[Cite as State v. McCoy, 2011-Ohio-6592.]


STATE OF OHIO                    )                   IN THE COURT OF APPEALS
                                 )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

STATE OF OHIO                                        C.A. No.      25584

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
SHAWN K. MCCOY                                       COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 09 09 2686

                                DECISION AND JOURNAL ENTRY

Dated: December 21, 2011



        MOORE, Judge.

        {¶1}    Appellant, Shawn McCoy, appeals from the judgment of the Summit County

Court of Common Pleas. This Court affirms.

                                                I.

        {¶2}    On September 14, 2009, McCoy was indicted on charges of trafficking in heroin

in the vicinity of a school, in violation of R.C. 2925.03(A)(C)(6), a felony of the fourth degree,

with an accompanying criminal forfeiture specification, and driving under suspension, in

violation of R.C. 4510.11, a misdemeanor of the first degree. The indictment resulted from an

alleged sale of heroin from McCoy to Tamara Williams on the afternoon of August 31, 2009, in

the parking lot of a Circle K gas station.

        {¶3}    On August 9, 2010, a jury trial commenced. After the defense rested, McCoy

amended his plea to guilty on the driving under suspension charge. Thereafter, the jury found

McCoy guilty of the charge of trafficking in heroin within the vicinity of a school and found that
                                                 2


$80.00 was subject to criminal forfeiture. The trial court sentenced McCoy to eighteen months

of incarceration.

          {¶4}   McCoy timely filed a notice of appeal and raises one assignment of error for our

review.

                                                 II.

                                   ASSIGNMENT OF ERROR

          “THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
          DENIED [] MCCOY’S MOTION FOR JUDGMENT OF ACQUITTAL UNDER
          CRIMINAL RULE 29.”

          {¶5}   In his sole assignment of error, McCoy argues that his conviction for trafficking

in heroin was not supported by sufficient evidence and was against the manifest weight of the

evidence. We do not agree.

Sufficiency of the Evidence

          {¶6}   A motion pursuant to Crim.R. 29 tests the sufficiency of the evidence presented

by the state. State v. Thompkins (1997), 78 Ohio St.3d 380, 386. The issue of whether a

conviction is supported by sufficient evidence is a question of law, which we review de novo.

Id. When considering a challenge to the sufficiency of the evidence, the court must determine

whether the prosecution has met its burden of production. Id. at 390 (Cook, J. concurring). In

making this determination, an appellate court must view the evidence in the light most favorable

to the prosecution:

          “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. The 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), 61 Ohio St.3d 259,
          paragraph two of the syllabus.
                                                  3


       {¶7}    Circumstantial and direct evidence “posses the same probative value[.]” Jenks,

61 Ohio St.3d at paragraph one of the syllabus.             “Furthermore, if the State relies on

circumstantial evidence to prove any essential element of an offense, it is not necessary for ‘such

evidence to be irreconcilable with any reasonable theory of innocence in order to support a

conviction.’ (Internal quotations omitted.)” State v. Tran, 9th Dist. No. 22911, 2006-Ohio-4349,

at ¶13, quoting State v. Daniels (June 3, 1998), 9th Dist. No. 18761, at *2.

       {¶8}    Here, McCoy challenges his conviction for trafficking in heroin within the

vicinity of a school in violation of R.C. 2925.03(A)(C)(6), which provides:

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

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

       “(2) Prepare for shipment, ship, transport, deliver, prepare for distribution, or
       distribute a controlled substance, when the offender knows or has reasonable
       cause to believe that the controlled substance 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: * * *

       “(6) If the drug involved in the violation is heroin or a compound, mixture,
       preparation, or substance containing heroin, whoever violates division (A) of this
       section is guilty of trafficking in heroin. The penalty for the offense shall be
       determined as follows: * * *

       “(b) Except as otherwise provided * * *, if the offense was committed in the
       vicinity of a school or in the vicinity of a juvenile, trafficking in heroin is a felony
       of the fourth degree[.]”

