[Cite as State v. Silcott, 2018-Ohio-3507.]




                               IN THE COURT OF APPEALS OF OHIO
                                  SECOND APPELLATE DISTRICT
                                        DARKE COUNTY

 STATE OF OHIO                                      :
                                                    :
          Plaintiff-Appellee                        :   Appellate Case No. 2017-CA-12
                                                    :
 v.                                                 :   Trial Court Case No. 2017-CR-170
                                                    :
 CHRISTOPHER A. SILCOTT                             :   (Criminal Appeal from
                                                    :   Common Pleas Court)
          Defendant-Appellant                       :
                                                    :

                                               ...........

                                              OPINION

                             Rendered on the 31st day of August, 2018.

                                               ...........

DEBORAH S. QUIGLEY, Atty. Reg. No. 0055455, Assistant Prosecuting Attorney, Darke
County Prosecutor’s Office, 504 South Broadway Street, Greenville, Ohio 45331
      Attorney for Plaintiff-Appellee

DANIEL F. GETTY, Atty. Reg. No. 0074341, 46 East Franklin Street, Centerville, Ohio
45459
      Attorney for Defendant-Appellant

                                              .............




DONOVAN, J.
                                                                                         -2-




       {¶ 1} This matter is before the Court on the November 2, 2017 Notice of Appeal

of Christopher A. Silcott. Silcott appeals from his October 18, 2017 Judgment Entry of

Conviction, issued following a bench trial, on one count of aggravated trafficking in drugs,

in violation of R.C. 2925.03(A)(1),(C)(1)(c), with a specification of prior convictions, a

felony of the third degree (Count I); one count of aggravated possession of drugs, in

violation of R.C. 2925.11(A),(C)(1)(c), a felony of the second degree (Count II); one count

of possessing criminal tools, in violation of R.C. 2923.24(A), a felony of the fifth degree

(Count III); and one count of having weapons while under disability, in violation of R.C.

2923.13(A)(3), a felony of the third degree (Count IV). The court sentenced Silcott to a

mandatory term of 30 months for aggravated trafficking in drugs, to a mandatory term of

five years for aggravated possession of drugs, to 116 days for possession of criminal

tools, and to 30 months for having weapons while under disability. The court ordered

that the sentences for aggravated trafficking in drugs and having weapons while under

disability be served consecutively to each other and concurrent to the remaining counts,

for a total sentence of 5 years.      The court imposed a $5,000 mandatory fine for

aggravated trafficking in drugs and a $7,500 mandatory fine for aggravated possession

of drugs, as well a three-year period of mandatory post release control. We hereby affirm

the judgment of the trial court.

       {¶ 2} Silcott was originally charged by way of complaint with one count of

aggravated trafficking in drugs on July 25, 2017. On July 28, 2017, Silcott was indicted

on one count each of aggravated trafficking in drugs, aggravated possession of drugs,

possession of criminal tools, and having weapons while under disability. Silcott was
                                                                                        -3-


arraigned and pled not guilty on August 4, 2017. On October 13, 2017, Silcott filed a

“Withdraw of Jury Demand.”

      {¶ 3} At the start of his October 18, 2017 trial, the prosecutor indicated that Count

II of the indictment provided that the amount of the drug involved equaled or exceeded

the bulk amount but was less than five times the bulk amount, but that it “should have

said that it was more than five times bulk amount but less than 50 times the bulk amount.”

The prosecutor asked to amend the indictment, defense counsel objected, and the court

deferred ruling on the request.

      {¶ 4} Jamie Hampshire testified that in April 2017, she resided with Silcott in

Gettysburg in Darke County, Ohio.       Hampshire testified that she agreed to testify

pursuant to a plea agreement, namely that the State “will drop the F2 to an F3 for me to

testify against him and drop the F5.” Hampshire stated that she met Silcott in January

2017 through a mutual friend, and that “she actually went and bought drugs off of him.”

She stated that in February 2017, she and her husband “split up,” and that she and Silcott

then began a relationship. According to Hampshire, “we were supposed to make things

better, our lives better, but it ended up worse.” Hampshire stated that she began using

methamphetamine “[w]hen I woke up” every day at the end of January or beginning of

February, 2017. Hampshire stated that she obtained the drugs from Silcott, and that

Silcott supported them both with drug money and “garage sale stuff.” She stated that

Silcott paid the first three months’ rent on their apartment. According to Hampshire,

Silcott sold methamphetamine that he obtained in the Dayton area every day.

