[Cite as State v. Graham, 2016-Ohio-3210.]


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

STATE OF OHIO                                       C.A. No.      14CA0084-M

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
HEATHER GRAHAM                                      COURT OF COMMON PLEAS
                                                    COUNTY OF MEDINA, OHIO
        Appellant                                   CASE No.   13CR0748

                                DECISION AND JOURNAL ENTRY

Dated: May 31, 2016



        SCHAFER, Judge.

        {¶1}    Defendant-Appellant, Heather Graham, appeals from the judgment of the Medina

County Court of Common Pleas convicting her of multiple drug-related offenses. For the

reasons set forth below, we affirm.

                                               I.

        {¶2}    Graham moved to Medina, Ohio from Washington, D.C. at some point in 2013.

Graham was a heroin user and occasionally attended Narcotics Anonymous meetings in Medina.

Graham met and befriended B.J., a 17-year-old girl, at one such meeting.

        {¶3}    On May 29, 2013, Graham texted B.J. asking if she wanted to hang out and get

something to eat. B.J. replied yes. Graham then rented a car from Hertz and picked B.J. up from

a local hair salon at around 1:00 p.m. Graham and B.J. then picked up Jason Gangle, one of

B.J.’s friends and a known drug supplier, from an apartment complex in Medina. The three of

them proceeded to drive to Cleveland to purchase heroin from one of Gangle’s drug contacts.
                                              2


       {¶4}   Upon arriving in Cleveland, Graham purchased a gram and a half of heroin for

$220.00 from Gangle’s contact. The three of them then drove to a nearby gas station, where

Graham and Gangle both shot up some of the heroin, leaving a little bit over a gram for future

use. B.J. did not partake in any drug use at this time. Because Gangle and Graham were both

high from the heroin, B.J. drove everybody back to Medina. B.J. dropped Gangle off at his

apartment and left with Graham.

       {¶5}   Graham and B.J. made their way to Walmart around 4:30 p.m. While at Walmart,

B.J. and Graham ran into B.J.’s grandmother, Rita Miktuk, who was there shopping. Miktuk

observed that Graham appeared as if she were suffering from terrible allergies because Graham’s

eyes were unfocused and were noticeably red in color. Later that night, B.J.’s mother, Darlene,

called B.J. at around 8:30 p.m. B.J. told her mother that she was going to the mall with Graham

and would be home by curfew. At around 10:45 p.m., Graham and B.J. returned the rental car to

Hertz and called for a taxi to take them to their respective homes. The taxi driver, Kenneth

Kirstein, recognized B.J. from Narcotics Anonymous meetings.         Kirstein testified that he

dropped B.J. off at her home around 11:30 p.m. However, Kirstein was asked to wait outside in

the taxi for about 10 to 15 minutes before driving Graham home because the girls needed to go

inside to “split up their purchases” from Walmart. Graham eventually returned to the taxi and

was driven home.

       {¶6}   At 5:00 a.m. the following morning, B.J.’s mother awoke to get ready for work.

She observed that B.J.’s bedroom door was open with the lights on, which she thought was

unusual. Upon entering B.J.’s bedroom, Darlene discovered B.J. unconscious on her bed and

blue in the face. Paramedics were immediately summoned and B.J. was transported to the

hospital, where she was pronounced dead. Suspecting that B.J. had overdosed on drugs, the
                                                   3


police searched B.J.’s bedroom and the entire house, but discovered no trace of drugs or drug

paraphernalia. The police also searched B.J.’s phone wherein they discovered a number of

recent text messages from Graham referencing drugs. The cause of B.J.’s death was later

confirmed to be the result of a heroin overdose. The police contacted Graham and spoke with

her about the events leading up to B.J.’s death.

       {¶7}     The Medina County Grand Jury indicted Graham on: (1) one count of corrupting

another with drugs in violation of R.C. 2925.02(A)(4)(a), a second-degree felony; (2) one count

of complicity to commit trafficking in heroin in violation of R.C. 2923.03(A)(2), 2925.03(A)(2),

a fifth-degree felony; and (3) one count of conspiracy to commit trafficking in heroin in violation

of R.C. 2923.01(A)(1), 2925.03(A)(2), a first-degree misdemeanor. The matter proceeded to a

bench trial.   At the close of the State’s case-in-chief, Graham made a general motion for

judgment of acquittal pursuant to Crim.R. 29, which the trial court denied. At the close of all

evidence, the trial court took the matter under advisement and ultimately found Graham guilty of

all counts within the indictment. The trial court sentenced Graham to a three-year term of

imprisonment.