       {¶9}    At trial, the State provided the testimony of Tamara Williams, Detective Schmidt,

Detective Danzy, Detective Williams, and R. Michael Velten. Ms. Williams testified that, on

August 31, 2009, she called McCoy on his cell phone and expressed her desire to purchase

heroin from him. The two agreed to meet at the Circle K gas station near East Exchange Street

and Arlington Street in Akron, Ohio. Ms. Williams’ friend drove her to Circle K in the friend’s
                                               4


gray and blue car, and her son accompanied them, seated in the backseat. The group pulled into

the parking lot and waited about thirty minutes for McCoy to arrive. When he arrived, he

approached the window to the front passenger side of the car, where Ms. Williams was seated.

Through her open window, she gave McCoy $80.00, and he handed her what she believed to be

heroin. After exchanging a greeting with Ms. Williams’ son, McCoy walked away from the car,

and Williams, her friend, and her son, drove out of the parking lot. Within a few minutes of

leaving the parking lot, several police cars stopped the car in which Ms. Williams was riding.

She discarded the heroin on the floor of the car by her feet. When she was arrested, she told the

arresting officer that she had purchased the heroin from McCoy.

       {¶10} Detective Schmidt of the Akron Police Department’s Street Narcotics Uniformed

Detail (“SNUD”) testified that, at approximately 1:15 or 1:30 p.m., on August 31, 2009, he

received a call from what he considered a reliable informant. The informant told Detective

Schmidt that a drug deal was to take place at the Circle K on the intersection of East Exchange

Street and Arlington Street. The informant further stated that the buyer would arrive in a gray

Chrysler LeBaron to purchase drugs from a black male in the parking lot. Acting on this

information, Detective Schmidt initiated surveillance of the Circle K. During this surveillance,

he witnessed a gray LeBaron pull into the parking lot and park next to a gas pump. No one

emerged from the car. Shortly thereafter, a gold Mercedes pulled into the parking lot behind the

LeBaron. A black male, whom Detective Schmidt identified in court as McCoy, exited the

Mercedes and walked to the front passenger window of the LeBaron. There, McCoy engaged in

a hand-to-hand transaction with the front-seat passenger. Immediately thereafter, the LeBaron

pulled out of the parking lot, and Detective Schmidt followed the LeBaron and called for

uniformed officers to stop the car.
                                                5


       {¶11} Detective Schmidt identified State’s Exhibit 1 as a map of the Circle K and the

surrounding area. He identified the yellow outlined portion of the map as Circle K and the

purple outlined portion of the map as Hope Academy, a chartered elementary school. Detective

Schmidt stated that a blue half circle on the map represented the area of one thousand feet around

Circle K, within which Hope Academy was located. Further, Detective Schmidt testified that he

measured the distance from the Circle K to Hope Academy, which was 372 feet.

       {¶12} Detective Danzy of the SNUD unit testified that, on August 31, 2009, he received

information from Detective Schmidt regarding a drug transaction that occurred in the parking lot

of Circle K. Detective Schmidt requested that Detective Danzy stop a LeBaron that had left

Circle K. As Detective Danzy approached the vehicle, he noticed the front passenger making

movements as Danzy initiated the overhead lights and siren. He approached the passenger side

of the vehicle. Ms. Williams was there seated, and in plain view at her feet was a folded up

piece of paper with some powder inside of and around it. Detective Danzy told Ms. Williams to

exit the vehicle, placed her under arrest, and removed the paper and powder. After Detective

Danzy recited to Ms. Williams her Miranda rights, she told him that she had bought heroin for

$80.00 from a male named Shawn at the gas station. Detective Danzy identified State’s Exhibit

4 as the powder substance that he tagged into evidence.

       {¶13} Detective Williams of the SNUD unit testified that, on August 31, 2009, he was

radioed to make a stop on an individual named Shawn McCoy, who was involved in a drug

transaction. Detective Williams arrested McCoy outside of a vehicle parked at the Circle K.