      {¶ 5} Hampshire testified that, on July 24, 2017, Tim H. came to their apartment

around 9:30 a.m. as she and Silcott were getting into bed, having been up all night using
                                                                                        -4-


drugs. Hampshire testified that “when I was in the bedroom because I stayed in the

bedroom a lot and [Tim H.] came over and he came in the bedroom and Chris gave him

some stuff, meth. They talked and then he - - that was it. He left.” According to

Hampshire, she and Silcott went to sleep, and the police later arrived, woke them up, and

arrested them.     She identified photos of the apartment she shared with Silcott.

Hampshire testified that State’s Exhibit 4 depicted a phone, a ledger book, and Silcott’s

gun on the living room sofa. Regarding the ledger book, Hampshire stated that “when

people bought stuff, garage sale stuff and everything, he had a name in it, their names

and what they owed.” Hampshire stated that State’s Exhibit 5 depicted a pipe and a

“torch” to light it, and that State’s Exhibit 6, taken from a different angle, depicted two

pipes. Hampshire testified that State’s Exhibit 7 depicted scales that were used to weigh

methamphetamine, as well as a close-up of the “torch.” Hampshire stated that the living

room, where the above photos were taken, led into the bedroom. She stated that State’s

Exhibit 12 depicted Silcott’s nightstand, including a book bag with plastic bags on top for

Silcott’s “jewelry and drugs.”        Hampshire stated that she was aware that

methamphetamine was present in her residence “almost every day.”

       {¶ 6} On cross-examination, Hampshire testified that she and Silcott both signed

the lease for the apartment. She testified that Silcott got the gun the night before his

arrest from “a couple friends of his that came over.” She stated that Tim H. brought over

the scales, pipes and baggies “a few days prior,” and that they were not there until Tim

H. brought them.    On re-direct, when asked how Silcott sold methamphetamine before

Tim H. brought him the scales, she replied that Silcott had a different set of scales and

other baggies. She stated that she thought someone stole the other scales. Hampshire
                                                                                         -5-


stated that in addition to Silcott going to Dayton to obtain methamphetamine, people also

brought the drug to him in Gettysburg.

       {¶ 7} Eric Hanes testified that he was a narcotics detective with the Darke County

Sheriff’s Office, having been so employed for over 22 years. He stated that Tim H. was

a confidential informant with whom he worked on July 24, 2017, to make a controlled buy

from Silcott. He stated that Tim H. “had previously contacted * * * Detective Clark and

explained to him that he had some information that might help him out. * * * And we ended

up using him as a confidential informant to make a controlled purchase of drugs from

Chris Silcott.” Hanes stated that, on July 24, 2017, Tim H. “had made contact with

Sergeant Clark [and] advised that he could make a controlled buy off of Chris Silcott.”

Hanes stated that prior to the buy, Tim H. was searched for money, drugs, and contraband

and then transported to the area of the buy and provided with currency to make the

purchase; Tim H. was also given a recording device.

       {¶ 8} Detective Hanes stated that he observed Tim H. approach and enter Silcott’s

residence. He stated that he was able to view and listen to the transaction on his cell

phone by means of Tim H.’s recording device, and that he “could hear a transaction taking

place.” He stated that he heard Tim H.’s voice as well as Silcott’s. Hanes stated that,

when the transaction was complete, he observed Tim H. exit the apartment building and

walk directly to him. Hanes stated that he “never lost site [sic] of him. He walked directly

past me because as he was walking by me I said, just keep walking back to the car where

it was parked so I could make sure that nobody was out following him or anything like that

because that’s a common practice.” Hanes stated that Tim H. “got in the vehicle with

Sergeant Clark.” Hanes subsequently got into Clark’s vehicle as well and “went back to
                                                                                              -6-


the Sheriff’s Office with the evidence in hand from the purchase of the narcotics.”

           {¶ 9} Hanes stated that Clark field-tested the substance, that it “tested positive for

methamphetamine,” and that he “went back to do surveillance on the residence while

Sergeant Clark set up the next portion of the search warrant and raid for the house.”

Hanes remained at the residence for several hours and, throughout the day, “there [were]

multiple people coming and going from the residence.” Hanes stated that after the

search warrant was executed, he proceeded to the residence and “processed the scene

inside by taking pictures * * * and collecting evidence.”

