[Cite as State v. Thompson,

.]

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

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 13-17-26

v.

JINETTA L. THOMPSON, OPINION

DEFENDANT-APPELLANT.

Appeal from Seneca County Common Pleas Court Trial Court No. 15-CR-0152

Judgment Affirmed

Date of Decision: February 20, 2018

APPEARANCES:

Jennifer L. Kahler for Appellant

Stephanie J. Kiser for Appellee Case No. 13-17-26

PRESTON, J.

{¶1} Defendant-appellant, Jinetta L. Thompson (“Thompson”), appeals the

August 18, 2017 judgment entry of sentence of the Seneca County Court of

Common Pleas. For the reasons that follow, we affirm.

{¶2} On August 19, 2015, the Seneca County Grand Jury indicted Thompson

on six counts, including: Count One of trafficking in cocaine in violation of R.C.

2925.03(A)(1), (C)(4)(b), a fourth-degree felony; Count Two of trafficking in

cocaine in violation of R.C. 2925.03(A)(1), (C)(4)(a), a fifth-degree felony; Count

Three of trafficking in cocaine in violation of R.C. 2925.03(A)(1), (C)(4)(a), a fifth-

degree felony; Count Four of trafficking in cocaine in violation of R.C.

2925.03(A)(2), (C)(4)(d), a second-degree felony; Count Five of possessing

criminal tools in violation of R.C. 2923.24(A), (C), a fifth-degree felony; and Count

Six of endangering children in violation of R.C. 2919.22(A), (E)(2)(a), a first-degree

misdemeanor. (Doc. No. 5). Counts One and Four of the indictment include a

specification alleging that Thompson committed the offenses in the presence of a

juvenile. (Id.). Counts One through Four of the indictment include a forfeiture

specification under R.C. 2981.02. (Id.). The forfeiture specification identifies

$1415.00, a surveillance-security system, a Samsung cellphone, a Kyocera

cellphone, and a Verizon cellphone as property “subject to forfeiture as proceeds

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derived from or instrumentalities used in the commission or facilitation of” the

offenses in Counts One through Four of the indictment. (Id.).

{¶3} The State filed a bill of particulars on September 3, 2015. (Doc. No. 9).

{¶4} On September 4, 2015, Thompson appeared for arraignment and

entered pleas of not guilty. (Doc. No. 11).

{¶5} On March 21, 2016, Thompson filed a motion for leave to file a motion

to suppress evidence. (Doc. No. 27). The State filed its response to Thompson’s

motion for leave to file a motion to suppress evidence on March 23, 2016. (Doc.

No. 28). The trial court granted Thompson’s motion for leave to file a motion to

suppress evidence on March 25, 2016. (Doc. No. 32).

{¶6} Thompson filed a motion to suppress evidence on April 6, 2016. (Doc.

No. 33). On July 18, 2016, the State filed a memorandum in opposition to

Thompson’s motion to suppress evidence. (Doc. No. 47). That same day, the State

filed a motion “to quash the subpoena [Thompson] issued to Gerald Heffelfinger”

(“Heffelfinger”), arguing that “Heffelfinger is not listed in State’s discovery as a

witness in this case, and the State properly certified the confidential informant’s

identity in discovery as non-disclosed informant,” which the trial court granted on

July 21, 2016. (Doc. Nos. 46, 49).

{¶7} On July 25, 2016, the trial court denied Thompson’s motion to suppress

evidence. (Doc. No. 51). Thompson filed a motion to reconsider her motion to

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suppress evidence on September 14, 2016, which the trial court denied that same

day. (Doc. Nos. 73, 76).

{¶8} The State filed a second bill of particulars on March 29, 2017. (Doc.

No. 107).

{¶9} On March 31, 2017, Thompson filed “Defense Notice of Witness and

Motion in Limine Re: Defense Witness Immunity.” (Doc. No. 108). Also that day,

Thompson filed a motion “to disaggregate Count IV of the Indictment.” (Doc. No.

109).

{¶10} On April 3, 2017, Thompson filed a second motion for leave to file a

delayed motion to suppress evidence. (Doc. No. 110).

{¶11} On May 9, 2017, the State filed its memoranda in opposition to

Thompson’s motion in limine and motion to disaggregate Count IV of the

indictment. (Doc. Nos. 114, 115).

{¶12} On June 1, 2017, the trial court granted Thompson’s motion for leave

to file a delayed motion to suppress evidence and motion in limine, and denied

Thompson’s motion to disaggregate Count IV of the indictment. (Doc. No. 117).

{¶13} On June 8, 2017, Thompson filed a motion to reconsider her motion

to disaggregate Count IV of the indictment, which the trial court denied on July 14,

2017. (Doc. Nos. 122, 141).

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{¶14} That same day, Thompson filed a delayed motion to suppress

evidence. (Doc. No. 121). On June 15, 2017, the State filed a memorandum in

opposition to Thompson’s delayed motion to suppress evidence. (Doc. No. 127).

That same day, Thompson filed her response to the State’s memorandum in

opposition to Thompson’s delayed motion to suppress evidence. (Doc. No. 126).

The trial court denied her delayed motion to suppress evidence on July 14, 2017.

(Doc. No. 141).

{¶15} On June 30, 2017, the trial court denied Thompson’s motion for

witness immunity. (Doc. No. 138).

{¶16} The case proceeded to jury trial on July 17-20, 2017. (Doc. No. 147).

On July 20, 2017, the jury found Thompson guilty of the counts of the indictment.

(Doc. Nos. 147, 148). The jury found Thompson guilty of the specifications in

Counts One and Four alleging that Thompson committed the offenses in the

presence of a juvenile. (Id.). The jury found that the surveillance-security system

is subject to forfeiture. (Id.). The trial court filed its judgment entry of conviction

on July 20, 2017. (Doc. No. 147).

{¶17} On August 18, 2017, the trial court sentenced Thompson to nine

months in prison on Count One, seven months in prison on Count Two, seven

months in prison on Count Three, five years in prison on Count Four, seven months

in prison on Count Five, and 90 days in jail on Count Six, and ordered that

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Thompson serve the terms concurrently for an aggregate sentence of five years in

prison. (Doc. No. 152).

{¶18} On September 13, 2017, Thompson filed her notice of appeal. (Doc.

No. 155). She raises four assignments of error for our review, which we address

together.

Assignment of Error No. I

The Trial Court Erred in Finding Appellant Guilty Trafficking [sic] in Cocaine with a Weight Exceeding 10 Grams When the Conviction Was Against the Manifest Weight of the Evidence.

Assignment of Error No. II

The Trial Court Erred in Finding Appellant Guilty of Child Endangering Where the State Failed to Introduce Sufficient Evidence to Support the Conviction.

Assignment of Error No. III

The Trial Court Erred in Finding Appellant Guilty of Possessing Criminal Tools When the Conviction Was Against the Manifest Weight of the Evidence.

Assignment of Error No. IV

The Trial Court Erred in Finding Appellant Guilty of Trafficking in Cocaine When the Conviction Was Against the Manifest Weight of the Evidence.

{¶19} In her second assignment of error, Thompson argues that her child-

endangering conviction is based on insufficient evidence. In her first and fourth

assignments of error, Thompson argues that her trafficking-in-cocaine convictions

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are against the manifest weight of the evidence. In her third assignment of error,

Thompson argues that her possessing-criminal-tools conviction is against the

manifest weight of the evidence.

{¶20} Manifest “weight of the evidence and sufficiency of the evidence are

clearly different legal concepts.” State v. Thompkins,

(1997). As such, we address each legal concept individually.

{¶21} “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.” State v. Jenks,

(1981), paragraph two of the syllabus, superseded by state constitutional

amendment on other grounds, State v. Smith,

(1997). Accordingly,

“[t]he 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.”

“In deciding if the

evidence was sufficient, we neither resolve evidentiary conflicts nor assess the

credibility of witnesses, as both are functions reserved for the trier of fact.” State v.

Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571,

,

citing State v. Williams,

,

(1st Dist.).

See also State v. Berry, 3d Dist. Defiance No. 4-12-03,

, ¶ 19

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(“Sufficiency of the evidence is a test of adequacy rather than credibility or weight

of the evidence.”), citing

.

{¶22} On the other hand, in determining whether a conviction is against the

manifest weight of the evidence, a reviewing court must examine 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.’”

,

quoting State v. Martin,

(1st Dist. 1983). A reviewing

court must, however, allow the trier of fact appropriate discretion on matters relating

to the weight of the evidence and the credibility of the witnesses. State v. DeHass,

(1967). When applying the manifest-weight standard,

“[o]nly in exceptional cases, where the evidence ‘weighs heavily against the

conviction,’ should an appellate court overturn the trial court’s judgment.” State v.

Haller, 3d Dist. Allen No. 1-11-34,

, quoting State v.

Hunter,

,

.

{¶23} At trial, the State offered the testimony of Officer Nate Elliott

(“Officer Elliott”) of the Fostoria Police Department, who testified that he was the

lead-case manager with the Seneca County Drug Task Force (“Task Force”) of the

controlled-narcotics operations on July 14 and 15, 2015 involving Thompson. (July

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17, 2017 Tr., Vol. I, at 166, 174, 189-190). Officer Elliott testified that confidential

informant (“CI”), Gerald Heffelfinger (“Heffelfinger”), purchased cocaine from

Thompson during the controlled-narcotics operations on July 14 and 15, 2015. (Id.

at 176, 192).

{¶24} On July 14, 2015, Heffelfinger purchased $60 worth of cocaine from

Thompson during the controlled-narcotics operation. (Id. at 174, 176, 177, 184).

