[Cite as State v. Mathis,

.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, : CASE NO. 2018-L-111 - vs - :

BRYAN B. MATHIS, :

Defendant-Appellant. :

Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2016 CR 000368.

Judgment: Affirmed.

Charles E. Coulson, Lake County Prosecutor, and Jennifer A. McGee, Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).

Vanessa R. Clapp, Lake County Public Defender, and Melissa Ann Blake, Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant- Appellant).

MATT LYNCH, J.

{¶1} Defendant-appellant, Bryan B. Mathis, appeals his convictions, following a

jury trial, in the Lake County Court of Common Pleas, for Trafficking in Marijuana and

Resisting Arrest. The issues to be determined by this court are whether a conviction for

Trafficking in Marijuana is supported by the evidence when the marijuana recovered

from the defendant was packaged separately and he was in possession of a large sum

of cash and whether a conviction for Resisting Arrest is supported by the evidence when the defendant tried to flee after he had already been handcuffed and placed in the

police cruiser and when he believed the arrest was unlawful. For the following reasons,

we affirm the decision of the court below.

{¶2} On August 12, 2016, Mathis was indicted by the Lake County Grand Jury

for the following: Trafficking in Marijuana (Count One), a felony of the fifth degree, in

violation of R.C. 2925.03(A)(2); Possessing Criminal Tools (Count Two), a felony of the

fifth degree, in violation of R.C. 2923.24; Resisting Arrest (Count Three), a

misdemeanor of the second degree, in violation of R.C. 2921.33(A); and Possession of

Marijuana (Count Four), a minor misdemeanor, in violation of R.C. 2925.11. Counts

One, Two, and Four also had R.C. 2941.1417 forfeiture specifications.

{¶3} Mathis filed a Motion to Suppress and the trial court suppressed

statements made while he was questioned in a police cruiser without being read his

Miranda rights. The court permitted the inclusion of marijuana obtained after

questioning pursuant to the doctrine of inevitable discovery.

{¶4} A jury trial was held on June 19 and 20, 2018. Prior to voir dire, the State

moved to dismiss Counts Two and Four and the accompanying forfeiture specifications.

At trial, the following testimony and evidence were presented on the remaining charges.

{¶5} On April 3, 2016, at around 9 p.m., Patrolman Don Swindell of the Mentor

Police Department stopped a vehicle for a marked lanes violation. Upon stopping the

car, in which Mathis was a passenger, Swindell discovered that it was a rental car.

During the stop, Swindell observed the odor of burnt marijuana, which is indicative of

smoking marijuana. He also discovered that Mathis had a “prior traffic ticket” that “he

needed to deal with,” removed him from the vehicle, handcuffed him, and checked him

for weapons. At that time, he found that Mathis had large wads of currency in both of

2 his front pockets, which he testified was in different denominations ranging from $5 to

$50. Swindell did not testify to the total amount of money recovered but stated that

Mathis’ right pocket contained $1,508.1

{¶6} Mathis was then placed in the rear of Swindell’s police cruiser while he

was awaiting confirmation on the traffic ticket from another agency. While Mathis was in

the cruiser, Swindell smelled raw marijuana. Swindell had Mathis exit the vehicle,

conducted a further search, and located a “large baggie that contained smaller baggies

of prepackaged marijuana” in Mathis’ underwear. There were eight separately

packaged baggies “that were similar in size and weight.” In Swindell’s opinion, the

weights of the marijuana and packaging, as well as the way the money was carried, was

consistent with distribution of drugs. Patrolman Ryan Heramb, who participated in the

stop, concurred with this opinion. Swindell also opined that the use of rental cars was

common among drug dealers and traffickers, since the car driven while committing a

trafficking offense is subject to forfeiture.

{¶7} Swindell testified that after the marijuana was recovered, Mathis was told

he would be arrested for trafficking. At that time, Mathis attempted to run and Swindell

and Heramb tried to stop him. All three men fell, there was a struggle, and the officers

were able to get Mathis back into the police car.

{¶8} Patrolman Michael Orf testified that a search of the vehicle did not recover

a wallet or drug paraphernalia such as rolling paper or pipes. Cigarettes were

recovered but there was no marijuana found within the cigarettes.