           {¶ 10} Hanes identified the photos taken at the residence by him about which

Hampshire testified. He identified State’s Exhibits 16, 17 and 18 as depicting items

found in the course of executing the search warrant, which included photos of three

baggies filled with methamphetamine, pipes, plastic baggies “that are used for selling

narcotics,” “the handgun with the ammunition that he had for the handgun, the digital

scale, the phone * * * he used to make transactions and deals,” as well as the “money

that was seized during the search warrant, marijuana, the meth, some plastic baggies,”

and a “torch.” Hanes stated that digital scales “are generally used by drug dealers to

weigh out the product which they’re selling. They weigh it out to know what price to sell

it for.”

           {¶ 11} Hanes stated that he read Silcott his rights at 10:00 a.m., and that Silcott

agreed to speak to him. Hanes identified State’s Exhibit 19 as the statement of Miranda

rights signed by Silcott. Hanes testified that Silcott told him he wanted “to try to work a

plea deal and be an informant,” and that “he had been selling drugs for a long time by

getting drugs down in the Dayton area from certain individuals.” Hanes stated that he
                                                                                       -7-


again advised Silcott of his rights the following day and “just continued the conversation

from the day before.” He identified State’s Exhibit 20 as Silcott’s second statement of

Miranda rights. Hanes stated that Silcott was in custody at the Darke County Sheriff’s

Office when questioned. Hanes stated that Silcott told him “that the red ledger book was

people that owed him money for drugs.” Hanes stated that Silcott “gave up several

different names down in the Dayton area that he was able to go down and purchase from.

He was advising that the reason why heroin was slowing down is because they’re flooding

our area and other areas with methamphetamine for prices that were really low.” Hanes

stated that Silcott told him that he sold drugs “[t]o make money,” and that “it was good

money.”

      {¶ 12} At the conclusion of Hanes’s testimony, the following exchange occurred:

             THE COURT: Did you record your interviews on the 25th and 26th

      with Mr. Silcott?

             THE WITNESS: Yes, I did.

             THE COURT:        Were there transcripts prepared or summaries

      made?

             THE WITNESS: There’s a summary of the interview, yes.

             THE COURT: Each of them?

             THE WITNESS: Yes.

             THE COURT: Provided to the defense, Mrs. Quigley?

             MS. QUIGLEY: Yes.

             THE COURT: Any objection that I might have those?

             MR. PIERRON: I have none, your Honor.
                                                                                          -8-


              MS. QUIGLEY: No.

              THE COURT: And the reason for that, for the record, is there’s a lot

       of discussion that people’s memories logically move over time.

              ***

              THE COURT:        And the best record of what was said would be

       something written more closely in time as opposed to what we think we

       remember many months later after we restudy and rethink and reprocess.

              ***

              THE COURT:        So that’s an evolving area of the law. * * * No

       characterization of credibility implied.

              ***

              MS. QUIGLEY: The State has provided the Court with a copy of the

       notes of Detective Hanes - -

              ***

              THE COURT: I’ll mark these as Court’s Exhibit 1.

       {¶ 13} Tim H. testified that he was incarcerated at the time of the trial, and that he

used to reside at the Towne House Motel in Greenville. He stated that he met Silcott

during the previous winter, and after they became friends Tim H. would see Silcott

“probably daily.” He stated that he used to see Silcott in Greenville, but “when he got his

place in Gettysburg is when I started to see him in Gettysburg.” Tim H. stated that he

knew Hampshire, and that she and Silcott “were a couple.” He stated that he and Silcott

used crystal meth and marijuana together, and that he got methamphetamine from Silcott.

Tim H. stated that he “started to work with the Darke County Sheriff’s Office * * * a couple
                                                                                         -9-


weeks prior to the day that I met up with the detectives to take in a tool to get video and

audio of buying from Chris.” Tim H. stated that he got caught selling methamphetamine,

and that the sheriff’s office approached him about becoming an informant in exchange for

the dismissal of his charges. Tim H. stated that he agreed to do so, and he set up the

controlled buy.   Tim H. stated that he met with detectives “Hawes” and Clark in

Gettysburg and that he “was patted down, make sure there was nothing on [sic] my

possession.” He stated that he “was given a tool that was used for video and audio. I

took the tool for video and audio, [and] went straight to Chris Silcott.” Tim H. stated that

he “met up with Chris, [and] gave him the money that I owed him * * *.” According to Tim

H., Silcott would give him “ice,” methamphetamine, and crystal meth “to get rid of and

bring him back money.” Tim H. stated that he was “broke all the time and I would be

fronted and I would go out and make money. * * * I have a couple of people I talked to,

made some money and just did it over and over again daily mostly.”