As part of the operation, an audio and video-recording device was affixed to

Heffelfinger, Heffelfinger and Heffelfinger’s vehicle were searched for contraband,

and Heffelfinger was provided $60 “of covert funds.” (Id. at 176-178). Officer

Elliott testified that he “was present for the entire operation, pre- and post-

operation” and that Heffelfinger was “under surveillance during the entire

operation.” (Id. at 176, 178).

{¶25} Officer Elliott and Officer Gabriel Wedge (“Officer Wedge”) of the

Fostoria Police Department, who was a detective with the Task Force in July 2015,

surveilled the controlled-narcotics operation from a vehicle that was parked “to the

east of [Thompson’s residence].” (Id. 179-180, 239). Officer Elliott testified that

Heffelfinger travelled to Thompson’s residence without making any detours or

coming into contact with anyone else. (Id. at 177-178, 181). He testified that he

observed Heffelfinger “exit his vehicle” and walk “up to the porch” of Thompson’s

residence where Heffelfinger remained “for, approximately, three minutes, two to

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three minutes” before he returned to his vehicle. (Id. at 180). According to Officer

Elliott, at the completion of the “buy,” Heffelfinger left Thompson’s residence by

driving west at which time Detective Charles W. Boyer (“Detective Boyer”), the

unit commander of the Task Force, “followed him back to the predetermined

location.” (Id.). “Once we arrived at the predetermined location, we removed the

audio and visual surveillance [and Heffelfinger] handed [Officer Elliott] a * * * bag

with a white rock like substance.” (Id. at 182). Law enforcement again searched

Heffelfinger and Heffelfinger’s vehicle but “found no additional contraband.” (Id.).

{¶26} Officer Elliott testified that law enforcement interviewed Heffelfinger

about the controlled-narcotics operation:

He had stated that once he arrived at [Thompson’s residence], he went

up to the front porch, made contact with her. Stated that she was

talking on her cell phone. Stated that she had took the crack, put it on

a window sill that * * * is to the left side. * * * And then he had issued

her the covert funds. After that he stated that he walked back down

towards his car and met us back at the predetermined location.

(Id.). Officer Elliott identified State’s Exhibit 3 as the video recording of the July

14, 2015 controlled-narcotics operation. (Id. at 186). He testified that the video

recording substantiates Heffelfinger’s version of events. (Id. at 187). Further,

Officer Elliott testified that “watching the video you could hear multiple children

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present in the background that appeared to be in the same room as Ms. Thompson.”

(Id. at 187).

{¶27} Officer Elliott identified State’s Exhibits 4 and 5 as photographs taken

from the video recording of the July 14, 2015 controlled-narcotics operation. (Id.

at 188). State’s Exhibit 4 depicts Thompson holding the covert funds that

Heffelfinger provided to her. (Id.). State’s Exhibit 5 depicts “the white, rock like

substance” on the window sill. (Id.). Officer Elliott identified State’s Exhibit 1 as

the cocaine that Heffelfinger purchased from Thompson during the controlled-

narcotics operation on July 14, 2015. (Id. at 183-184).

{¶28} On July 15, 2015, Heffelfinger purchased $100 worth of cocaine from

Thompson during the controlled-narcotics operation. (Id. at 192). Prior to the

operation, law enforcement searched Heffelfinger and Heffelfinger’s vehicle, and

outfitted Heffelfinger with an audio-and-video-recording device. (Id. at 190-192).

After Officer Elliott observed Thompson at her residence on July 15, 2015,

Heffelfinger went to Thompson’s residence to purchase cocaine in a manner similar

to the July 14, 2015 controlled-narcotics operation. (Id. at 191-192). Officer Elliott

described:

[Heffelfinger] parked in front of [Thompson’s] residence. Went up.

Once he got to a certain point, I couldn’t see him any longer. Got

back in his vehicle after a couple minutes. And then he left that

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location. We followed him back. Once we arrived back at the

predetermined location, he turned over a bag of white rock like

substance. He was searched again. The vehicle was searched. No

contraband was found on either, and then we conducted the post-

operational protocol.

(Id. at 192). (See also

). However, Officer Elliott testified that the

audio and visual equipment affixed to Heffelfinger did not operate properly and

failed to capture the controlled-narcotics operation. (Id. at 198-199). Officer Elliott

identified State’s Exhibit 6 as the cocaine that Heffelfinger purchased from

Thompson on July 15, 2015. (Id. at 195).

{¶29} Officer Elliott participated in the execution of a search warrant at

Thompson’s residence on July 20, 2015. (Id. at 199). As part of his search of

Thompson’s residence, Officer Elliott discovered “surveillance cameras that were

positioned outside of the residence as well as a recording device inside the

residence.” (Id. at 200). (See also State’s Exs. 9, 10, 11). According to Officer

Elliott, surveillance systems are commonly found in homes of narcotics traffickers

“to monitor their residence against theft” and “police.” (July 17, 2017 Tr., Vol. I,

at 201). Officer Elliott also testified that he “was present in the kitchen when a large

amount of what appeared to be cocaine was located” in an amount “more than what

[he] typically would say is personal use cocaine.” (Id. at 202).

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{¶30} On cross-examination, Officer Elliott testified that Heffelfinger

became a CI because “he was caught with drugs in his car.” (Id. at 203). He testified

that Heffelfinger entered an agreement with the Fostoria Police Department, the

Task Force, and the Seneca County Prosecutor’s Office “to provide some controlled

buys” in exchange for “some favor with respect to the disposition of [his] own case.”

(Id. at 205-206).

{¶31} According to Officer Elliott, because CIs “probably [] have a problem

with cocaine or other substances,” they are, “[t]o a certain extent” “not entirely

trustworthy.” (Id. at 206). Because they are not entirely trustworthy, law

enforcement conducts “pre-controlled buy and post-controlled buy protocol” by

searching the CI and his or her vehicle. (Id. at 207). Officer Elliott described the

search protocol. (See

). (See also

).

{¶32} Officer Elliott testified that Heffelfinger purchased a “very thin,

small” package of cocaine from Thompson on July 14, 2015. (Id. at 209). As such,

Officer Elliott conceded that law enforcement could have missed the package of

cocaine during their search of Heffelfinger and Heffelfinger’s vehicle, and

Heffelfinger could have taken the drugs to Thompson’s residence. (Id. at 212).

{¶33} Officer Elliott testified that he did not search Heffelfinger’s phone to

corroborate Heffelfinger’s assertion that he contacted Thompson about purchasing

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narcotics after Heffelfinger asserted to Officer Elliott that he could purchase

narcotics from Thompson. (Id. at 223).

{¶34} Officer Elliott testified that the cocaine discovered during the search

of Thompson’s residence was discovered in kitchen cabinets that are “seven - - eight

feet to the top.” (Id. at 227-228).

{¶35} On re-direct examination, Officer Elliott testified that law enforcement

corroborate CI statements by “tak[ing] the totality of everything, [law

enforcement’s] visual surveillance, and the protocols that are put in place to ensure

the integrity of the entire case.” (Id. at 229). Indeed, he testified that CIs are “not

very credible at times, and they often lie. So we put procedures in place to ensure

* * * the integrity of the case.” (Id. at 230).

{¶36} Officer Elliott confirmed that there was not “any evidence that the

drugs were hidden on [Heffelfinger].” (Id.). He testified that the evidence that the

cocaine was on Thompson’s windowsill contradicts that Heffelfinger was hiding the

cocaine on his body or in his vehicle. (Id.).

{¶37} Officer Elliott testified that Thompson could “possibly” reach the top

of the cabinet in which the cocaine was discovered at her residence. (Id. at 232).

{¶38} On re-cross examination, Officer Elliott clarified that Thompson

would have to “[g]et up on the counter, use a step stool” to be able to access the

cocaine that was discovered in the kitchen. (Id. at 232-233).

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{¶39} Next, Officer Wedge testified that he assisted with the July 14 and 15,

2015 controlled-narcotics operations by surveilling Heffelfinger. (July 18, 2017,

Vol. II, at 239, 240-242, 244-245). Officer Wedge further testified that he was the

lead-case manager of a controlled-narcotics operation on July 16, 2015 involving

Thompson. (Id. at 245-246). During that controlled-narcotics operation,

Heffelfinger purchased $60 worth of cocaine from Thompson. (Id. at 247). The

July 16, 2015 controlled-narcotics operation followed the same protocol that was

utlized for the previous operations. (Id. at 246-248). Officer Wedge described:

[W]e left the predetermined location, followed [Heffelfinger] to

[Thompson’s] residence on Bannister Street. [He and Detective

Donald Joseph (“Detective Joseph”) of the Seneca County Sheriff’s

Office were] east of the location. Watched [Heffelfinger] pull up in

front of the residence, go up to the residence. And once he left, we

then picked him up again and followed him back to the predetermined

location.

(Id. at 248-249). Officer Wedge testified that he observed Heffelfinger the entire

time Heffelfinger was travelling to and from Thompson’s residence and did not see

him make any stops or come into contact with anyone. (Id. at 249).

{¶40} Officer Wedge identified State’s Exhibit 28 as the cocaine that

Heffelfinger purchased from Thompson on July 16, 2015. (Id. at 250-251). He

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identified State’s Exhibit 30 as the video recording of the July 16, 2015 controlled-

narcotics operation. (Id. at 253).

{¶41} Officer Wedge testified that he participated in the execution of the July

20, 2015 search warrant at Thompson’s residence. (Id. at 254). Officer Wedge

testified that he discovered “what looked like crumbs or flakes of what appeared to

be crack cocaine” on a dresser in the bedroom, “a digital scale in the drawer in the

kitchen,” and “what appeared to be crack cocaine in a plastic bag” “up above one of

the cabinets in the kitchen.” (Id. at 255). He identified State’s Exhibits 23, 24, 25,

26, and 27 as photographs documenting the items he discovered during the search.

