[Cite as State v. Mackey, 2014-Ohio-2288.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                :      JUDGES:
                                             :      Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                   :      Hon. Sheila G. Farmer, J.
                                             :      Hon. Patricia A. Delaney, J.
-vs-                                         :
                                             :
JASON E. MACKEY                              :      Case No. 13-CA-94
                                             :
        Defendant-Appellant                  :      OPINION




CHARACTER OF PROCEEDING:                            Appeal from the Court of Common
                                                    Pleas, Case No. 13CR00217




JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   May 28, 2014




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

CHRISTOPHER A REAMER                                WILLIAM T. CRAMER
20 South Second Street                              470 Olde Worthington Road
4th Floor                                           Suite 200
Newark, OH 43055                                    Westerville, OH 43082
Licking County, Case No. 13-CA-94                                                      2

Farmer, J.

       {¶1}   On May 2, 2013, the Licking County Grand Jury indicted appellant, Jason

Mackey, on three counts of trafficking drugs in violation of R.C. 2925.03, one count of

drug possession in violation of R.C. 2925.11, and one count of having a weapon while

under disability in violation of R.C. 2923.13. Said charges arose from three controlled

drug buys using confidential informants and the subsequent search of appellant's

residence.

       {¶2}   A jury trial on the drug charges commenced on October 15, 2013. While

the jury was deliberating, the weapons charge was tried to the bench. The jury found

appellant guilty of all the drug counts save for one count of trafficking in cocaine. The

trial court found appellant guilty of the weapons charge.      By judgment entry filed

October 16, 2013, the trial court sentenced appellant to an aggregate term of eight and

a half years in prison.

       {¶3}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                            I

       {¶4}   "THE TRIAL COURT ERRED BY CONSIDERING HEARSAY FROM A

JAIL TELEPHONE CALL DISCUSSING THE FIREARM."

                                           II

       {¶5}   "APPELLANT WAS DEPRIVED OF HIS RIGHTS TO DUE PROCESS AS

GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION AND THE OHIO CONSTITUTION, ARTICLE I, SECTION 16,

BECAUSE       THERE       WAS   INSUFFICIENT      EVIDENCE       TO    SUPPORT       HIS
Licking County, Case No. 13-CA-94                                                            3


CONVICTIONS FOR HAVING A WEAPON UNDER DISABILITY AND POSSESSING

COCAINE."

                                                III

         {¶6}     "THE TRIAL COURT'S FINDING THAT APPELLANT WAS GUILTY OF

HAVING A WEAPON UNDER DISABILITY AND THE JURY'S FINDING THAT

APPELLANT WAS GUILTY OF POSSESSING COCAINE WERE NOT SUPPORTED

BY THE WEIGHT OF EVIDENCE."

                                                 I

         {¶7}     Appellant claims the trial court erred in permitting evidence of a discussion

from a jail telephone call as it constituted hearsay. We disagree.

         {¶8}     The telephone conversation involved a discussion on the firearm

discovered in appellant's residence. The evidence was presented during the bench trial

on the weapons charge. We must presume, in reviewing a bench trial, that the trial

court considered nothing but relevant and competent evidence in reaching its verdict.

"The presumption may be overcome only by an affirmative showing to the contrary by

the appellant." State v. Wiles, 59 Ohio St.3d 71 (1991). In addition, no objection was

made to the complained of evidence. An error not raised in the trial court must be plain

error for an appellate court to reverse. State v. Long, 53 Ohio St.2d 91 (1978); Crim.R.

52(B). In order to prevail under a plain error analysis, appellant bears the burden of

demonstrating that the outcome of the trial clearly would have been different but for the

error.    Long.     Notice of plain error "is to be taken with the utmost caution, under

exceptional circumstances and only to prevent a manifest miscarriage of justice." Id. at

paragraph three of the syllabus.
Licking County, Case No. 13-CA-94                                                          4


       {¶9}     "Hearsay" is defined as "a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence to prove the truth of

the matter asserted."      Evid.R. 801(C).    Statements which are not hearsay include

admissions by party-opponent and in particular, are "statement[s] of which the party has

manifested an adoption or belief in its truth." Evid.R. 801(D)(2)(b).

       {¶10} Newark Police Detective Doug Bline testified to the following (T. at 305):



                Q. Detective Bline, do you recognize the voice on that call, the male

       voice?

                A. Yes, it's Mr. Mackey.

                Q. Okay. And during that call - - Do you remember this specific

       call?

                A. Yes.

                Q. Was a question posed to the Defendant about the police being

       able to pin that gun on him?

                A. Yes.

                Q. And how did he react?

                A. There was really no - - it wasn't, like, "It wasn't my gun." There

       was just kind of a void. There was no real answer to the question.



       {¶11} On cross-examination, Detective Bline acknowledged that appellant never

admitted the firearm was his. T. at 307-308.
Licking County, Case No. 13-CA-94                                                         5


       {¶12} It is appellant's position that his silence was not an adoptive admission

and therefore should have been excluded. We disagree that it was anything but silence

to an ambiguous question posed to appellant. Further, given Detective Bline's cross-

examination testimony that appellant never admitted that the firearm was his, we find no

prejudicial error to appellant and no manifest miscarriage of justice.

       {¶13} Assignment of Error I is denied.

                                           II, III

       {¶14} Appellant claims his convictions on the weapons count and the

possession count were against the sufficiency and manifest weight of the evidence. We

disagree.