       {¶ 14} Tim H. stated that, in the course of the controlled buy, he took three or four

hundred dollars to Silcott and “walked out with * * * between seven and ten grams” of

methamphetamine. After the buy, Tim H. stated that he “walked back to the detectives,

met with the detectives right away, and they patted me down and took the drugs off me

and put it in their possession.” When asked if anything was promised to him in exchange

for his testimony, Tim H. responded, “what I got in trouble for is what was promised to me

to be thrown out.” Tim H. indicated that he had been charged with drug trafficking, and

that he has a prior felony conviction from 2007 for trafficking in marijuana.

       {¶ 15} Detective Sergeant Christopher Clark testified that he was employed at the

Darke County Sheriff’s Office, having been so employed for 15 years. He stated that he
                                                                                            -10-


had been doing narcotics investigations for seven years. When asked how he selected

confidential informants, he responded as follows:

              We gather a lot of Intel at the Sheriff’s Office. Detective Hanes and

       myself, we do a lot of interviews. So when I’m asking a person I might be

       wanting to be an informant, I ask them questions about what’s going on in

       Greenville or in Darke County. And I can tell if they’re lying to me or not

       about certain people and everything. I judge off of their character if they’re

       telling me the truth.

       {¶ 16} Clark stated Tim H. agreed to become an informant after detectives “did a

drug buy on Water Street * * *. He was inside the residence when we did the search

warrant on the house and in his front pocket he had methamphetamine. So he was

charged with possession of methamphetamine.”             Clark stated that he, Hanes, and

“Detective Marion, we all knew that [Tim H.] was friends with Chris Silcott * * * and we

met [Tim H.] and we talked about Chris Silcott, his involvement, what he’s doing.” Clark

stated that he advised Tim H. that if he agreed to purchase methamphetamine from Silcott

in a controlled buy, the charge against Tim H. would not be turned over to the prosecutor.

       {¶ 17} Clark’s testimony was consistent with Hanes’s about the procedures used

in the controlled buy. Clark testified that, while sitting in his vehicle, he was able to “watch

the audio/video of the transaction as it’s going on. * * * Detective Hanes was up by the

gas station and he was keeping eyes on [Tim H.] as he went into the residence and as

he came back.” A copy of State’s Exhibit 24, the audio/video of the controlled buy, was

played for the court.

       {¶ 18} Clark identified State’s Exhibit 21 as a photo of the “buy money” provided
                                                                                        -11-


to Tim H., and State’s Exhibit 22, which depicted two pouches and a package of baggies,

as “what [Tim H.] brought back to me.” According to Clark, when Tim H. entered the

residence, “he did not have the bag with him. But when he returned, he had the bag with

him and the methamphetamine was in it along with the small bags that you would use to

put methamphetamine in to sell.” Clark identified State’s Exhibit 23 as a photo of “a field

test I did of the methamphetamine and it field tested positive.            This was the

methamphetamine that [Tim H.] purchased from Mr. Silcott.” Clark stated that after he

confirmed that the substance was methamphetamine, “we went into getting a search

warrant for the residence.” Clark identified Exhibit 25 as a copy of the search warrant he

obtained.

      {¶ 19} Clark stated that, after obtaining the warrant, he met with “the Special

Response Team. We knew that there possibly was a weapon inside the residence. So

I had the Special Response Team handle going there and making contact with Mr. Silcott

and Jamie Hampshire.” Clark stated that in the course of the execution of the warrant,

“Mr. Silcott and Miss Hampshire, they were called out on a PA to come out of the

residence. They came out with no problems.” After the residence was secured, Clark

stated that he and Hanes went upstairs. Clark identified State’s Exhibits 17 and 18. He

identified State’s Exhibits 26-37 as evidence bags containing the evidence he processed.

Clark stated that a High Point Firearms, model JCP 40, Smith and Wesson was removed

from the scene, and that when it was found, “the magazine was inserted in it and it had

live ammunition inside the magazine.” He stated that he tested the weapon, and it was

operable.