(Id.). He identified State’s Exhibit 31 as two pieces of evidence—the “flakes of

[the] white powder substance” that he observed in the bedroom and “four baggies

of rock-like substance” discovered in the kitchen. (Id. at 257).

{¶42} On cross-examination, Officer Wedge testified that he did not confirm

that there were any conversations between Heffelfinger and Thompson regarding

the sale of cocaine. (Id. at 261-262). However, Officer Wedge testified that law

enforcement utilizes specific protocols to ensure the integrity of controlled-

narcotics operations because CIs are not always trustworthy. (Id. at 266-268). He

testified that law enforcement follow those protocols to ensure that a CI “doesn’t try

to set someone else up.” (Id. at 268).

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{¶43} Officer Wedge described how cocaine is packaged for sale and how

cocaine is turned into crack cocaine. (See id. at 277-285). According to Officer

Wedge, the cocaine that he discovered during the execution of the search warrant is

not the same weight as the “packaged” cocaine that Heffelfinger purchased from

Thompson. (Id. at 285-286). He described each of the four bags discovered in the

kitchen. (See id. at 290-295). He testified that three of the four bags are bigger than

the packages purchased by Heffelfinger; that two of the bags are “more of a powder

base than it is a rock-like substance”; that the third bag “is more consistent with the

crack cocaine”; and the fourth bag contains “a trace” or “residue” of cocaine. (Id.).

He testified that the cocaine purchased by Heffelfinger “are all rock form.” (Id. at

293).

{¶44} On re-direct examination, Officer Wedge described the cocaine

purchased by Heffelfinger. (Id. at 299-301). Each of Heffelfinger’s cocaine

purchases are wrapped individually and the July 14 and 16, 2015 purchases are

approximately the same amount of cocaine—$60 worth—and the July 15, 2015

purchase is approximately double the amount of the July 14 and 16 purchases—

$100 worth. (Id. at 300-301).

{¶45} On re-cross examination, Officer Wedge testified that the weight of

the cocaine purchased by Heffelfinger on July 14, 2015 was .35 grams—“[p]lus or

minus .04—and the weight of the cocaine purchased by Heffelfinger on July 16,

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2015 was .44 grams. (Id. at 305). (See also State’s Exs. 2, 28). Officer Wedge

testified that the difference in weight indicates that either a scale was not used or, if

a scale was used, it was unreliable. (July 18, 2017 Tr., Vol. II, at 306). Officer

Wedge testified that Thompson did not go back inside her residence before selling

the cocaine to Heffelfinger; rather, “there was a brief meeting at the front porch.”

(Id. at 306-307). He testified that individually packaged cocaine approximating .3

to .7 grams was not discovered during the search of Thompson’s residence. (Id. at

309).

{¶46} As its next witness, Heffelfinger testified on behalf of the State that he

worked for the Task Force as a CI in July 2015. (Id. at 312-313). In exchange for

working for the Task Force, Heffelfinger was not charged with any crime after law

enforcement “caught [him] with a little bit of cocaine.” (Id. at 313). He testified

that he was convicted of felony offenses—possession of cocaine and breaking and

entering—in 2007 and 2013, respectively. (Id. at 313-314). (See also id. at 331-

333). Heffelfinger testified that he knows Thompson “[t]hrough drugs.” (Id. at

314).

{¶47} Heffelfinger testified that he participated in a controlled-narcotics

operation on July 14, 2015. (Id. at 314-315). As part of the operation, Heffelfinger

“met [law enforcement] at a predetermined location, and they searched [him],

searched [his] car, gave [him] some drug money and wired [him] up and [he] went

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and made the buy.” (Id. at 315). He testified that law enforcement did not find any

contraband after searching Heffelfinger and Heffelfinger’s vehicle. (Id.).

Heffelfinger identified State’s Exhibit 3 as the video recording of the July 14, 2015

controlled-narcotics operation, which was subsequently played for the jury. (Id. at

316-317). Heffelfinger testified that, during the transaction, Thompson “put the

drugs down on the window sill [and he] laid the money down, picked [the drugs]

up, and left.” (Id. at 318). He identified State’s Exhibit 5 as a photograph—

Thompson’s window sill with the cocaine on it—depicting the sale as he described

it. (Id.). He testified that he did not “stop and meet with anyone on [his] way to

[Thompson’s] house” and “got in [his] car and drove back to the predetermined

location” after purchasing the cocaine from Thompson. (Id. at 317-319).

Heffelfinger identified State’s Exhibit 1 as the cocaine that he purchased from

Thompson on July 14, 2015. (Id. at 319).

{¶48} Heffelfinger described the July 15, 2015 controlled-narcotics

operation in which he participated. (Id. at 319-320). He testified that law

enforcement utilized the same protocol as the July 14, 2015 controlled-narcotics

operation. (Id. at 320). He testified that he initially had trouble contacting

Thompson. (Id. at 320-321). Even though Thompson did not respond to

Heffelfinger’s phone calls, Heffelfinger went to Thompson’s house and she

answered the door. (Id. at 320-322). He testified that the transaction again occurred

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on the front porch—Heffelfinger “put up how much [cocaine he] wanted,

[Thompson] left for a couple minutes and brought [the cocaine] back,” and

Heffelfinger gave Thompson the money. (Id. at 322). According to Heffelfinger,

Thompson handed him the cocaine. (Id.). After the transaction, Heffelfinger

returned to the predetermined location. (Id. at 322). He testified that he did not

have contact with anyone else between the time Thompson handed him the drugs

and the time he reunited with Officer Elliott. (Id. at 322-323). Heffelfinger

identified State’s Exhibit 6 as the cocaine that he purchased from Thompson on July

15, 2015. (Id. at 323).

{¶49} Heffelfinger also testified that he was part of the controlled-narcotics

operation on July 16, 2015. (Id. at 323). Heffelfinger testified that law enforcement

utilized the same preoperational protocol as the previous operations. (Id. at 324).

Heffelfinger identified State’s Exhibit 30 as a video recording of the July 16, 2015

controlled-narcotics operation, which was subsequently played for the jury. (Id. at

325-326). After meeting with law enforcement at the predetermined location,

Heffelfinger travelled directly to Thompson’s residence without coming into

contact with anyone else. (Id. at 326). Once he arrived at Thompson’s residence,

he “walked up,” “[s]he laid the drugs down,” and Heffelfinger “put the money down

and grabbed [the drugs] and walked away.” (Id.). After the transaction was

complete, Heffelfinger returned to the predetermined location without coming into

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contact with anyone else. (Id. at 327). He identified State’s Exhibit 28 as the

cocaine that he purchased from Thompson on July 16, 2015. (Id.).

{¶50} On cross-examination, Heffelfinger testified that he agreed to work for

law enforcement as a CI after law enforcement discovered “a little bit of crack

cocaine in [his] car.” (Id. at 334). After being caught with the crack cocaine,

Heffelfinger informed law enforcement that he purchased the cocaine from

Thompson. (Id. at 336). According to Heffelfinger, as part of his duties as a CI, he

was to purchase drugs from three people, including Thompson. (Id. at 336-337).

Heffelfinger was unable to purchase drugs from one of those three people—

Torrance Thompson (“Torrance”), Thompson’s husband,—“because he had

recently gone to prison.” (Id. at 337). Heffelfinger testified that Thompson shared

the residence with Torrance and Torrance went to prison “because he would go to

the bedroom, get the drugs, bring [them] out front, sell [the drugs] off the front” and

“that’s why he caught the case instead of [Thompson].” (Id. at 338). Heffelfinger

testified that he bought narcotics from Torrance and Thompson. (Id.).

{¶51} Heffelfinger testified that law enforcement did not substantiate any of

the calls he exchanged with Thompson setting up the controlled-narcotics

operations. (Id. at 339-340). Heffelfinger described law enforcement’s pre-and-

post-operation-protocol searches of his person and his vehicle. (Id. at 342-352).

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{¶52} Next, Larry A. Rentz (“Rentz”) of the Ohio Bureau of Criminal

Investigation (“BCI”) testified that he analyzed the “cocaine as to identity and

weight for this case.” (Id. at 363). Rentz identified State’s Exhibit 2 as a copy of

his report regarding his analysis of State’s Exhibit 1—the cocaine purchased by

Heffelfinger from Thompson on July 14, 2015. (Id. at 367). According to Rentz,

the “white material weighed 0.35 grams and was found to contain cocaine.” (Id. at

367-368). He identified State’s Exhibit 7 as his report regarding his analysis of

State’s Exhibit 6—the cocaine purchased by Heffelfinger from Thompson on July

15, 2015. (Id. at 368-369). He testified that “the white material that’s herein

contained weighed 0.7 grams and is found to contain cocaine.” (Id. at 370). Lastly,

Rentz identified State’s Exhibit 29 as his report regarding his analysis of State’s

Exhibit 28—the cocaine purchased by Heffelfinger from Thompson on July 16,

2015. (Id. at 370-371). He testified that “the white material contained herein is 0.44

grams and it’s found to contain cocaine.” (Id. at 372).

{¶53} On cross-examination, Rentz testified that BCI tests drugs for weight

first because a portion of the substance may be used for other testing resulting in a

reduced weight of the substance. (Id. at 382).