       {¶8}     Graham filed a timely appeal, presenting one assignment of error for our review.

                                                   II.

                                       Assignment of Error

       The evidence was insufficient to support the trial court’s verdict of “guilty”
       as to all three counts of the indictment, and the defendant’s convictions as to
       all three counts were against the manifest weight of the evidence.

       {¶9}     In her sole assignment of error, Graham argues that her judgment of conviction on

all three counts in the indictment was unsupported by both sufficient evidence and the manifest

weight of the evidence. We disagree.
                                                 4


                                       A. Standard of Review

       {¶10} “‘We review a denial of a defendant’s Crim.R. 29 motion for acquittal by

assessing the sufficiency of the State’s evidence.’” State v. Smith, 9th Dist. Summit No. 27389,

2015-Ohio-2842, ¶ 17, quoting State v. Frashuer, 9th Dist. Summit No. 24769, 2010-Ohio-634,

¶ 33. A sufficiency challenge of a criminal conviction presents a question of law, which we

review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). In carrying out this review,

our “function * * * 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, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.

After such an examination and taking the evidence in the light most favorable to the prosecution,

we must decide whether “any rational trier of fact could have found the essential elements of the

crime proven beyond a reasonable doubt.” Id. Although we conduct de novo review when

considering a sufficiency of the evidence challenge, “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, C-120751, 2013-Ohio-4775, ¶ 33.

       {¶11} A sufficiency challenge      is   legally   distinct   from    a    manifest    weight

challenge. Thompkins at 387. Accordingly, when applying the manifest weight standard, we are

required to consider the whole record, “weigh the evidence and all reasonable inferences,

consider the credibility of the witnesses and determine whether, in resolving conflicts in the

evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice

that the conviction must be reversed and a new trial ordered.” State v. Otten, 33 Ohio App.3d

339, 340 (9th Dist.1986). Courts are cautioned to only reverse a conviction on manifest weight

grounds “in exceptional cases,” State v. Carson, 9th Dist. Summit No. 26900, 2013–Ohio–5785,
                                                     5


¶   32,     citing Otten at     340,   where   the       evidence   “weighs   heavily   against   the

conviction,” Thompkins at 387.

          {¶12} This matter implicates Graham’s convictions for corrupting another with drugs in

violation of R.C. 2925.02(A)(4)(a), complicity to commit trafficking in heroin in violation of

R.C. 2923.03(A)(2) and R.C. 2925.03(A)(2), and conspiracy to commit trafficking in heroin in

violation of R.C. 2923.01(A)(1) and R.C. 2925.03(A)(2). We address each offense in turn.

                              B. Corrupting Another With Drugs Conviction

          {¶13} R.C. 2925.02(A)(4)(a) pertinently provides that “[n]o person shall knowingly * *

* [b]y any means, * * * [fu]rnish or administer a controlled substance to a juvenile who is at least

two years the offender's junior, when the offender knows the age of the juvenile or is reckless in

that regard[.]” “A person acts knowingly, regardless of his purpose, when he is aware that his

conduct will probably cause a certain result or will probably be of a certain nature. A person has

knowledge of circumstances when he is aware that such circumstances probably exist.” Former

R.C. 2901.22(B). Former R.C. 2901.22(C) stated that “[a] person acts recklessly when, with

heedless indifference to the consequences, he perversely disregards a known risk that his conduct

is likely to cause a certain result or is likely to be of a certain nature.”1 Pursuant to R.C.

2925.01(A), a controlled substance for the purposes of R.C. 2925.02 is defined as “a drug,

compound, mixture, preparation or substance included in schedule I, II, III, IV or V.” R.C.

3719.01(C). Heroin is a schedule I drug. R.C. 3719.41(B)(11).