      {¶ 20} Clark stated that he had known Silcott for seven or eight years.           He
                                                                                         -12-


identified as State’s Exhibit 38 a certified judgment entry of Silcott’s prior conviction in

Case No. 2011 CR 00043. The judgment reflected that Silcott had been charged with

illegal manufacture of drugs and illegal assembly or possession of chemicals for

manufacture of drugs, but he pled guilty to one count of attempted illegal manufacture of

drugs (methamphetamine) (Count I), a felony of the second degree, and one count of

illegal assembly or possession of chemicals for manufacture of drugs (Schedule II) (Count

II), a felony of the third degree. Silcott was sentenced to five years on Count I and three

years on Count II, to be served concurrently. Finally, Clark identified State’s Exhibits 39

and 40 as Laboratory Reports from the Miami Valley Regional Crime Laboratory

confirming that the evidence submitted from the controlled buy was methamphetamine

and its weight. Exhibit 39 provides that testing revealed methamphetamine “having a

net weight of 17.23 grams, +/- 0.08 gram(s)” and that the “bulk amount of

Methamphetamine is three (3.00) grams.” Exhibit 40 provides that testing revealed

methamphetamine “having a net weight of 6.92 grams, +/- .02 gram(s).”

       {¶ 21} The following exchange occurred during Clark’s cross-examination:

              Q. * * * And just so I’m clear, the controlled buy was the basis for

       the search warrant, correct?

              A. Correct.

              Q. * * * I have an affidavit here that was provided in discovery July

       25th, 2017, and it basically says that you were in contact - - you signed it so

       I’m just going to ask you. That you were in contact with a confidential and

       reliable informant hereafter referred to as [Tim H.]. * * *

              A. Correct.
                                                                                   -13-


       Q. It says, This officer knows [Tim H.] to be reliable and that he or

she has provided information in the past that has been confirmed to be true

and accurate. What does that mean?

       A.    When we were talking to him at the Greenville Police

Department, the information that he was giving, we didn’t have to ask. We

didn’t have to guide him in any direction. Stuff that he was actually saying

we knew to be true. We knew that he was being a truthful person to us.

       Q. Okay.

       A. He wasn’t trying to lie to us. He wasn’t trying to make a story

up.

       ***

       Q. * * * So how many times do you think he supplied you reliable

information based on your experience with him?

       A. Based on my experience with him, I could - - any time he would

talk about Mr. Silcott, how he was talking in that interview at Greenville

Police Department. I don’t know how many different accounts that we

knew that he was telling the truth about.

       Q. May I ask what kinds of things he was getting right, I guess - -

       A. Just drug activity, his pattern. I’ve interviewed other - - * * * drug

users * * * in my interviews, and Mr. Silcott’s name comes up. So I could

tell about the guns that we’d gotten information on before in the past that he

had guns with [Tim H.] bringing that up.

       Q. * * * Has [Tim H.’s] information led to a conviction or any other
                                                                                              -14-


       warrants or anything in any other case?

               A. No. It all relates to this one.

       {¶ 22} After the Exhibits were admitted, the State again moved the court to amend

the indictment to reflect the testimony and evidence presented, and the court permitted

the amendment over Silcott’s objection. The court noted that the amendment “did not

increase the level of the offense. From the beginning, from the Indictment, I advised it

was a felony of the second degree. So he would have had the same penalties in mind.

There’s no prejudice or harm in that respect.” The court noted that the “change from the

amount of bulk to a larger amount of bulk is still something that you can compensate for.

It is what it is. Either it’s less than five times or five to fifty but it’s the same concept. * *

* it changes the elements in some respect but really only the description of what it is, not

anything that wouldn’t be something you could anticipate.” According to the court, the

“essential elements remain the same. It’s just a different number of one element.”