{¶54} As its next witness, the State offered the testimony of Sara Tipton

(“Tipton”) of BCI. (Id. at 400). Tipton identified State’s Exhibit 34 as her report

prepared on July 30, 2015 regarding her analysis of State’s Exhibit 31—the bags of

-22- Case No. 13-17-26

cocaine seized as part of the search of Thompson’s residence. (Id. at 403-405). She

testified, “For Item 1 less than 0.10 gram [sic]; Item 2.1 was 5.81 plus or minus .04

grams; Item 2.2 was 5.33 grams plus or minus .04 grams” and that “[a]ll three of

them were found to contain cocaine.” (Id. at 405). She testified that the total weight

of Items 2.1 and 2.2 is 11.06 grams of cocaine. (Id. at 405-406). She testified that

Item “2.1 appeared to be a powder and 2.2 was a solid chunk.” (Id. at 407).

{¶55} Tipton identified State’s Exhibit 36 as a lab report prepared on January

26, 2017 by an expert hired by Thompson. (Id. at 406, 408). She testified that

State’s Exhibit 36 reflects different weights for Items 2.1 and 2.2—that is, State’s

Exhibit 36 reflects a weight of 5.70 grams plus or minus .02 grams for Item 2.1 and

3.84 grams plus or minus .01 grams for Item 2.2. (Id. at 406-407). Regarding the

weight discrepancy, Tipton testified that she could not “speak as to how they

checked the calibration on their balances”; that the substances that “appear[ed] to

be crack cocaine, which is made with a wet process,” “would evaporate the moisture

over time”; “[a]nd they would have tested it after [she] tested it, so the amounts

would have been after [she] had sampled and tested.” (Id. at 408).

{¶56} On cross-examination, Tipton testified that the weight of Item 2.1

reflected in State’s Exhibit 36 is within the margin of error. (Id. at 41). She testified

that it is possible that Item 2.2 could have weighed 3.84 grams—as reflected by

State’s Exhibit 36—if all moisture was removed from the crack cocaine. (Id. at

-23- Case No. 13-17-26

412). Tipton testified that BCI protocol is that if a substance appears to have

excessive moisture, “such as wet spots on the weight paper or actual water in the

bag,” the substance is dried; however, in this case Tipton did not see indicators of

excessive moisture. (Id. at 412-413, 415).

{¶57} Tipton testified that Item 1 was a large chunk of crack cocaine with

“no baggy,” which weighed less than 0.1 grams. (Id. at 419-420).

{¶58} On re-direct examination, Tipton testified that in cases where she has

observed excessive moisture, she weighs the substance before and after allowing it

to dry. (Id. at 430). She testified that, simply because there was no excessive

moisture visible with Item 2.2, it is not indicative that there was not moisture in it

when she weighed it. (Id. at 431).

{¶59} On re-cross examination, Tipton testified that the BCI instruments do

not detect the water contained in a substance. (Id. at 435).

{¶60} As its next witness, the State offered the testimony of Detective Joseph

who testified that he participated in the July 15, 2015 controlled-narcotics operation

by providing visual surveillance and by searching Heffelfinger’s vehicle before and

after he met with Thompson. (Id. at 446-447, 449-450). His search did not produce

any contraband. (Id. at 449-450). Detective Joseph testified that he watched

Heffelfinger arrive at Thompson’s residence on July 15, get out of his vehicle, and

approach the front of Thompson’s residence. (Id. at 450). However, he lost his

-24- Case No. 13-17-26

view of Heffelfinger once Heffelfinger entered the front porch. (Id.). As part of the

post-operational protocol, Detective Joseph again searched Heffelfinger’s vehicle

and did not find any contraband. (Id.).

{¶61} On July 16, 2015, in addition to providing visual surveillance,

Detective Joseph searched Heffelfinger’s vehicle prior to and after the operation.

(Id. at 450-452). Detective Joseph testified that he “was able to observe

[Heffelfinger] arrive, get out of the vehicle and walk up to the front of the

residence,” and make contact with Thompson. (Id. at 451).

{¶62} Detective Joseph also testified that he participated in the execution of

the July 20, 2015 search warrant at Thompson’s residence. (Id. at 452). He

identified State’s Exhibits 8 through 27 as photographs that he took depicting the

residence as it appeared on July 20. (Id. at 453). In particular, he testified that

State’s Exhibits 9 and 10 reflect “the surveillance camera in the corner of the

residence”; State’s Exhibit 11 “is a picture of the monitor for the surveillance

system”; “State’s Exhibit 13 is a photograph of a cell phone next to the sofa”; State’s

Exhibit 14 is a photograph depicting an appliance in the residence with “baby

diapers on the appliance showing that there’s children in the home”; “State’s Exhibit

18 is a weight that [was] found in the kitchen cupboard”; “State’s Exhibit 19 is a

digital scale”; State’s Exhibits 24 through 27 are photographs of the cocaine “that

-25- Case No. 13-17-26

was found on top of the kitchen cupboard.” (Id. at 453-455). According to

Detective Joseph, during the execution of the search warrant, he observed:

Throughout the residence I noticed that the furnishings in the

residence were modern and nice, newer furniture, newer appliances.

There was some remodeling going on in the home, in addition to the

items that would be indicative of children living in the home, and also

[a] large amount of US currency * * *; items indicative of drug

trafficking, such as the digital scales, the weight for the scale.

(Id. at 456). Regarding the US currency, he noted that “[t]he bills were lower

[denominational] bills,” which is “an indicator for drug trafficking.” (Id.).

{¶63} Detective Joseph testified that he learned that Thompson did not file a

tax return from 2014 through 2016 and that she filed an affidavit of indigency in

this case. (Id. at 457). (See also State’s Exhibit 32). Detective Joseph identified

State’s Exhibit 33 as Thompson’s affidavit of indigency, which reflects that she

receives $500 monthly in income, has zero liquid assets, and has monthly expenses

of $385. (July 18, 2017 Tr., Vol. II, at 457-458). (See State’s Ex. 33). Detective

Joseph testified that State’s Exhibits 32 and 33 are not “consistent with finding Ms.

Thompson in possession of over $1,400 in cash, expensive furnishings and

remodeling her home.” (July 18, 2017 Tr., Vol. II, at 458).

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{¶64} According to Detective Joseph, Thompson’s husband, Torrance, had

been incarcerated “over three months” at the time that the search warrant was

executed. (Id. at 458-459).

{¶65} On cross-examination, Detective Joseph testified that the complaint

asserted that the cocaine seized from Thompson’s residence weighed between five

and ten grams. (Id. at 465-466). According to Detective Joseph, that weight

includes the weight of the packaging. (Id. at 466).

{¶66} Detective Joseph testified that he was part of the investigation that

resulted in Torrance going to prison for trafficking in cocaine. (Id. at 467-469). As

part of the investigation involving Torrance, law enforcement did not search the

Thompsons’ residence. (Id. at 469). Detective Joseph agreed that, if Torrance was

trafficking cocaine, the residence he shared with Thompson would contain

contraband related to drug trafficking. (Id. at 470).

{¶67} Next, the State called Detective Brandon Bell (“Detective Bell”) of the

Fostoria Police Department who testified that he participated in the execution of the

July 20, 2015 search warrant at Thompson’s residence. (July 19, 2017 Tr., Vol. III,

at 491-492, 494). Detective Bell testified that he “stood outside with the children”

that were at the residence during the search-warrant execution. (Id. at 494).

{¶68} As its next witness, the State called Detective Boyer who testified that

he participated in the controlled-narcotics operation involving Thompson on July

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14, 2015. (Id. at 511-512). During the controlled-narcotics operation on July 14,

2015, Detective Boyer provided visual surveillance in which he watched

Heffelfinger arrive at Thompson’s residence and walk toward her front porch. (Id.

at 516-517). However, Detective Boyer lost sight of Heffelfinger after he entered

Thompson’s front porch. (Id.).

{¶69} Detective Boyer also testified that he participated in the July 20, 2015

search-warrant execution at Thompson’s residence. (Id. at 518). To execute the

search warrant, law enforcement waited for Thompson to leave the residence

because law enforcement knew that three children—ages three, five, and six—and

an aggressive dog resided at the residence. (Id. at 519, 521). Once Thompson left

the residence with her three children, law enforcement conducted a traffic stop of

the vehicle that Thompson was operating and requested Thompson to return to the

residence and secure the dog. (Id. at 519). He testified that the children “were upset

when [law enforcement] first stopped Thompson.” (Id. at 521).

{¶70} He testified that he conducted the inventory of the search-warrant

execution. (Id. at 518). Detective Boyer identified State’s Exhibit 35 as “the search

warrant, inventory and property receipt” that he prepared on July 20, 2015. (Id. at

527). He testified that law enforcement seized

the weight that [was] discovered in the kitchen, US currency, a

prescription bottle containing numerous pills, the flakes of white

-28- Case No. 13-17-26

powder [found in a bedroom], some roaches of suspected marijuana,

directional card of a guy by the name of Donald Barry, the [three]

baggies of * * * the crack cocaine that was [sic] found in the kitchen,

pinch baggies in the trash, digital scales found in the kitchen[,] three

cell phones, more US currency, and then another pinch baggy found

in the cushion of the living room [couch], and then four surveillance

cameras.

(Id. at 527-528). (See State’s Ex. 35). According to Detective Boyer, based on his

training and experience, Thompson was preparing the cocaine for distribution

because “the US currency was in small denominations. You have the scales. You

have the * * * weight to check the scales to make sure of accuracy. You have the

pinch baggies. You have the extra surveillance.” (July 19, 2017 Tr., Vol. III, at

530). Indeed, he testified that, based on his training and experience, the evidence

seized is indicative of trafficking as opposed to personal use because law

enforcement “did not find any crack pipes, any choreboy [sic] or anything else they

use for instruments to abuse for crack cocaine.” (Id. at 532). Likewise, law

enforcement did not “locate any drug abuse instruments on [Thompson’s] person,”

in her vehicle, or any evidence of crack-crack cocaine abuse in her residence. (Id.

at 532-533). Rather, law enforcement discovered evidence of personal marijuana

use in the residence. (Id. at 533).