1. The State points out that Mathis inaccurately states the amount of money recovered in his brief. The State contends that Mathis had a total of $2,998 in his pockets, referencing an exhibit which had been presented at the suppression hearing but not at trial. As to the evidence presented at trial, Swindell testified that upon a recount done in preparation for trial, $1,508 was found in Mathis’ right pocket rather than $1,488, and notations on an evidence bag showed that $1,510 was recovered from his left front pocket, for a total of $3,018.

3 {¶9} William Koubek, a forensic analyst at the Lake County Crime Laboratory,

testified that the total amount of marijuana was 33.79 grams. The amount contained

within the individual baggies was 6.8, 6.7, 3.46, 3.41, 3.4, 3.38, 3.35, and 3.29 grams.

{¶10} Sergeant Brad Kemp of the Lake County Narcotics Agency testified that

the packaging and weight of the drugs was indicative of drug trafficking and he did not

believe it would be individually packaged if it was for personal use. Typically drug

dealers do not give multiple individual bags to a purchaser of marijuana. He opined that

the amount of drugs in Mathis’ possession was enough marijuana for 101 joints, which

would also be inconsistent with personal use. The weights of the marijuana baggies

were consistent with a quarter or half ounce of marijuana, a weight usually sold on the

street. He also believed the large quantity of money was indicative of drug trafficking.

{¶11} Following the conclusion of the prosecution’s case, Mathis moved for

acquittal pursuant to Crim.R. 29, which motion was denied by the trial court.

{¶12} For the defense, Krystina Conwell, who lives with Mathis and has a child

with him, testified that on April 3, 2016, after receiving a tax refund of around $6,500,

she gave Mathis $3,000 in cash to pay for back rent, which he put in his pockets. She

explained that the rental car Mathis was in had been rented by her while her vehicle

was being repaired. Conwell testified that she, Mathis, and their roommate used

marijuana frequently with each other and while socializing with other friends. Mathis

would purchase marijuana every week or two, which came packaged in different

manners (including in separate bags on some occasions), and would separate it for

their use.

{¶13} On June 20, 2018, the jury found Mathis guilty of Trafficking in Marijuana

and Resisting Arrest.

4 {¶14} After a September 4, 2018 sentencing hearing, Mathis was ordered to

serve a term of 11 months in prison on Count One and 30 days on Count Three, to be

served concurrently. The sentence was memorialized in a September 6, 2018

Judgment Entry of Sentence.

{¶15} Mathis timely appeals and raises the following assignments of error:

{¶16} “[1.] The trial court erred to the prejudice of defendant-appellant when it

denied his motion for acquittal made pursuant to Crim.R. 29(A).

{¶17} “[2.] The trial court erred to the prejudice of the defendant-appellant when

it returned a verdict of guilty against the manifest weight of the evidence.”

{¶18} We will consider Mathis’ assignments of error, which relate to the weight

and sufficiency of the evidence, jointly.

{¶19} Crim.R. 29(A) provides, in pertinent part: “[t]he court * * * shall order the

entry of a judgment of acquittal of one or more offenses charged * * * if the evidence is

insufficient to sustain a conviction of such offense or offenses.” In reviewing the

sufficiency of the evidence, “[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.” State v. Jenks,

,

(1991), paragraph two of the syllabus,

following Jackson v. Virginia,

,

,

(1979).

{¶20} Whereas “sufficiency of the evidence is a test of adequacy as to whether

the evidence is legally sufficient to support a verdict as a matter of law, * * * weight of

the evidence addresses the evidence’s effect of inducing belief.” State v. Wilson,

,

,

, ¶ 25, citing State v. Thompkins,

,

(1997). “[A] reviewing court asks whose

5 evidence is more persuasive—the state’s or the defendant’s?”

An appellate court

must consider all the evidence in the record, the reasonable inferences, the credibility of

the witnesses, and 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.” (Citation omitted.)

. “Since there

must be sufficient evidence to take a case to the jury, it follows that ‘a finding that a

conviction is supported by the weight of the evidence necessarily must include a finding

of sufficiency.’” (Citation omitted.) State v. Arcaro, 11th Dist. Ashtabula No. 2012-A-

0028,

.

