

When examining witness

credibility, “[t]he choice between credible witnesses and their conflicting

testimony rests solely with the finder of fact and an appellate court may not

substitute its own judgment for that of the finder of fact.” State v. Awan,

(1986). To reverse the judgment of a trial court on the weight of

the evidence based upon a jury's verdict, a unanimous concurrence of all three

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judges on the reviewing panel is required. Thompkins, at paragraph four of the

syllabus.

{¶30} Both of the detectives were present when the CI was thoroughly

searched before and after she went to Moorer’s apartment, and they testified that

they followed the typical protocol. Because the CI was a female, the detective

used the back of his hand to pat her down, but he searched her thoroughly and

required that she turn all her pockets inside out. Detective Joseph testified that he

was confident that the CI did not have any cocaine on her prior to either of the two

operations, and she did not have the money that had been given to her afterwards.

(Tr. 176-177.) Detective Armstrong, who was also present when the CI was

searched, testified as follows:

Q. Detective Armstrong, are you confident in the searches that the Drug Task Force does, that in this case, the confidential informant had no cocaine prior to going to either of the operations?

A. Yes. I am confident of that.

(Tr. 266.) The Detective also explained that they do not send an officer to

personally go in with a CI because it would not be feasible and would basically

jeopardize the entire investigation. (Id.)

{¶31} Both Detectives testified that the CI went into Moorer’s apartment

with money and no cocaine, and returned shortly thereafter, with cocaine and no

money. The CI testified that she had phoned Moorer to arrange to purchase the

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drugs, that she went to his apartment, and that she bought the cocaine on two

occasions.

{¶32} We acknowledge the quality of the audio and video recordings from

inside the apartment during the transactions were not good. The CI apparently had

the recording equipment in her purse, and her movements and the angle of the

camera caused most of the video from inside the apartment to be jerky and to

consist of higher shots of the room and ceiling, and only briefly catching glimpses

of Moorer and the other occupants. However, given the nature of the transactions,

and the risks involved to the CI, it is understandable that it would have been

difficult to plan and control what was being filmed. The detective’s videos and

the CI’s videos definitely show her entering Moorer’s apartment. The CI’s videos

show Moorer in the apartment and show him close enough to her at times to have

enabled an exchange of the drugs for the money. The CI testified that is what

occurred.

{¶33} Two experienced law enforcement officers and the confidential

informant all presented strong and consistent testimony that would support the

jury’s findings that Moorer was guilty of trafficking in the drugs. And, their

testimony was further reinforced by the recordings of the drug transactions and by

a considerable amount of additional evidence.

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{¶34} Although Moorer’s friend testified that he did not see any exchanges

take place, that is not proof that they did not occur. McDonald testified that he

was watching TV when the CI came. Also, both of the visits/transactions were

quite brief, and it is understandable that Moorer might not have wanted to make it

blatantly obvious that he was selling drugs to the “visitor” in front of his young

son and McDonald. The jury might have also mistrusted McDonald’s motivations

and found the CI to be more believable. Although Moorer challenges the CI’s

credibility because she has had prior arrests and convictions, McDonald confirmed

that he also had a police record. McDonald could not answer the State’s questions

on cross-examination as to why this young woman would just come to the

apartment, stay for a very brief time, and then leave, without apparently any

reason or doing anything that would explain a logical purpose for the visits.

McDonald claimed he never asked Moorer about the unusual visits.

{¶35} After a review of the entire record, we find that the weight of the

evidence supported the jury’s verdict. We do not find that the jury lost its way or

that its verdict was a manifest miscarriage of justice. Accordingly, we overrule

Moorer’s second assignment of error.

{¶36} In addition to Moorer’s assignments of error, we sua sponte address

plain error in the trial court’s order of restitution to the METRICH Drug Task

Force. To have plain error under Crim.R. 52(B), there must be an error that is

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“obvious” and that affects “substantial rights.” State v. Barnes, 94 Ohio St.3d at

27 . Plain error is to be used “with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of justice.” Id.

{¶37} R.C. 2929.18 governs a trial court’s authority to order restitution. It

provides, in relevant part, as follows:

Financial sanctions may be imposed pursuant to this section, including, but not limited to, the following:

Restitution by the offender to the victim of the offender’s crime or any survivor of the victim, in an amount based on the victim’s economic loss. R.C. 2929.18(A)(1).

{¶38} In State v. Dietrich, 3d Dist. No. 1-10-76,

, we

addressed a similar factual scenario in which the trial court imposed restitution to

a drug task force after it had conducted a controlled drug purchase targeting the

defendant. There, we found that “a governmental entity advancing its own funds

to pursue a drug buy through an informant” is not a victim under R.C.

2929.18(A)(1). Id. at ¶ 31. Accordingly, we found plain error and vacated the

trial court’s restitution order.

{¶39} Here, the trial court ordered Moorer to “pay restitution in the amount

of $284.50 to the Seneca County Drug Task Force METRICH Enforcement Unit.”

(Apr. 30, 2012 J.E.) Under Dietrich, the trial court was not authorized to issue this

order since METRICH is not a victim under R.C. 2929.18(A)(1). As a result, it

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was plainly erroneous for the trial court to order restitution to benefit METRICH

and we consequently vacate the restitution award.

{¶40} Having found no error prejudicial to the Appellant herein in the

particulars assigned and argued in his first and second assignments of error, but

having found plain error in the trial court’s award of restitution to the METRICH

Drug Task Force, we affirm in part, and reverse in part, the judgment of the trial

court.

Judgment Affirmed in Part and Reversed in Part

ROGERS and SHAW, J.J., concur.

/jlr

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