1
  2014 Am.S.B. No. 361, effective March 23, 2015, amended R.C. 2901.21’s language regarding
statutes without a listed mental state and R.C. 2901.22’s definition of mental states. Since the
charged offenses in this matter occurred before Am.S.B. 361’s effective date, we rely on the
previous versions of the statutory language.
                                                6


       {¶14} Graham challenges her corrupting another with drugs convictions on two grounds:

(1) that the State failed to offer sufficient evidence to prove that Graham knew that B.J. was a

juvenile, or was reckless in that regard; and (2) that the State presented insufficient evidence to

prove beyond a reasonable doubt that Graham “knowingly furnished or administered” heroin to

B.J. As to Graham’s state of mind toward B.J.’s age, a review of the record reveals a number of

factors that, when viewed in the aggregate, lead us to reach the conclusion that the State met its

burden of proof. First, Officer Josh Grusendorf of the Medina Police Department testified that

he met and spoke with Graham on multiple occasions following B.J.’s death. Officer Grusendorf

testified that Graham told him that she first met B.J. at a Narcotics Anonymous meeting in

Medina. Graham also told Officer Grusendorf that she was aware that several attendees of the

Narcotics Anonymous meetings in Medina were very young, including some who were still in

middle school. Additionally, Officer Grusendorf testified that he searched B.J.’s phone as part of

his investigation into B.J.’s death and that he discovered a text message from May 28, 2013

where Graham asked B.J. if she still attended school. B.J. replied back that she had already

graduated and no longer attended school.

       {¶15} Secondly, B.J.’s grandmother, Rita Miktuk, testified that she ran into B.J. and

Graham at Walmart on May 29. 2013 at roughly 4:30 p.m. Miktuk testified that Graham

commented on her youthful appearance after she was introduced as B.J.’s grandmother.

Specifically, Graham told Miktuk that she appeared as if she was only 40 years old. Miktuk

responded by telling Graham her actual age and the age of her daughter, who is B.J.’s mother.

From this information, we determine that it was reasonable for the trier of fact to infer that

Graham could reasonably deduce B.J.’s age range.
                                                7


       {¶16} Lastly, Officer Grusendorf testified that B.J. sent Graham a text message at 11:26

p.m. on the night of May 29, 2013. Officer Grusendorf testified that this text was sent while

Graham and B.J. were riding home in the taxi. The text message that B.J. sent to Graham reads,

“Can u give me some s[---]? I’ll give u money tomorrow.” Graham then responded, “How do

you expect me to do that? You want me to pull it out in front of [the taxi driver]?” Officer

Grusendorf testified that when he asked Graham about this specific text message, Graham

contended that B.J. was referring to cigarettes, not heroin. As cigarettes are not illegal for

individuals over the age of 18, see R.C. 2151.87; R.C. 2927.02, Graham’s reply to B.J.’s text

message indicating reluctance to provide B.J. with “some s[---]” in the presence of the taxi driver

denotes Graham’s knowledge that B.J. was under the age of 18. We conclude that this evidence,

when viewed together, was sufficient to prove that Graham was at least reckless with regard to

knowing B.J.’s true age.

       {¶17} With regard to whether Graham “knowingly furnished or administered” heroin to

B.J., we again determine that the State presented sufficient evidence on this point. Gangle

testified at trial that he, Graham, and B.J. all drove to Cleveland on May 29, 2013 in order to buy

heroin from his contact, which they did. Gangle also testified that Graham paid for the heroin

and that he and Graham then shot up heroin at a nearby gas station. Gangle stated that B.J. did

not partake in shooting up heroin while they were together in Cleveland. Gangle further testified

that B.J. drove everybody back to Medina because she was the only person sober enough to do

so. Miktuk testified that when she encountered Graham and B.J. at Walmart, Graham’s eyes

appeared to be unfocused and red, whereas B.J. did not appear to be high. The taxi driver who

drove Graham and B.J. home around 11:15 p.m. testified that neither girl appeared to be under

the influence of drugs.
                                                8


       {¶18} Moreover, Officer Grusendorf testified that while the girls were being driven

home in the taxi, B.J. texted Graham asking her to provide her with “some s[---],” which, in

context, Officer Grusendorf understood to mean heroin. Officer Grusendorf further testified that

Graham’s text message reply to B.J. showed Graham was reluctant to provide B.J. with “some

s[---]” in front of the taxi driver. The taxi driver testified that when he dropped B.J. off at her

home, B.J. and Graham went around the corner of the house and out of his sight for roughly 10

to 15 minutes in order to “split up their purchases from the store.” That was the last time

anybody other than Graham saw B.J. alive, as she was discovered lifeless at 5:00 a.m. in her

bedroom the following morning. Both Officer Grusendorf and Officer Matthew Martinain of the

Medina Police Department testified that they searched B.J.’s bedroom on the day of B.J.’s death

and discovered no trace of drugs or drug paraphernalia.