Detective Williams searched McCoy and found $200.00 on his person. Detective Williams

identified State’s Exhibit 5 as the money that he found on McCoy.
                                                 6


       {¶14} R. Michael Velten, who works at the Ohio Bureau of Criminal Identification and

Investigation and in the City of Akron’s Drug Identification Unit, testified that he tested the

powder that Detective Danzy tagged into evidence, which he identified as State’s Exhibit 4.

Based upon his testing, he found .13 grams of the substance, which he reported contained heroin.

       {¶15} After eliciting testimony from the above witnesses, the State rested. Viewing the

evidence in the light most favorable to the prosecution, we conclude that the State produced

sufficient evidence to support the determination that McCoy knowingly sold heroin to Ms.

Williams on August 31, 2009 for $80.00, and that such activity took place within the vicinity of a

school. Accordingly, McCoy’s first assignment of error, as it pertains to the sufficiency of the

evidence, is overruled.

Manifest Weight of the Evidence

       {¶16} McCoy further argues that his conviction was against the manifest weight of the

evidence. When a defendant asserts that his conviction is against the manifest weight of the

evidence,

       “an appellate court must review 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.” State v. Otten (1986), 33 Ohio App.3d 339,
       340.

       {¶17} In making this determination, this Court is mindful that “[e]valuating the evidence

and assessing credibility are primarily for the trier of fact.” State v. Shue (1994), 97 Ohio

App.3d 459, 466, citing Ostendorf-Morris Co. v. Slyman (1982), 6 Ohio App.3d 46, 47 and Crull

v. Maple Park Body Shop (1987), 36 Ohio App.3d 153, 154.

       {¶18} Here, McCoy cites to inconsistencies in the testimony of the above individuals

and himself in support of his argument. McCoy testified that, on the afternoon of August 31,
                                                  7


2009, he drove his children’s mother’s car to Circle K to get gasoline and a soft drink. Upon

arriving at Circle K, he walked toward the store, but heard someone call his name. He turned

and saw Ms. Williams’ son, who was a neighbor of his, in the backseat of a car. He walked to

the car, opened the back passenger’s door, and leaned in to converse with her son. At no time

that day had he previously spoken to Ms. Williams, and he had no drugs on his person and

engaged in no sale of drugs to her. Instead, after greeting the occupants of the car and having a

brief discussion with her son, he exited the vehicle, closed the door and went inside the store to

make his purchases.      Thereafter, while in the car ready to leave the parking lot, he was

surrounded by officers and placed under arrest.

       {¶19} Although inconsistencies existed in the testimony of the State’s and the defense

witnesses, “the jury is free to believe all, part, or none of the testimony of each witness[.]” State

v. Cross, 9th Dist. No. 25487, 2011-Ohio-3250, at ¶35, quoting Prince v. Jordan, 9th Dist. No.

04CA008423, 2004-Ohio-7184, at ¶35, citing State v. Jackson (1993), 86 Ohio App.3d 29, 33.

We cannot say the jury’s resolution of these inconsistencies was unreasonable. See State v.

Peasley, 9th Dist. No. 25062, 2010-Ohio-4333, at ¶18 citing State v. Morgan, 9th Dist. No.

22848, 2006-Ohio-3921, at ¶35 (“A conviction is not against the manifest weight because the

jury chose to credit the State’s version of events.”).

       {¶20} After reviewing the entire record, weighing the inferences and examining the

credibility of witnesses, we cannot say that the jury clearly lost its way and created a manifest

miscarriage of justice in finding McCoy guilty of trafficking in heroin.

       {¶21} Accordingly, McCoy’s first assignment of error, as it pertains to the manifest

weight of the evidence, is overruled.
                                                 8


                                                III.

       {¶22} McCoy’s assignment of error is overruled. The judgment of the Summit County

Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.



                                                       CARLA MOORE
                                                       FOR THE COURT

CARR, P. J.
DICKINSON, J.
CONCUR

APPEARANCES:

RHONDA L. KOTNIK, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