-29- Case No. 13-17-26

{¶71} Detective Boyer further testified that it was apparent that the three

children were residing at Thompson’s residence because Thompson admitted that

they resided there and because “there was kids’ stuff in there.” (Id. at 522).

Regarding the hazards to children residing in a residence in which narcotics

trafficking occurs, Detective Boyer testified that children are at risk for ingesting

the narcotics and are “being introduced to the criminal element, because they’re

having people * * * who are addicted to drugs show up at the residence to purchase”

narcotics. (Id. at 533).

{¶72} Detective Boyer identified State’s Exhibit 31 as a copy of BCI’s report

regarding the cocaine discovered in the kitchen, which indicates that the total weight

of the cocaine is greater than ten grams. (Id. at 534-535). (See State’s Ex. 31). He

testified that, over time, crack cocaine “dries out” which decreases the weight of the

substance. (July 19, 2017 Tr., Vol. III, at 535-536). According to Detective Boyer,

narcotics traffickers do not dry crack cocaine prior to sale because “they want to get

the most weight out of it to get the most money.” (Id. at 536).

{¶73} On cross-examination, Detective Boyer identified Defendant’s

Exhibit A as a copy of the complaint he prepared regarding Thompson indicating

that the weight of the cocaine seized was between five and ten grams. (Id. at 537-

538). He testified that the cocaine was originally weighed in the bags in which it

was contained. (Id. at 539). Discussing the discrepancy from the BCI report

-30- Case No. 13-17-26

indicating that the cocaine weighed over ten grams, Detective Boyer testified that

law enforcement’s weight estimate indicating that the cocaine weighed between five

and ten grams “must have [been] a mistake.” (Id. at 539).

{¶74} Detective Boyer testified that he was involved in the investigation of

Torrance that resulted in Torrance being sentenced to prison for trafficking in

cocaine. (Id. at 542). He testified that Torrance resides in the residence with

Thompson “when he’s not in prison.” (Id.). According to Detective Boyer, the

pinch bag discovered in the couch during the search-warrant execution is evidence

of personal-drug use, presumably from Torrance’s personal use. (Id. at 543-544).

Detective Boyer testified that law enforcement did not contemporaneously search

the residence when Torrance was arrested for trafficking in cocaine. (Id. at 544).

Detective Boyer admitted that the surveillance system discovered at the residence

could have been associated with Torrance’s trafficking crime. (Id.). He could not

remember whether there was any drug residue on the scale found during the search-

warrant execution. (Id. at 547). He agreed that it was possible that if a person was

operating a business out of their home, they would have “fives, tens and twenties”

in US currency from customers. (Id. at 548).

{¶75} On re-direct examination, Detective Boyer testified that the digital

scale he uses to calculate the presumptive weight of seized narcotics is not calibrated

and that he is not an expert in weighing controlled substances. (Id. at 568). He

-31- Case No. 13-17-26

testified that “normal” people do not “have numerous cell phones along with digital

scales, weights, large amounts of cash when they’re unemployed or not filing taxes,

and large amounts of controlled substances.” (Id. at 569-570). He also testified that

narcotics traffickers do not sell narcotics in the same amounts “especially with crack

cocaine [because] there’s no uniform size.” (Id. at 570).

{¶76} On re-cross examination, Detective Boyer testified that the “official”

weight of drugs from BCI is usually lower than the presumptive weight that he

records because the presumptive weight is the gross weight, which includes the

packaging. (Id. at 572).

{¶77} Thereafter, the State moved to admit Exhibits 1-35 and rested. (Id. at

572-575, 582-583). The State’s exhibits were admitted without objection. (Id. at

574). Next, Thompson made a Crim.R. 29(A) motion, which the trial court denied.

(Id. at 575-582).

{¶78} Thompson presented the testimony of Torrance who testified that

Thompson is his wife and that they reside at the same residence with their three

children. (Id. at 584-585). Torrance testified that he has a criminal record and that

he “sold drugs” and “used drugs.” (Id. at 585-586). In particular, he testified that

he used the powder form of cocaine and sold crack cocaine. (Id. at 589). He testified

that he purchased the powder cocaine in “bulk.” (Id. at 591).

-32- Case No. 13-17-26

{¶79} Because he was selling drugs, Torrance was convicted of trafficking

in cocaine and sentenced to prison in 2015. (Id. at 587). According to Torrance,

the transactions which led to his trafficking-in-cocaine conviction did not occur at

the residence he shared with Thompson. (Id.). Rather, the transactions occurred in

an apartment located above the beauty-supply business that Thompson was

“running * * * with her mother.” (Id. at 587-589).

{¶80} He testified that Thompson’s mother owned the residence that

Torrance and Thompson shared and that Thompson’s mother decided to renovate

the house by adding an additional bedroom. (Id. at 593-594). Regarding the

“newer” furnishings, Torrance testified that they purchased the furnishings from

“Aaron’s,” “[a] rent-a-center place.” (Id. at 594). According to Torrance,

Thompson received income from “running the family [beauty-supply] business.”

(Id.).

{¶81} Torrance testified that he knows Heffelfinger because he “sold him

drugs several times.” (Id. at 596-597). According to Torrance, Heffelfinger “owe[d

him] money from several incidents,” which is why Heffelfinger was “taking money

to [Thompson] while [Torrance was] in prison.” (Id. at 597).

{¶82} Regarding the cocaine found in the kitchen, Torrance invoked his right

against self-incrimination under the Fifth Amendment when asked about that

cocaine. (Id. at 598).

-33- Case No. 13-17-26

{¶83} On cross-examination, Torrance testified that he went to prison for

trafficking in cocaine on March 9, 2015 and was released in September 2016. (Id.

at 599). Regarding his drug use, he testified that he used “[a] half gram or

something” “[f]our or five times a day.” (Id. at 600). Regarding the US currency

discovered in the residence, Torrance testified that he “left her some money” and

that she received income from the family business. (Id. at 600-601). However, he

testified that the family business was closed from November 2014 through May

2015. (Id. at 601). He testified that he “sold drugs to support [his] addiction,” but

“fronted” Heffelfinger drugs or money. (Id. at 601-602).

{¶84} As its final witness, the defense called Nicole Lattanzio (“Lattanzio”)

of NMS Labs who testified that she analyzed the cocaine on behalf of Thompson.

(July 20, 2017 Tr., Vol. IV, at 621,626-627, 631). Lattanzio identified Defendant’s

Exhibit B as a copy of her “Drug Chemistry Final Report.” (Id. at 634). She testified

that she analyzed two bags and concluded that the substances in those bags

contained cocaine. (Id. at 635). She testified that one of the bags of cocaine

weighed 5.70 grams plus or minus 0.02 grams. (Id. at 363). She explained that the

difference from the weight reported by BCI of 5.81 grams “seems like a negligible

amount of material that you would assume that would be consumed in testing.”

(Id.). She testified that the second bag of cocaine weighed 3.84 grams plus or minus

0.01 grams. (Id. at 638). She testified that NMS Labs’ “balances are calibrated by

-34- Case No. 13-17-26

an external source once every six months, but their performance is verified daily

anytime they’re used for case work.” (Id. at 637).

{¶85} On cross-examination, Lattanzio testified that her report is dated

January 26, 2017. (Id. at 640). According to Lattanzio, there are two explanations

for the differing cocaine weights: “either someone’s scales are wrong or the weight

changed.” (Id. at 641). She stated that it is “a safe assumption” that the discrepancy

in weight of the “crack cocaine” is that the substance lost weight over time as

opposed to an incorrect scale. (Id. at 641-642).

{¶86} On re-direct examination, Lattanzio testified that she is unable to tell

“how or when the water got into the substance” if she is testing a controlled

substance that contains moisture. (Id. at 644). She agreed that it is “a possible

assumption” that “the addition of water either by accident or by humidity [is] a

possible explanation for a substance’s weight going from low to higher to lower.”

(Id. at 645). She testified that substances packaged in “plastic would contribute to

a higher humidity level.” (Id.).

{¶87} Thereafter, the defense moved to admit Defendant’s Exhibits B and C,

which were admitted without objection, and rested. (Id. at 646-647).1 The defense

previously moved to admit Defendant’s Exhibit A, which was admitted without

objection. (July 19, 2017 Tr., Vol. III, at 574). The State did not present any

1 Defendant’s Exhibit C is Lattanzio’s curriculum vitae. (July 17, 2017 Tr., Vol. 1 at 7).

-35- Case No. 13-17-26

witnesses on rebuttal, and Thompson renewed her Crim.R. 29(A) motion, which the

trial court denied. (July 20, 2017 Tr., Vol. IV, at 649-653). The matter was

submitted to the jury, which found Thompson guilty as to the counts of the

indictment. (Id. at 754-763). The jury found Thompson guilty of the specification

in Counts One and Four alleging that Thompson committed the offenses in the

presence of a juvenile. (Id. at 755, 761). Also as to Count Four, the jury found that

the amount of cocaine exceeded five grams and exceeded ten grams. (Id. at 760-

761). The jury found that the surveillance-security system is subject to forfeiture.

(Id. at 756, 757, 759). The jury found that the $1,415 in US currency and two

cellphones are not subject to forfeiture. (Id. at 755-761).

{¶88} We first review the sufficiency of the evidence supporting

Thompson’s endangering-children conviction. State v. Velez, 3d Dist. Putnam No.

12-13-10,

, citing State v. Wimmer, 3d Dist. Marion No. 9-98-

46,

, *1 (Mar. 26, 1999).

{¶89} The criminal offense of endangering children is codified in R.C.

2919.22, which provides, in relevant part:

No person, who is the parent * * * of a child under eighteen years of

age * * *, shall create a substantial risk to the health or safety of the

child, by violating a duty of care, protection, or support.”

