[Cite as State v. Knox, 2013-Ohio-1993.]



                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99081



                                      STATE OF OHIO

                                                   PLAINTIFF-APPELLEE

                                             vs.

                                      LARRY D. KNOX
                                                   DEFENDANT-APPELLANT




                                   JUDGMENT:
                           AFFIRMED IN PART, REVERSED
                             IN PART, AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-565542

        BEFORE: Stewart, A.J., Kilbane, J., and Blackmon, J.

        RELEASED AND JOURNALIZED:                  May 16, 2013
ATTORNEY FOR APPELLANT

Kelly A. Gallagher
P.O. Box 306
Avon Lake, OH 44012


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Denise J. Salerno
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
MELODY J. STEWART, A.J.:

       {¶1} The court found defendant-appellant Larry Knox guilty of two counts of drug

trafficking and two counts of drug possession. The two assignments of error raised on

appeal challenge the weight of the evidence supporting both the trafficking and

possession counts.

       {¶2} The manifest weight of the evidence standard of review requires us to 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, 33 Ohio App.3d

339, 340, 515 N.E.2d 1009 (9th Dist.1986). The use of the word “manifest” means that

the trier of fact’s decision must be plainly or obviously contrary to all of the evidence.

This is a difficult burden for an appellant to overcome because the resolution of factual

issues resides with the trier of fact, State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212

(1967), paragraph one of the syllabus, and the trier of fact has the authority to “believe or

disbelieve any witness or accept part of what a witness says and reject the rest.” State v.

Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964). For this reason, it is only the “rare”

case in which the trier of fact’s verdict will be overturned as being against the manifest
weight of the evidence. State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st

Dist.1983).

      {¶3} The evidence showed that police officers witnessed a truck, driven by Knox,

fail to signal a turn. They pulled alongside Knox’s truck, but before they could take any

action, Knox “jumped” out and went to the back of the truck. When he did so, the

officers noticed that the steering column of the truck had been peeled. After running a

license check, they learned that Knox had an outstanding warrant. Knox was arrested

and the contents of the truck were inventoried prior to it being towed. The officers found

what they described as a small bag containing some dirty laundry and three,

orange-colored, prescription pill bottles. The three pill bottles contained a total of four

different drugs. As relevant here, there were 60 unit doses of Clonazepam (brand name

“Klonopin”) and 5.5 unit doses of Alprazolam (brand name “Xanax”), both schedule IV

narcotics. The labels on the pill bottles were partially removed so the names of the

patient and the drug could not be determined. The police also recovered a cell phone and

$70 in cash from Knox. The truck was lawfully registered to Knox. Even though the

pill bottles contained the names of the pharmacy and prescribing physicians, the police

did not inquire into the name of the person or persons for whom these medications had

been prescribed.

      {¶4} Knox explained the peeled steering column by saying that he recently

purchased the truck but did not have a key. He said that there were items in the truck
when he purchased it, that he did not own the bag, clothing, and pills. He surmised that

the bag had been in the truck when he purchased it.

       {¶5} Beginning with the drug possession counts, we find competent, credible

evidence to support a guilty verdict. The court heard conflicting testimony on whether

Knox owned the bag: the police said that Knox admitted that the bag, but not the pills,

belonged to him; Knox testified that he owned neither the bag nor the pills. What likely

convinced the court of Knox’s guilt was a letter written by a friend of Knox in which the

friend said that one of the bottles of pills found in the bag (Tramadol, a nonscheduled

drug), belonged to him. With Knox admitting that the Tramadol pills found in the bag

belonged to his friend, his testimony that he was unaware of the bag and the pills it

contained was incredible. It would require the court to believe that at least two persons

(the friend claimed to own only one of the three bottles) put pill containers in the bag

without Knox even knowing that the bag existed.

       {¶6} The weight of the evidence supporting the trafficking counts was far less

credible. There was no direct evidence of trafficking. A vice unit detective testified

that he considered Knox to be trafficking in drugs given the type of drugs found, their

packaging, and Knox’s possession of a cell phone and $70 in cash. Standing alone, none

of these facts is sufficient to establish that Knox knowingly prepared the drugs for

delivery or distribution.

       {¶7} In fact, the evidence tended to show mere possession and no trafficking.

That the pills were held in bulk inside pill bottles was unremarkable. Indeed, being
carried in bulk suggested that the pills were for Knox’s personal use because they were

not individually-packaged as would be expected if Knox were preparing them for delivery

or distribution. Knox’s possession of a cell phone and a small amount of cash is likewise

innocuous — cell phones are ubiquitous and there was no evidence that Knox used the

cell phone in any way to traffick the drugs. And the $70 in cash recovered from Knox is

not such an unusual amount of cash that it was suggestive of his being a drug dealer.

       {¶8} The vice detective thought it significant that the labels on the pill bottles had

been torn off, but we fail to see how that fact is indicative of trafficking. Given Knox’s

illegal possession of the pills, it is entirely plausible that he obtained the pills illegally and

then destroyed the labels to hide that fact.

       {¶9} In conclusion, the evidence of possession was credible, but the evidence

supporting the trafficking counts consisted of nothing more than a collection of several,

nonincriminating facts that said nothing about Knox’s intent to traffick pills recovered

from inside his truck. The conviction for trafficking counts was manifestly against the

weight of the evidence and Knox is entitled to a new trial on those counts.

       {¶10} This cause is affirmed in part, reversed in part, and remanded to the trial

court for further proceedings consistent with this opinion.

       It is ordered that appellee and appellant share the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated.   Case remanded

to the trial court for execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MELODY J. STEWART, ADMINISTRATIVE JUDGE

MARY EILEEN KILBANE, J., and
PATRICIA ANN BLACKMON, J., CONCUR