{¶21} In order to be convicted of Trafficking in Marijuana, the State was required

to prove, beyond a reasonable doubt, that Mathis did “knowingly * * * [p]repare for

shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled

substance” when he knew or had reasonable cause to believe that the substance was

“intended for sale or resale by the offender or another person.” R.C. 2925.03(A)(2).

{¶22} Mathis argues that there was a lack of evidence to demonstrate that he

was in possession of marijuana for purposes other than his personal use.

{¶23} As to this issue, there was a multitude of evidence to support the jury’s

finding that Mathis knowingly distributed/transported marijuana for the purpose of sale.

The marijuana found hidden in his underwear was packaged in one larger baggie with

several smaller baggies located inside. The amounts of the marijuana inside those

smaller baggies were of similar weights. Three officers, who testified to their experience

with handling marijuana cases, believed that this was consistent with drug trafficking.

Sergeant Kemp of the Lake County Narcotics Agency, who has extensive experience

with drugs and drug trafficking, explained that the amount purchased was inconsistent

6 with personal use. Kemp noted that the large amount of cash found on Mathis’ person

was also common among drug traffickers. Finally, Swindell testified that the use of a

rental car is common in trafficking cases. All of these facts weighed in favor of the

conclusion that Mathis committed the offense of drug trafficking.

{¶24} Mathis argues that there was a lack of evidence to demonstrate that items

relating to trafficking were present and that there was instead evidence of personal use

through the smell of smoked marijuana and sweet cigarette wrappers, which can be

used for smoking marijuana. While it is true that evidence of preparing the drugs for

trafficking may make for a stronger case, this is only one factor to be considered. As to

the personal use of the marijuana, Kemp testified that it is common for drug traffickers

to also smoke marijuana. Further, he noted that the amount on Mathis’ person would

be enough to produce approximately 101 marijuana joints, an amount which he did not

believe was consistent with personal use. Thus, these arguments hold limited weight.

{¶25} Mathis also maintains there was no evidence of a potential customer for

the marijuana. There is no requirement to prove any actual sale or purchaser of

marijuana to demonstrate trafficking, as Mathis was charged under the theory that he

was transporting marijuana with the intent to sell.

{¶26} The remaining arguments raised by Mathis all rely upon the testimony of

Conwell, the mother of Mathis’ child with whom he lives. She contended that she had

given him a large amount of cash on the day he was arrested to pay the rent, which she

had taken out of the bank after receiving her tax refund. There are several credibility

issues that could have been questioned by the jurors, such as whether the fact that the

money was in many denominations (50s, 20s, 10s, and 5s) was consistent with a

withdrawal from a bank or with conducting drug transactions and why Mathis may have

7 the entirety of “rent” money on his person in both pockets at 9:00 p.m. The issue

of credibility of witnesses is for the trier of fact to determine and “an appellate court may

not substitute its own judgment.” State v. Starkey, 11th Dist. Ashtabula No. 2017-A-

0022,

, citing State v. Awan,

,

(1986).

{¶27} Conwell also testified that she had rented the vehicle in which Mathis was

riding because her car was in the shop for repairs. No documentary evidence of the

rental was presented and at the time of the stop, the vehicle was being driven by

another female who was not identified. Furthermore, when questioned as to why her

vehicle was in the shop she said “I don’t remember. I don’t think that it was an accident

at that time. I can’t remember.” This explanation, and not being able to remember if

one’s car was in an accident, could also raise credibility concerns.

{¶28} Finally, Conwell’s testimony that Mathis smokes marijuana does not

preclude a conclusion that he also is a marijuana trafficker, as discussed above. Her

testimony that Mathis sometimes purchased marijuana in separate packages for

personal use must be weighed against the testimony of multiple experienced officers

that this was uncommon. When considering the record as a whole, the officers’

explanations that the facts indicated drug trafficking rather than possession could be

reasonably viewed by the jury as more believable than those offered by Mathis through

Conwell’s testimony. In sum, there was significant evidence to support a conviction for

Trafficking in Marijuana and the jury’s verdict was not against the weight of the evidence

and, thus, it was supported by sufficient evidence. See State v. Whitsett, 8th Dist.

Cuyahoga No. 101182,

(where the defendant had individually

packaged baggies of marijuana, which officers testified were not consistent with

8 personal use and “individually crumpled up bills” on his person, the evidence supported

a conviction of trafficking).