       {¶19} After a thorough review of the record, we determine that Gangle, Miktuk, and the

taxi driver’s testimony, when taken together, establish a timeline showing that B.J. had not taken

drugs and was not under the influence prior to 11:15 p.m. Additionally, Officer Grusendorf’s

testimony regarding B.J.’s text message to Graham wherein B.J. asked for “some s[---]” in

exchange for future payment establishes that B.J. wanted heroin and knew she could procure it

from Graham. It was reasonable for the trier of fact to infer from Graham’s response to B.J.’s

text message that Graham not only had heroin on her person, but that she was willing to provide

B.J. with heroin once they were out of the taxi driver’s presence. Lastly, from the taxi driver’s

testimony that Graham and B.J. left his presence for 10 to 15 minutes, one could reasonably infer

that Graham was either “furnish[ing] or administer[ing]” heroin to B.J. during this time slot,

especially since B.J. was found dead roughly five hours later with no trace of drug paraphernalia
                                                 9


present in her bedroom or house. Thus, we determine that the trial court did not err in denying

Graham’s Crim.R. 29 motion on the corrupting another with drugs offense.

       {¶20} Graham further contends that this conviction was against the manifest weight of

the evidence. Specifically, Graham argues that she assumed that B.J. was over the age of 18

based upon B.J.’s appearance and the text message she received from B.J. stating that she had

graduated from school. However, the trial judge, sitting as the trier of fact in this matter,

apparently accepted the State’s theory, which was predicated upon the testimony of Officer

Grusendorf and Rita Miktuk, that Graham either knew B.J.’s actual age, or was reckless in that

regard. The testimony of the State’s witnesses, if believed, would support the conclusion that

Graham at the very least was reckless with regard to B.J.’s true age.

       {¶21} Additionally, Graham argues that Gangle’s testimony was contradictory and thus

not credible, especially considering the fact that he avoided the authorities in the wake of B.J.’s

death. Rather, Graham argues that she was more credible, especially considering the fact that

she fully cooperated with law enforcement following B.J.’s death, that her statements to the

police regarding her activities on May 29, 2013 were verified, that a drug test administered on

May 30, 2013 came back negative for heroin, and because she is a decorated military veteran.

       {¶22} However, after a thorough review of the record, we cannot say that this is the

exceptional case where the evidence weighs heavily against conviction. Although there were

discrepancies in Gangle’s testimony, the trier of fact “‘is free to believe all, part, or none of the

testimony of each witness.’” State v. Clark, 9th Dist. Wayne No. 14AP0002, 2015-Ohio-2978, ¶

24, quoting Prince v. Jordan, 9th Dist. Lorain No. 04CA008423, 2004-Ohio-7184, ¶ 35.

Furthermore, a verdict is not against the manifest weight of the evidence merely because the trier

of fact found the State’s witnesses to be credible. State v. Andrews, 9th Dist. Summit No. 25114,
                                                10


2010-Ohio-6126, ¶ 28. Under these circumstances, where there was testimony that Graham

purchased heroin and that B.J. later asked Graham to sell her “some s[---]” in a text message just

hours before her death, we cannot say that the trier of fact clearly lost its way in convicting

Graham of corrupting another with drugs.

                            C. Conspiracy and Complicity Convictions

       {¶23} Graham challenges her complicity and conspiracy convictions solely on the

grounds that the State failed to present sufficient evidence that she provided Graham with heroin.

As such, we decline to address the elements of the respective offenses that do not pertain to

Graham’s argument.

       {¶24} R.C. 2925.03(A)(2) provides in pertinent part that “[n]o person shall knowingly *

* * [p]repare 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.” R.C. 2923.01(A)(1), Ohio’s

conspiracy statute, relevantly states that “[n]o person, with purpose to commit or to promote or

facilitate the commission of * * * a felony drug trafficking * * * shall * * * [w]ith another person

or persons, plan or aid in planning the commission of any of the specified offenses[.]”

       {¶25}    “Once the actual commission of the offense at issue occurs, the crime of

complicity arises.” State v. Hoang, 9th Dist. Medina No. 09CA0061-M, 2010–Ohio–6054, ¶ 9.