-36- Case No. 13-17-26

R.C. 2919.22(A). The phrase “substantial risk” in R.C. 2919.22(A) “means a strong

possibility, as contrasted with a remote or significant possibility, that a certain result

may occur or that certain circumstances may exist.” R.C. 2901.01(A)(8). The

Supreme Court of Ohio concluded that recklessness is an essential element of the

crime of endangering children under R.C. 2919.22(A). State v. McGee,

(1997), syllabus.

A person acts recklessly when, with heedless indifference to the

consequences, the person disregards a substantial and unjustifiable

risk that the person’s conduct is likely to cause a certain result or is

likely to be of a certain nature. A person is reckless with respect to

circumstances when, with heedless indifference to the consequences,

the person disregards a substantial and unjustifiable risk that such

circumstances are likely to exist.

R.C. 2901.22(C). “Thus, to support a conviction for child endangering under R.C.

2919.22(A), it must be established, beyond a reasonable doubt, that [Thompson] (1)

recklessly (2) created a substantial risk to the health or safety of one or more of her

children (3) by violating a duty of care, protection or support.” State v. Norris, 9th

Dist. Lorain No. 14CA010699,

.

{¶90} In her second assignment of error, Thompson argues that there is

insufficient evidence that she endangered her children because there is insufficient

-37- Case No. 13-17-26

evidence that her children were present when Thompson sold narcotics to

Heffelfinger. She argues that the only evidence that the State presented at trial that

her children were present when she sold narcotics to Heffelfinger is Officer Elliott’s

testimony that “he may have heard what appeared to by [sic] children’s voices in

the background on one audio.” (Appellant’s Brief at 14, citing July 17, 2017 Tr.,

Vol. I, at 187). Thompson argues that the State did not offer any corroborating

evidence that children were present at that time. Absent that evidence, Thompson

argues that she was convicted of endangering children “based on only inferences

that were derived by [Officer Elliott’s] inferences.” (Id. at 15).

{¶91} We disagree. There is sufficient evidence that Thompson endangered

her children. Thompson ignores the evidence that she permitted narcotics and items

related to trafficking in narcotics to be present in her residence in the presence of

her children. That is, in addition to Officer Elliott’s testimony that the video

evidence of the July 14, 2015 controlled-narcotics operation depicts the sound of

multiple children in the background during the transaction with Heffelfinger, the

State presented sufficient evidence that Thompson recklessly created a substantial

risk to the health and safety of her children—ages three, five, and six—by violating

her duty of care, protection, or support.

{¶92} Indeed, Detective Boyer testified that Thompson admitted that the

three children resided at the residence. Torrance also admitted that the three

-38- Case No. 13-17-26

children resided at the residence. Likewise, Detectives Boyer and Joseph observed

evidence that the children lived at the residence while searching Thompson’s

residence on July 20, 2015. (See e.g., State’s Ex. 14). Prior to the search-warrant

execution, Detective Boyer saw Thompson leave the residence with her three

children. The children, who were in Thompson’s vehicle when law enforcement

stopped Thompson prior to executing the search warrant, were visibly upset when

Thompson was stopped. See Norris,

(concluding that the

State presented sufficient evidence that Norris endangered her children, in part,

because “when the police arrived at Norris’ house seeking permission to search it,

two of Norris’ three children were present.”). Likewise, Detective Bell testified that

he stood outside of Thompson’s residence with Thompson’s children while law

enforcement executed the search warrant.

{¶93} In addition to the evidence of children residing in the residence,

contraband evidence—narcotics and narcotics-trafficking evidence—was seized as

part of the search-warrant execution. (See State’s Exs. 8-27). Compare

(concluding that the State presented sufficient evidence that Norris endangered

her children, in part, because a “large number of drugs and criminal tools discovered

in the house.”). In particular, in addition to the larger amount of cocaine discovered

above the kitchen cabinets, law enforcement discovered cocaine “residue on one of

the stands in the bedroom,” a “pinch baggy * * * in the cushion of the living room”

-39- Case No. 13-17-26

couch, and “marijuana roaches in the ashtray in the kitchen.” (July 19, 2017 Tr.,

Vol. III, at 524, 527-528, 533). See

(concluding that the State

presented sufficient evidence that Norris endangered her children, in part, because

“drugs that were in powder form [were discovered] on the tray table in the master

bedroom.”). Stated another way, law enforcement discovered narcotics in

Thompson’s residence in areas in which there is a strong possibility that her children

could access those narcotics. Further, Torrance, the children’s father, admitted to

abusing narcotics and trafficking in narcotics—a crime of which he was convicted

and sentenced to prison three months prior to Thompson’s arrest.

{¶94} Moreover, Detective Boyer discussed the potential risks children face

residing in a residence in which narcotics are kept and trafficked, including the

ingesting the narcotics and being exposed to criminals—drug addicts—who visit

the residence to purchase narcotics. Not only is there evidence that narcotics were

discovered in locations of Thompson’s residence that her children could access,

there is evidence that Heffelfinger—a criminal and drug addict—visited the home

to purchase cocaine.

{¶95} Viewing this evidence in a light most favorable to the prosecution, we

conclude that Thompson’s endangering-children conviction is supported by

sufficient evidence. A rational trier of fact could have found that Thompson

recklessly created a substantial risk to the health and safety of her children. See

-40- Case No. 13-17-26

. See also State v. Ray, 2d Dist. Montgomery No. 24536, 2012-Ohio-

840, ¶ 16 (“‘Several courts have held that permitting illegal drugs to be present in

the home or presence of children is a violation of R.C. 2919.22(A).’”), quoting State

v. Byrd, 2d Dist. Champaign No. 99-CA-17,

, *2 (April 7, 2000),

citing State v. Tschudy, 9th Dist. Summit No. 16820,

, *2 (May

24, 1995), In re Beeman, 11th Dist. Lake No. 93-L-098,

, *3 (Nov.

4, 1994), and State v. Moore, 6th Dist. Sandusky No. S-90-16,

,

*5 (Sept. 20, 1991). Accordingly, Thompson’s endangering-children conviction is

based on sufficient evidence.

{¶96} Having concluded that Thompson’s endangering-children conviction

is based on sufficient evidence, we next address Thompson’s argument that her

trafficking-in-cocaine and possessing-criminal-tools convictions are against the

manifest weight of the evidence. Velez,

. We will begin

by addressing Thompson’s manifest-weight-of-the-evidence arguments as they

relate to her trafficking-in-cocaine convictions, then we will address her manifest-

weight-of-the-evidence argument as it relates to her possessing-criminal-tools

conviction.

{¶97} The criminal offense of trafficking-in-cocaine is codified in R.C.

2925.03, which provides, in relevant part:

(A) No person shall knowingly do any of the following:

-41- Case No. 13-17-26

(1) Sell or offer to sell a controlled substance or a controlled

substance analog;

(2) Prepare for shipment, ship, transport, deliver, prepare for

distribution, or distribute a controlled substance or a controlled

substance analog, when the offender knows or has reasonable cause

to believe that the controlled substance or a controlled substance

analog is intended for sale or resale by the offender or another person.

***

(C) Whoever violates division (A) of this section is guilty of one of

the following:

***

(4) If the drug involved in the violation is cocaine or a compound,

mixture, preparation, or substance containing cocaine, whoever

violates division (A) of this section is guilty of trafficking in cocaine.

The penalty for the offense shall be determined as follows:

***

(d) Except as otherwise provided in this division, if the amount of

the drug involved equals or exceeds ten grams * * * and if the offense

was committed in the * * * vicinity of a juvenile, trafficking in cocaine

is a felony of the second degree.

-42- Case No. 13-17-26

R.C. 2925.03(A)(1), (2), (C)(4)(d).

{¶98} Challenging the weight of the evidence supporting her trafficking-in-

cocaine conviction under R.C. 2925.03(A)(2), (C)(4)(d), Thompson argues in her

first assignment of error that the evidence that she “intended to prep the cocaine [“in

an amount exceeding 10 grams”] found in the home for sale” is outweighed by the

evidence that she did not prepare cocaine in an amount greater than ten grams for

distribution. That is, Thompson offers two arguments challenging her conviction

under R.C. 2925.03(A)(2), (C)(4)(d): (1) Thompson challenges the evidence that

she “was preparing to distribute cocaine” and (2) Thompson challenges the evidence

that the weight of the cocaine exceeded ten grams.

{¶99} Thompson contends that the following evidence that she was not

preparing to distribute cocaine is weightier than the evidence that she was preparing

to distribute cocaine: (1) “[t]he cocaine found in [Thompson’s] kitchen cupboard

as a result of the search warrant was not even close to being the same weight as the

cocaine allegedly sold during the controlled-buys”; (2) the cocaine from the

cupboard was “of different color, hardness and texture” than the cocaine from the

controlled-narcotics operations; (3) “[n]othing found in the home was prepackaged

for sale and there were no packages the size of what the CI allegedly bought”; (4)

“the officer that photographed all the items seized from the warrant did not

photograph any baggies used to package cocaine”; (5) “the cocaine turned over to

-43- Case No. 13-17-26

law enforcement by the CI after the controlled-buys had various weights, indicating

that no scales were used or that the weights were not accurate” despite that “scales

were found in [Thompson’s] home”; and (6) Thompson’s “husband [is] a known

drug user and trafficker in cocaine.” (Appellant’s Brief at 11). Stated differently,

Thompson argues that the weight of the evidence corroborates that the cocaine was

for personal use.