{¶29} As to Resisting Arrest, the State was required to prove, beyond a

reasonable doubt, that Mathis “recklessly or by force * * * resist[ed] or interfere[d] with

a lawful arrest of the person or another.” R.C. 2921.33(A).

{¶30} Mathis concedes that he did attempt to run from police, constituting

resistance. The grounds for his assigned error relate solely to the elements of whether

he was under arrest and whether the arrest was lawful.

{¶31} First, Mathis argues that his conviction was not supported by the evidence

because he was already in custody when he resisted. This argument lacks merit.

{¶32} While it is accurate that Mathis was handcuffed and placed into the cruiser

prior to being removed to perform a search of his person for drugs (the point at which he

tried to flee), his actions still constituted resisting arrest. Immediately before he tried to

flee, he was informed that he would be charged with drug trafficking. Previously, he had

been placed in the cruiser while awaiting information regarding an outstanding ticket. It

is unclear whether Mathis ultimately would have been arrested for that ticket. Officer

Swindell testified that Mathis was handcuffed and checked for weapons before being

placed into the cruiser for “officer safety.” Presuming Mathis was already “under arrest”

when he was initially placed in the cruiser, a formal arrest is “not necessarily an

instantaneous event,” but instead is “a process beginning with the seizure of a person,

which can encompass acts necessary to effect the formal charging of a crime.”

(Citation omitted.) State v. Bay,

,

(1st

Dist. 1998). The initial handcuffing and detention of a defendant does not mean the

“arrest” for the purposes of resisting arrest has already been completed.

9 {¶33} The Ninth District has held that an arrest for the purposes of resisting

arrest is a fact-specific inquiry and is “established either by the defendant’s surrender or

submission to police authority or by police exertion of control over him.” State v.

Huffman,

,

(9th Dist. 1987) (a defendant who was

handcuffed and told he was under arrest but began kicking officers while partially in the

cruiser could be found guilty of resisting arrest). Several other appellate districts have

found that a resisting arrest conviction is supported by the evidence even after a

defendant was initially handcuffed and transported to the jail but before the final booking

was finished, since this completes the arrest process.

(where the prisoner

was transported to the justice center but went “limp” while being escorted inside, the

evidence supported his conviction); State v. Cole, 2d Dist. Miami No. 2009 CA 20,

, ¶ 41 (affirming a conviction where “the resistance occurred while the

officers were in the course of their booking procedures”); Cleveland v. Ellsworth, 8th

Dist. Cuyahoga No. 83040,

.

{¶34} Under the present facts, we find that the resistance occurred during the

arrest process, satisfying the arrest element. Although the officers did initially place

Mathis in a cruiser while determining what further action to take, he was subsequently

removed. At the point where he was told he would be charged with the offense of drug

trafficking, Mathis did not submit to police authority and attempted to flee. Since the

police were still in the process of investigating and determining charges, and had not

even returned him to the police cruiser to transport him to jail, we find that the act of

resistance occurred during the course of the arrest procedure and thus, the arrest

element was supported by sufficient evidence as well as the weight of the evidence.

10 {¶35} As to the argument that Mathis was not “lawfully arrested,” it is accurate

that, pursuant to R.C. 2921.33(A), the underlying arrest must be “lawful.” As found

above, there was sufficient evidence to convict Mathis of Trafficking in Marijuana, the

underlying offense for which he was arrested. Even if that were not the case, “the state

need not prove that the defendant was guilty of the offense for which the arrest is made

to uphold a subsequent conviction for resisting arrest.” State v. Parsons, 2016-Ohio-

8109,

, ¶ 32 (11th Dist.), citing State v. Wooden, 11th Dist. Portage No.

2003-P-0035,

, ¶ 32. Instead, “[t]he arresting officer must only have

probable cause to believe that the defendant’s conduct, for which the arrest is being

made, amounted to an offense.” Wooden at ¶ 32. Here, there is no question officers

had probable cause to conduct the arrest for the reasons outlined above.

{¶36} The first and second assignments of error are without merit.

{¶37} For the foregoing reasons, Mathis’ convictions for Trafficking in Marijuana

and Resisting Arrest are affirmed. Costs to be taxed against appellant.

CYNTHIA WESTCOTT RICE, J.,

MARY JANE TRAPP, J.,

concur.

11