       {¶ 23} In a written decision on October 18, 2017, the court indicated in part as

follows regarding the amendment of the indictment:

               The Court announced its approval of the amendment for the following

       reasons: (a) the penalty was originally * * * announced as a second degree

       felony and the amendment does not raise the level of the offense as

       announced; (b) the “bulk amount” element did not change while the facts

       necessary to prove the “bulk amount” did change; (c) the Court considered

       Criminal Rule 7(D), State v. Jester, 32 Ohio St.3d 147, 512 N.E.2d 962

       (1987) and State v. Lynn, 129 Ohio St.3d 146, 950 N.E.2d 931, 2011-Ohio-

       2722.
                                                                                         -15-


       {¶ 24} The court further noted as follows:

              The Court considered from Count I the language of whether “the

       offender, two or more times previously has been convicted of or plead guilty

       to a felony drug offense.” If proven, the sentence would require mandatory

       imprisonment for a third degree felony instead of only a preferred

       imprisonment. The question is whether there must be convictions for two

       or more felonies or whether there have been convictions on two or more

       occasions. In this case, per Exhibit 38, the Defendant was convicted on

       September 16, 2011 of two felony drug offenses in Case No. 11-CR-00043.

       The Court finds that the two different offenses in that single case meet the

       statutory definition.

       {¶ 25} In a footnote, the court noted that “the concept of merger for allied offenses

is considered differently today than in 2011; whether that matters is not considered since

the record is devoid of necessary facts. Although discussed on the record, the Court

finds no application of the principles set forth in State v. Fittro, 66 Ohio St.3d 16, 607

N.E.2d 447, 1993-Ohio-172.”

       {¶ 26} We note that in Silcott’s judgment entry of conviction, the court noted that,

at “the Court’s insistence, the matter was not referred for preparation of pre-sentence

investigation, and the Court then proceeded with sentencing with a former pre-sentence

report and recent pre-trial report.” The reports are not in the record before us and were

not marked and identified as exhibits on the record.

       {¶ 27} Silcott asserts four assignments of error herein.     His first assignment of

error is as follows:
                                                                                        -16-


              THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE

      EVIDENCE.

      {¶ 28} According to Silcott, “the judge lost his way in two regards. First, there was

insufficient evidence to establish that Mr. Silcott was guilty as the search warrant was

invalid and the only witnesses lacked credibility. Second, without a doubt there was

insufficient evidence to establish two prior convictions justifying the mandatory

sentences.”

      {¶ 29} Silcott asserts that Hampshire and Tim H. were “biased. Both witnesses

were under agreements with the state for the testimony and, therefore, * * * both had

substantial motivation to accuse and otherwise point their fingers at Mr. Silcott.” He

asserts “both witnesses were admitted drug addicts.” According to Silcott, Tim H. “even

admitted he brought many of the items found in Mr. Silcott’s home to Mr. Silcott only days

before.” He asserts that “although evidence found at the scene could arguably support

the Judge’s findings, the fact remains that most, if not all, of such evidence was brought

to the residence by the state’s main witness.”

      {¶ 30} Silcott further asserts that “the only evidence presented to support two prior

convictions occurred during the testimony of Detective Clark. During such, although

Detective Clark authenticated the Judgment Entry from a 2011 case, which contains two

convictions, no further testimony was offered regarding merger analysis.” Silcott asserts

that if “such would merge under current law, then obviously the Judge committed

reversible error in imposing mandatory sentences.” Silcott asserts that the imposition of

a mandatory sentence on Count I was against the manifest weight of the evidence.

      {¶ 31} The State responds that “the items that [Tim H.] brought to the house
                                                                                          -17-


included: scales, baggies, and ‘bubbles’ not the methamphetamine. * * * The items

according to [Tim H.] were for Appellant to use in his business. * * * According to

Hampshire the gun came from other friends who brought it to Appellant the night before.”

The State further asserts that Tim H.’s “testimony was backed by the video of the drug

transaction.” The State directs our attention to State’s Exhibit 38.

       {¶ 32} Although Silcott’s assigned error is addressed to the manifest weight of the

evidence, in the body of his brief he further asserts that there was insufficient evidence of

guilt. As this Court has noted:

              A sufficiency of the evidence argument disputes whether the State

       has presented adequate evidence on each element of the offense to sustain

       the verdict as a matter of law. State v. Wilson, 2d Dist. Montgomery No.

       22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380,

       386, 678 N.E.2d 541 (1997). “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, 61 Ohio St.3d 259, 574 N.E.2d 492

       (1991), paragraph two the syllabus.