       {¶15} On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction. State

v. Jenks, 61 Ohio St.3d 259 (1991). "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." Jenks at

paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307 (1979). On

review for manifest weight, a reviewing court is to 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 jury clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed and

a new trial ordered." State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). See

also, State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. The granting of a new trial
Licking County, Case No. 13-CA-94                                                     6


"should be exercised only in the exceptional case in which the evidence weighs heavily

against the conviction." Martin at 175.

      {¶16} Circumstantial evidence is that which can be "inferred from reasonably

and justifiably connected facts." State v. Fairbanks, 32 Ohio St.2d 34 (1972), paragraph

five of the syllabus. "[C]ircumstantial evidence may be more certain, satisfying and

persuasive than direct evidence." State v. Richey, 64 Ohio St.3d 353, 1992-Ohio-44. It

is to be given the same weight and deference as direct evidence. Jenks, supra.

      {¶17} Appellant was convicted of having a weapon while under disability in

violation of R.C. 2923.13(A)(2) which states:



             (A) Unless relieved from disability as provided in section 2923.14 of

      the Revised Code, no person shall knowingly acquire, have, carry, or use

      any firearm or dangerous ordnance, if any of the following apply:

             (2) The person is under indictment for or has been convicted of any

      felony offense of violence or has been adjudicated a delinquent child for

      the commission of an offense that, if committed by an adult, would have

      been a felony offense of violence.



      {¶18} Appellant was also convicted of possessing cocaine in violation of R.C.

2925.11(A) and (C)(4)(a) which state:



             (A) No person shall knowingly obtain, possess, or use a controlled

      substance or a controlled substance analog.
Licking County, Case No. 13-CA-94                                                      7


             (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 possession of cocaine. The penalty

      for the offense shall be determined as follows:

             (a) Except as otherwise provided in division (C)(4)(b), (c), (d), (e),

      or (f) of this section, possession of cocaine is a felony of the fifth degree,

      and division (B) of section 2929.13 of the Revised Code applies in

      determining whether to impose a prison term on the offender.



      {¶19} Appellant stipulated that he had a prior felony offense that precluded him

from possessing a weapon. T. at 301. Detective Bline's testimony as cited above was

the only testimony presented on the location of the weapon. T. at 305.

      {¶20} Detective Bline testified he was outside appellant's residence preparing to

execute the arrest warrant when he observed appellant stand up from a chair, walk past

the couch to the entrance of the residence, and slam the door on the advancing arrest

team. T. at 87-88. They pounded on the door and appellant came out. T. at 88, The

team went in and checked the residence for other individuals. Inside they found Lori

Amspoker.    T. at 88-89.    Detective Bline then obtained a search warrant for the

residence based upon the observations of the arrest team. T. at 89. Upon searching

the residence, digital scales and razor blades with cocaine residue and a bong were

discovered. T. at 91. Clothing found in the residence indicated that a man lived there.
Licking County, Case No. 13-CA-94                                                         8


T. at 91-92. A firearm was discovered on the floor directly in front of the couch. T. at

309.

       {¶21} Jamie Wider testified appellant was living at the residence with her and

her daughter, and they were both on the lease.         T. at 313, 316.     She claims the

discovered weapon belonged to her. T. at 315. She kept the firearm in her bedroom or

underneath the couch when she slept or left the residence. T. at 316, 319. Appellant

had free access to the home. Only one print was found on the firearm and it did not

belong to appellant. T. at 324.

       {¶22} State's Exhibits 10(C) and 14 depict the firearm and the couch area. The

firearm was found next to the pen as referenced in State's Exhibit 14.

       {¶23} The issue of credibility of Ms. Wider and Detective Bline is one to be

resolved by the trier of fact. The weight to be given to the evidence and the credibility of

the witnesses are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d 182

(1990). The trier of fact "has the best opportunity to view the demeanor, attitude, and

credibility of each witness, something that does not translate well on the written page."

Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260.

       {¶24} The firearm was found out in the open, in an area where appellant was

seen resting and moving about. Appellant was living in the residence and had free

access to all parts of the residence and the items in it. The proximity to where appellant

was observed establishes that he had a weapon within his control.

       {¶25} Upon review, we find sufficient credible evidence to support appellant's

conviction on having a weapon while under disability, and no manifest miscarriage of

justice.
Licking County, Case No. 13-CA-94                                                       9


       {¶26} As for the possession of cocaine conviction, there were photographs of

the kitchen wherein digital scales and razor blades containing cocaine residue were

discovered. T. at 91; State's Exhibits 10(E) and (F). Appellant was a resident of the

home. The residue was tested and determined to be crack cocaine. T. at 196-197. No

fingerprints were found on the scale.       Id.   Appellant was convicted on one of the

trafficking in cocaine counts, and he was a resident of the home wherein digital scales,

razor blades, cocaine residue, and baggies were found.

       {¶27} Upon     review,   we   find    sufficiency   credible   evidence,   although

circumstantial, to support appellant's conviction for possessing cocaine, and no manifest

miscarriage of justice.

       {¶28} Assignments of Error II and III are denied.

       {¶29} The judgment of the Court of Common Pleas of Licking County, Ohio is

hereby affirmed.

By Farmer, J.

Hoffman, P.J. and

Delaney, J. concur.



SGF/sg 411