{¶100} Notwithstanding that evidence, this is not an exceptional case where

the evidence weighs heavily against Thompson’s conviction. See State v. Suffel, 3d

Dist. Paulding No. 11-14-05,

. Rather, the evidence weighing

in favor of the jury’s conclusion that Thompson was preparing the cocaine for

distribution is weightier than the evidence that she was not preparing the cocaine

for distribution.

{¶101} The jury heard the testimony of Officer Elliott and Detective Boyer

that, based on their training and experience, the cocaine constituted an amount

greater than what they typically see as “personal use” cocaine. In addition, the jury

heard law enforcement describe the items seized as part of the search-warrant

execution. Regarding that evidence, the jury heard Detective Boyer’s opinion that,

based on his training and experience, the combination of the cocaine, the large

amount of US currency in small denominations, the scale, the weight, the pinch

baggies, and the surveillance system is indicative that Thompson was preparing the

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cocaine for distribution. Compare State v. Owens, 9th Dist. Summit No. 23267,

(noting that “the possession of 124.7 grams of powder cocaine,

digital scale, sandwich bags, rubber bands, and small denomination bills totaling

$2,600, permits a reasonable inference that [Owens] was preparing cocaine for

shipment or distribution”), citing State v. Williams, 1st Dist. Hamilton No. C-

040747,

, State v. Lyles,

(1989), State

v. Smith, 3d Dist. Union No. 14-01-28, 2002-Ohio 5051, ¶ 22, and State v. Jolly, 8th

Dist. Cuyahoga No. 70482,

, *4 (July 10, 1997). See also State v.

Carroll, 9th Dist. Summit No. 241109,

(concluding that the

jury did not lose its way in concluding that Carroll prepared narcotics for

distribution because “a large amount of drugs and items associated with drug

trafficking were found”); State v. Bowling, 8th Dist. Cuyahoga No. 93052, 2010-

Ohio-3595, ¶ 58 (Bowling’s personal-use “argument is belied not only by the way

the drugs were packaged, but by the $250 in cash recovered from Bowling-an

amount of cash that could suggest to a rational trier of fact that Bowling had been

selling the crack cocaine rather than buying it.”).

{¶102} Moreover, the jury could reasonably infer from the evidence

presented at trial that Thompson was preparing the cocaine for distribution. “A jury

can make reasonable inferences from the evidence.” State v. Knight, 10th Dist.

Franklin No. 16AP-288,

. “‘It is permissible for a jury to draw

-45- Case No. 13-17-26

inferences from the facts presented to them.’”

quoting State v. Sanders, 6th

Dist. Lucas No. L-96-379,

, *3 (Feb. 13, 1998), citing State v.

Palmer,

(1997). “‘The weight given to an inference is a

question for the trier of fact and will not be disturbed unless it is such that reasonable

minds could not reach such a conclusion.’”

quoting Sanders at *3, citing Palmer

at paragraph four of the syllabus.

{¶103} Officer Wedge described for the jury how cocaine is packaged for

sale. Each of Heffelfinger’s crack cocaine purchases from Thompson are of less

weight than the cocaine that was found in Thompson’s kitchen. Heffelfinger’s

purchases of $60 worth of cocaine from Thompson are approximately the same size,

while his purchase of $100 worth of cocaine from Thompson is approximately

double the size of the $60 purchases. Despite Thompson’s argument regarding the

various weights of the cocaine purchased by Heffelfinger, the jury heard Detective

Boyer’s testimony that narcotics traffickers do not sell drugs in the same amounts

“especially with crack cocaine [because] there’s no uniform size.” (July 19, 2017

Tr., Vol. III, at 570).

{¶104} Thompson’s personal-use argument is also belied by the evidence

that law enforcement did not find evidence of crack-cocaine abuse in Thompson’s

residence, in Thompson’s vehicle, or on Thompson. In particular, Detective Boyer

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told the jury that law enforcement did not find instruments—crack pipes or chore

boys—that crack-cocaine users utilize to abuse that drug.

{¶105} Although Torrance admitted that he used and sold narcotics,

Torrance testified that he used “[a] half gram” “[f]our or five times a day” of the

powder form of cocaine. Crack cocaine and cocaine in powder form were found in

Thompson’s residence. Since Torrance did not admit to using crack cocaine and

there was no evidence of crack-cocaine abuse discovered in the residence, the jury

could discount Torrance’s personal-use explanation. Also discrediting Torrance’s

personal-use explanation is the amount of powder cocaine found—5.81 grams. That

is, 5.81 grams is more than double the amount of cocaine that Torrance claimed to

use per day. Moreover, Torrance did not claim ownership of the cocaine found in

the kitchen.

{¶106} The jury also heard how crack cocaine is derived from powder

cocaine. Since there was one larger bag of cocaine in powder form coupled with a

larger bag of crack cocaine, the jury could reasonably infer that Thompson was

preparing the powder cocaine for distribution by turning the powder cocaine into

crack cocaine and repackaging and selling the crack cocaine in smaller quantities—

similar to what was purchased by Heffelfinger. This inference is also bolstered by

the evidence of the “crumbs or flakes” of crack cocaine found on a stand in

Thompson’s bedroom. The jury could infer that Thompson was dividing the larger

-47- Case No. 13-17-26

amount of crack cocaine and repackaging it into smaller amounts on the stand in the

bedroom and the “crumbs or flakes” is what was left over from that process.

Furthermore, the jury could infer that Thompson was the person preparing the

cocaine for distribution because Torrance had been in prison for over three months

at the time of Thompson’s arrest.

{¶107} Considering all of the evidence, we cannot say that the jury lost its

way in concluding that Thompson was preparing the cocaine for distribution. See

State v. Cereghin, 3d Dist. Paulding No. 11-03-10,

(concluding that the jury’s conclusion that Cereghin was preparing marijuana for

distribution was not against the manifest weight of the evidence based on “[t]he

circumstantial evidence and testimony tending to show that Cereghin prepared the

marijuana for distribution”); State v. Gilcreast, 9th Dist. Summit No. 21533, 2003-

Ohio-7177, ¶ 50 (concluding that Gilcreast’s trafficking-in-marijuana conviction

was not against the manifest weight of the evidence based on the circumstantial

evidence adduced at trial that Gilcreast was preparing the marijuana for

distribution). See also State v. Brown, 10th Dist. Franklin No. 16AP-753, 2017-

Ohio-7134, ¶ 26 (concluding that Brown’s convictions were not against the manifest

weight of the evidence despite that his convictions were based largely on

circumstantial evidence). For these reasons, the jury’s conclusion that Thompson

-48- Case No. 13-17-26

was preparing the cocaine for distribution is not against the manifest weight of the

evidence.

{¶108} Regarding her challenge to the weight of the evidence supporting that

the cocaine weighed more than ten grams, Thompson contends that the jury lost its

way in believing the cocaine exceeded that weight based on the conflicting

testimony pertaining to the weight of the cocaine. Thompson argues that the weight

of the evidence illustrates that the cocaine weighed less than ten grams because (1)

Detective Boyer indicated that the cocaine weighed more than five grams but less

than ten grams in the initial complaint based on the presumptive weight that he

recorded and (2) Thompson’s expert-witness’s testimony that the cocaine weighed

less than ten grams. Thompson contends that, if the cocaine weighed greater than

ten grams, Detective Boyer’s presumptive weight would have reflected a weight

greater than ten grams because he weighed the cocaine along with its packaging.

Further, Thompson contends that “there was so much plastic [packaging] that

[Detective Boyer] mistakenly thought there were four baggies and not the three that

were actually there.” (Appellant’s Brief at 9).

{¶109} Thompson’s argument essentially asks this court to believe her expert

witness’s testimony over the State’s expert witness’s testimony based on the

presumptive weight of the cocaine that Detective Boyer attested to in the complaint.

However, we will not second-guess the weight that the jury assigned to the cocaine-

-49- Case No. 13-17-26

weight evidence or the jury’s witness-credibility determination unless it is clear that

the jury lost its way and a miscarriage of justice occurred. See State v. Mitchell, 8th

Dist. Cuyahoga No. 93076,

, ¶ 20. See also State v. Banks, 8th Dist.

Cuyahoga No. 96535,

(“Although we review credibility

when considering the manifest weight of the evidence, the credibility of witnesses

is primarily a determination for the trier of fact.”), citing DeHass,

, at paragraph one of the syllabus. “The trier of fact is best able ‘to view the

witnesses and observe their demeanor, gestures[,] and voice inflections, and use

these observations in weighing the credibility of the proffered testimony.’”

quoting State v. Wilson,

,

, ¶ 24, citing Seasons

Coal Co., Inc. v. Cleveland,

(1984). After reviewing the

evidence, we cannot conclude that the jury lost its way and created such a manifest

miscarriage of justice in concluding that the cocaine weighed greater than ten grams

that Thompson’s trafficking-in-cocaine conviction under R.C. 2925.03(A)(2),

(C)(4)(d) must be reversed and a new trial ordered.

{¶110} The State’s expert witness, Tipton, concluded that the gross weight

of the cocaine was 11.06 grams at the time of her analysis in July 2015. Tipton

weighed the cocaine ten days after it was seized. Thompson’s expert witness,

Lattanzio, analyzed the cocaine’s weight nearly 18 months later on January 26, 2017

and concluded that its gross weight was 9.51 grams.

-50- Case No. 13-17-26

{¶111} The jury heard that water is typically present in crack cocaine

because it is a necessary component in the process of turning cocaine into crack

cocaine. The jury also heard that crack cocaine loses weight over time because the

water in the crack cocaine evaporates. Likewise, the jury was informed that weight

loss also occurs from the sample removed from the evidence for analysis.

{¶112} Both expert witnesses noted that, of the two bags of cocaine at issue,

one contained cocaine in powder form and the other contained crack cocaine.