              In contrast, an argument based on the weight of the evidence

       “challenges the believability of the evidence and asks which of the

       competing inferences suggested by the evidence is more believable or

       persuasive.” Wilson at ¶ 12; see Eastley v. Volkman, 132 Ohio St.3d 328,

       2012-Ohio-2179, 972 N.E.2d 517, ¶ 19 (“ ‘manifest weight of the evidence’

       refers to a greater amount of credible evidence and relates to persuasion”).
                                                                                        -18-


      When evaluating whether a conviction is against the manifest weight of the

      evidence, the appellate court must review the entire record, weigh the

      evidence and all reasonable inferences, consider witness credibility, 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.” Thompkins at

      387, citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st

      Dist. 1983).

             Because the trier of fact sees and hears the witnesses at trial, we

      must defer to the factfinder’s decisions whether, and to what extent, to credit

      the testimony of particular witnesses.         State v. Lawson, 2d Dist.

      Montgomery No. 16288, 1997 WL 476684 (Aug. 22, 1997). The fact that

      the evidence is subject to different interpretations does not render the

      conviction against the manifest weight of the evidence. Wilson at ¶ 14. A

      judgment of conviction should be reversed as being against the manifest

      weight of the evidence only in exceptional circumstances. Martin at 175.

State v. Fields, 2d Dist. Clark No. 2016-CA-76, 2017-Ohio-7745, ¶ 37-39.

      {¶ 33} Having thoroughly reviewed the entire record, and viewing the evidence in

a light most favorable to the State, we conclude that Silcott’s convictions are supported

by sufficient evidence and are not against the manifest weight of the evidence. We

further conclude that the search warrant provided probable cause to search Silcott’s and

Hampshire’s residence, and that it was not invalidated by a lack of credibility on the part

of Tim H. and Hampshire.        Clark testified that officers were already aware from
                                                                                         -19-


interviewing other drug users that Silcott was engaged in drug activity and selling drugs.

Clark stated that he had known of Silcott for seven to eight years. He stated that Tim

H.’s information was consistent with what the officers already knew, and they were

confident in Tim H.’s truthfulness. Tim H. set up the controlled buy and the transaction

went as planned, as reflected in State’s Exhibit 24, the audio-video recording. Court’s

Exhibit 1 reflected Silcott’s own detailed accounts of his access to drugs and other

dealers.

      {¶ 34} Regarding Count I, R.C. 2925.03(A)(1),(C)(1)(c) provides:

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

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

      substance analog;

             ***

             (C) Whoever violates division (A) of this section is guilty of one of the

      following:

             ***

             (1) If the drug involved in the violation is any compound, mixture,

      preparation, or substance included in schedule I or schedule II, with the

      exception of marihuana, cocaine, L.S.D., heroin, hashish, and controlled

      substance analogs, whoever violates division (A) of this section is guilty of

      aggravated trafficking in drugs. The penalty for the offense shall be

      determined as follows:

             ***

             (c) Except as otherwise provided in this division, if the amount of the
                                                                                         -20-


      drug involved equals or exceeds the bulk amount but is less than five times

      the bulk amount, aggravated trafficking in drugs is a felony of the third

      degree, and, except as otherwise provided in this division, there is a

      presumption for a prison term for the offense. If aggravated trafficking in

      drugs is a felony of the third degree under this division and if the offender

      two or more times previously has been convicted of or pleaded guilty to a

      felony drug abuse offense, the court shall impose as a mandatory prison

      term one of the prison terms prescribed for a felony of the third degree. * * *

      {¶ 35} As noted above, the evidence was clear that Tim H. set up the controlled

drug buy, entered the residence with cash obtained from the officers, and returned with

methamphetamine. Exhibit 40 reflects that the Miami Valley Regional Crime Laboratory

received an envelope containing methamphetamine, from Silcott’s address, “having a net

weight of 6.92 grams, +/- .02 gram(s).” Further, State’s Exhibit 38, a final judgment of

conviction, establishes that Silcott previously pled guilty to two felony drug abuse

offenses, consistent with the language of R.C. 2925.03(A)(1),(C)(1)(c), and we conclude

that Silcott’s argument regarding merger lacks merit. We find that Silcott’s conviction for

aggravated trafficking in drugs was not against the manifest weight of the evidence, and

that it was supported by sufficient evidence.

      {¶ 36} Regarding Count II, R.C. 2925.11(A),(C)(1)(c) provides:

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

      substance or a controlled substance analog.