The complicity statute provides that “[n]o person, acting with the kind of culpability required for

the commission of an offense, shall * * * [a]id or abet another in committing the offense[.]”

R.C. 2923.03(A)(2).
                                                11


       {¶26} “To support a conviction for complicity by aiding and abetting, the evidence must

show that the defendant supported, assisted, encouraged, cooperated with, advised, or incited the

principal in the commission of the crime, and that the defendant shared the criminal intent of the

principal. Such intent may be inferred from the circumstances surrounding the crime.” State v.

Johnson, 93 Ohio St.3d 240 (2001), syllabus. Evidence of aiding and abetting may be shown by

either direct or circumstantial evidence, and participation in criminal intent “may be inferred

from presence, companionship, and conduct before and after the offense is committed.” State v.

Lett, 160 Ohio App.3d 46, 2005–Ohio–1308, ¶ 29 (8th Dist.). “Aiding and abetting may also be

established by overt acts of assistance such as driving a getaway car or serving as a lookout.” Id.

However, “the mere presence of an accused at the scene of a crime is not sufficient to prove, in

and of itself, that the accused was an aider and abettor.” State v. Widner, 69 Ohio St.2d 267, 269

(1982). “[T]here must be some level of active participation by way of providing assistance or

encouragement.” State v. Nievas, 121 Ohio App.3d 451, 456 (8th Dist.1997). “‘Mere approval

or acquiescence, without expressed concurrence or the doing of something to contribute to an

unlawful act, is not an aiding or abetting of the act.’” Id., quoting State v. Sims, 10 Ohio App.3d

56, 59 (8th Dist.1983).

       {¶27} Graham challenges her conspiracy and complicity convictions on the basis that

the State offered insufficient evidence to show that she “purposely planned or aided in planning”

a heroin trafficking offense, or “knowingly aided and abetted another in committing” a

trafficking in heroin offense. Specifically, the crux of Graham’s argument as it relates to both

the conspiracy and the complicity convictions is that the State failed to prove that Graham

provided B.J. with heroin. However, for the same reasons set forth in our analysis above, we
                                               12


determine that the State presented sufficient evidence to support both the conspiracy and

complicity convictions.

       {¶28} Again, Gangle, Miktuk, and the taxi driver’s testimony, when taken together,

established a timeline that, if accepted by the trier of fact, demonstrate that B.J. had not taken

drugs and was not under the influence prior to 11:15 p.m. Moreover, Officer Grusendorf’s

testimony regarding B.J.’s text message conversation with Graham on the night of May 29, 2013

illustrates that B.J. wanted Graham to sell her heroin and that Graham showed a willingness to

give B.J. some heroin once they were outside of the taxi driver’s presence. The taxi driver

testified that Graham and B.J. left his presence for roughly 10 to 15 minutes before Graham

returned to the taxi and was driven home, thus showing that Graham had the opportunity to

provide B.J. with heroin. Lastly, two officers from the Medina Police Department testified that a

search of B.J.’s bedroom and of house following B.J.’s overdose revealed no trace of either

drugs or drug paraphernalia, which signifies that B.J. used the heroin that caused her overdose

prior to entering her house on the night of May 29, 2013. Therefore, we conclude that the trial

court did not err in denying Graham’s Crim.R. 29 motion on the conspiracy and complicity

charges.

       {¶29} While Graham additionally argues that her convictions for conspiracy and

complicity were against the manifest weight of the evidence, her argument largely mirrors the

argument that she made regarding her corrupting another with drugs conviction. As such, for the

same reasons articulated above, we determine that Graham’s convictions were not against the

manifest weight of the evidence, as we cannot say that the trier of fact clearly lost its way in

convicting Graham of conspiracy and complicity.

       {¶30} Accordingly, Graham’s assignment of error is overruled.
                                                13


                                                III.

       {¶31} Graham’s sole assignment of error is overruled and the judgment of the Medina

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 Medina, 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(C). 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.




                                                       JULIE A. SCHAFER
                                                       FOR THE COURT



CARR, P. J.
HENSAL, J.
CONCUR.
                                         14



APPEARANCES:

JOSEPH F. SALZGEBER, Attorney at Law, for Appellant.

DEAN HOLMAN, Prosecuting Attorney, and MATTHEW A. KERN, Assistant Prosecuting
Attorney, for Appellee.