Lattanzio agreed that the weight she obtained from the cocaine in powder form was

essentially the same result that Tipton obtained. As such, the jury was free to believe

that the crack cocaine’s reduction in weight over the 18-month period was the result

of moisture evaporation. Likewise, the jury was free to accept Tipton’s analysis

since the jury was informed that cocaine traffickers do not dry crack cocaine prior

to selling it because “they want to get the most weight out of it to get the most

money.” (July 19, 2017 Tr., Vol. III, at 536). Indeed, because of the way in which

the Revised Code defines cocaine, it is inconsequential whether the cocaine is wet

or dry when it is weighed. See R.C. 2925.01(X) (2014) (current version at R.C.

2925.01(X) (2017). See also State v. Jones, 7th Dist. Mahoning No. 06 MA 17,

. As such, the jury was free to accept the weight of the

cocaine established closer to the point in time it was discovered in Thompson’s

residence.

-51- Case No. 13-17-26

{¶113} Moreover, Detective Boyer was not certified as an expert witness;

testified that he is not an expert in weighing controlled substances; testified that the

digital scale that he used to obtain the presumptive weight of the cocaine was not

calibrated; and admitted that the weight indicated in the complaint was a mistake.

For these reasons, we conclude that the jury did not lose its way in concluding that

the cocaine weighed greater than ten grams. See Jones at ¶ 41, citing State v.

Alexander, 8th Dist. Cuyahoga No. 85688,

, ¶ 53-54 and State v.

Burrell, 8th Dist. Cuyahoga No. 86702,

.

{¶114} We conclude that Thompson’s trafficking in cocaine conviction

under R.C. 2925.03(A)(2), (C)(4)(d) is not against the manifest weight of the

evidence.

{¶115} In her fourth assignment of error, Thompson argues that the evidence

that she sold cocaine to Heffelfinger is outweighed by the evidence that she did not

sell cocaine to Heffelfinger. In particular, she argues that “the CI was so incredible

and the execution of the controlled buys so unreliable, that the convictions were

against the manifest weight of the evidence introduced at trial.” (Appellant’s Brief

at 18).

{¶116} Regarding Heffelfinger’s credibility, Thompson argues that

Heffelfinger had reason to fabricate purchasing cocaine from Thompson—namely,

“to avoid prosecution for his own crimes.” (Id.). Similarly, Thompson argues that

-52- Case No. 13-17-26

law enforcement’s controlled-narcotics-operation protocol is unreliable and that

Heffelfinger could have “set-up” Thompson by hiding the drugs on his person or in

his vehicle.

{¶117} Although Heffelfinger admitted that he is a drug addict, has a felony

record, and was motivated to work with law enforcement as a CI to avoid

prosecution for possessing cocaine, “we are mindful of the jury’s ‘superior first-

hand perspective in judging the demeanor and credibility of witnesses.’” Suffel,

, quoting State v. Phillips, 10th Dist. Franklin No. 14AP-79,

, citing DeHass,

, at paragraph one of the

syllabus. The jury heard the testimony of four law-enforcement officers regarding

the pre-and-post operational protocol the Task Force utilizes to protect the integrity

of their narcotics investigations that employ CIs since CIs are inherently

untrustworthy. That is, the jury heard that law enforcement searched Heffelfinger

and Heffelfinger’s vehicle and did not find any contraband.

{¶118} Further, the jury heard the testimony of Heffelfinger who described

the controlled-narcotics operations identically to law enforcement’s descriptions.

The jury was also able to view the video recording of two of the three controlled-

narcotics operations. Indeed, in one of those recordings, the jury was able to observe

Thompson place the cocaine on the window sill and Heffelfinger retrieve it. (See

State’s Exs. 3, 5). That evidence is weightier than the evidence that Heffelfinger

-53- Case No. 13-17-26

fabricated that he purchased cocaine from Thompson during the three controlled-

narcotics operations. See State v. Patterson, 8th Dist. Cuyahoga No. 80409, 2002-

Ohio-3100, ¶ 25 (concluding that Patterson’s trafficking convictions were not

against the manifest weight of the evidence despite Patterson’s argument that the CI

was “exclusively responsible for supplying the [narcotics] evidence”). See also

State v. Thompson, 8th Dist. Cuyahoga No. 83382,

(rejecting

Thompson’s argument that his trafficking-in-cocaine conviction was against the

manifest weight of the evidence because CIs are not credible). As such, we conclude

that Thompson’s trafficking-in-cocaine convictions under R.C. 2925.03(A)(1) are

not against the manifest weight of the evidence. See State v. Fisher, 3d Dist. Hardin

No. 6-13-03,

(concluding that Fisher’s trafficking conviction

was not against the manifest weight of the evidence based on his sale of bath salts

to a CI). See also State v. Mason, 5th Dist. Stark No. 2003CA00438, 2004-Ohio-

4896, ¶ 15-20.

{¶119} Finally, in her third assignment of error, Thompson challenges the

weight of the evidence supporting her possessing-criminal-tools conviction. The

criminal offense of possessing-criminal-tools is codified in R.C. 2923.24, which

provides, in relevant part, “No person shall possess or have under the person’s

control any substance, device, instrument, or article, with purpose to use it

criminally.” R.C. 2923.24(A).

-54- Case No. 13-17-26

{¶120} On appeal, Thompson argues only that the evidence that the “scales,

weight, bag, cash, and phones” were used in conjunction with her trafficking-in-

cocaine offenses is less weighty than the evidence that she did not criminally use

those items. That is, she argues that there is no evidence connecting those tools to

her trafficking-in-cocaine convictions. In support of her argument, she points to the

evidence that: (1) “the cocaine turned over to law enforcement by the CI after the

controlled-buys had various weights, indicating that no scales were used”; (2) “[n]o

fillers or other items for dividing substances were found”; (3) “there was nothing

unusual about a household of [Thompson’s household’s] size having multiple

phones and law enforcement never obtained phone records to see who the phones

were registered to”; the cocaine discovered “was very high up and yellow, which is

consistent the [sic] oxidation process overtime, which indicates that it may have

been old”; (4) “nothing found in the home was prepackaged for sale and there were

no packages the size of what the CI allegedly bought”; and (5) law enforcement “did

not photograph any baggies used to package the cocaine.” (Appellant’s Brief at 16).

{¶121} The jury’s conclusion that Thompson intended to criminally use the

items seized by law enforcement is not against the manifest weight of the evidence.

As we noted above, it is within the jury’s prerogative to draw reasonable inferences

from the evidence presented at trial. Knight,

. Again, this

court will not disturb the weight given to an inference by the trier of fact unless it is

-55- Case No. 13-17-26

such that reasonable minds could not reach that conclusion.

Reasonable minds

could reasonably infer that Thompson intended to criminally use substances,

devices, instruments, or articles that she possessed. See State v. Porter, 8th Dist.

Cuyahoga No. 57251,

, *2 (July 19, 1990) (“The trier of fact could

have reasonably inferred that the appellant intended to use the money for criminal

purposes as part of his illegal drug trade.”).

{¶122} In addition to the narcotics discovered during the search-warrant

execution, law enforcement discovered a surveillance system with surveillance

cameras positioned to view the outside of the residence along with monitors and a

recording device inside the residence. (See State’s Exs. 9, 10, 11). Officer Elliott

testified that surveillance systems are commonly found in homes of narcotics

traffickers “to monitor their residence against theft” and “police.” (July 17, 2017

Tr., Vol. I, at 201).

{¶123} Also discovered were: a digital scale, a weight, three cell phones;

pinch baggies in the trash can; a pinch baggy in the cushion of the living-room

couch; and a large amount of US currency in small denominations. (See State’s

Exs. 13, 18, 19, 35). Law enforcement indicated that the combination of those items

is indicative of drug trafficking. See State v. Toland, 8th Dist. Cuyahoga No. 95322,

(concluding that Toland’s possessing-criminal-tools

conviction was not against the manifest weight of the evidence based on the

-56- Case No. 13-17-26

“cumulative effect” of law enforcement’s testimony that Toland’s possession of

“$630 in U.S. currency, a gun, scale, and packaging materials” was indicative of

Toland’s intent to use them criminally). Likewise, the scale and the weight were

discovered within close proximity—in the kitchen. Law enforcement informed the

jury that a weight is commonly used to check the accuracy of a scale.

{¶124} Moreover, the evidence adduced at trial reflected that Thompson did

not file tax returns from 2014 through 2016 and filed an affidavit of indigency in

this case indicating that she receives $500 monthly in income, has zero liquid assets,

and has monthly expenses of $385. Yet, in addition to the greater than $1,400 in

cash found in Thompson’s possession, law enforcement observed “modern and

nice” furnishings, “newer furniture, newer appliances,” and “remodeling going on

in the home.” (July 18, 2017 Tr., Vol. II, at 456). According to law enforcement,

that evidence is not consistent with the evidence that Thompson is indigent and did

not report any legitimate income to the IRS from 2014 through 2016. Indeed,

Detective Boyer testified that “normal” people do not have “numerous cell phones

along with digital scales, weights, large amounts of cash when they’re unemployed

or not filing taxes, and large amounts of controlled substances.” (July 19, 2017 Tr.,

Vol. III, at 569-570).

{¶125} We conclude that the jury made a reasonable inference from that

evidence that Thompson intended to criminally use the items seized by law

-57- Case No. 13-17-26

enforcement. See Knight,

. Thus, this is not an exceptional

case where the evidence weighs heavily against Thompson’s possessing-criminal-

tools conviction. As such, Thompson’s possessing-criminal-tools conviction is not

against the manifest weight of the evidence.

{¶126} Thompson’s assignments of error are overruled.

{¶127} 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

WILLAMOWSKI, P.J. and SHAW, J., concur.

/jlr

-58-