             ***

             (C) Whoever violates division (A) of this section is guilty of one of the
                                                                                       -21-


      following:

             (1) If the drug involved in the violation is a compound, mixture,

      preparation, or substance included in schedule I or II, with the exception of

      marihuana, cocaine, L.S.D., heroin, hashish, and controlled substance

      analogs, whoever violates division (A) of this section is guilty of aggravated

      possession of drugs. The penalty for the offense shall be determined as

      follows:

             ***

             (c) If the amount of the drug involved equals or exceeds five times

      the bulk amount but is less than fifty times the bulk amount, aggravated

      possession of drugs is a felony of the second degree, and the court shall

      impose as a mandatory prison term one of the prison terms prescribed for

      a felony of the second degree.

      {¶ 37} As noted above, Silcott’s indictment charged him with aggravated

possession of drugs pursuant to the above section, and it was amended to reflect the

correct amount of the drug involved. Again, Tim H. obtained the drugs in the course of

the controlled buy, and Exhibit 39 reflects that the Miami Valley Regional Crime

Laboratory received an envelope containing methamphetamine from Silcott’s address

“having a net weight of 17.23 grams, +/- 0.08 gram(s).” Since that amount is five times

the bulk amount of three grams, we conclude that Silcott’s conviction for aggravated

possession of drugs was not against the manifest weight of the evidence, and that it was

supported by sufficient evidence.

      {¶ 38} Regarding Count III, R.C. 2923.24(A) provides: “(A) No person shall
                                                                                        -22-


possess or have under the person's control any substance, device, instrument, or article,

with purpose to use it criminally.” While Hampshire asserted that Tim H. brought the

scales, baggies, and pipes into the residence a few days prior to the execution of the

warrant, the items were in Silcott’s (and Hampshire’s) possession when officers seized

them from their home. We accordingly cannot conclude that Silcott’s conviction on

Count III was against the manifest weight of the evidence, and we find that it was

supported by sufficient evidence.

      {¶ 39} Finally, R.C. 2923.13 provides:

             (A) Unless relieved from disability under operation of law or legal

      process, no person shall knowingly acquire, have, or use any firearm or

      dangerous ordnance, if any of the following apply:

             ***

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

      felony offense involving illegal possession, use, sale, administration,

      distribution, or trafficking in any drug of abuse * * *

      {¶ 40} Since Silcott was previously convicted of two felony drug offenses, and a

weapon was removed from his residence, sufficient evidence supported his conviction for

having weapons while under disability, and his conviction was not against the manifest

weight of the evidence.

      {¶ 41} For the foregoing reasons, Silcott’s first assignment of error is overruled.

      {¶ 42} Silcott’s second assignment of error is as follows:

             THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY

      ALLOWING THE INDICTMENT TO BE AMENDED ON THE DAY OF
                                                                                       -23-


      TRIAL.

      {¶ 43} Silcott asserts that the amendment “effectually enhanced the indicted

crime to a higher felony. Because of the untimely amendment on the day of trial, Mr.

Silcott was unable to have any independent tests performed on the evidence (drugs) and,

thereafter, offer rebuttal testimony.” According to Silcott, the “actual alleged crime was

contained in Count 2, for violations of Aggravated Possession under 2925.11(A),(C)(1)(b).

However, as noted such was amended on the day of trial to allege violations under

2925.11(A),(C)(1)(c).” He argues that the amendment “had substantial consequences

* * * as the charges went from a Felony 3 to a Felony 2.” He argues that the “potential

implications of such are obvious and should have been to the Judge, as sentencing went

from a presumption of a possible prison term of 9 to 36 months, to mandatory prison of 2

to 8 YEARS.”

      {¶ 44} The State responds that Silcott “was always aware of the consequences of

a conviction for this offense,” and he “had notice of the charge against him and was aware

of the amount of drugs, methamphetamine, which the State alleged he possessed.”

According to the State, the “amendment was a typographical error which did not alter the

name or identity of the crime and falls within Crim.R. 7(D). The court granted the State’s

motion to amend the indictment and correct the language of Count two.”

      {¶ 45} As this Court has previously noted:

               “The Sixth Amendment to the U.S. Constitution provides an accused

      in a criminal prosecution the right to be informed of the ‘nature and cause

      of the accusation’ against him. This right, like all other Sixth Amendment

      rights, is part of the due process of law that is guaranteed by the Fourteenth
                                                                                         -24-

       Amendment to all criminal defendants in state court.” State v. Collinsworth,

       12th Dist. Brown No. CA2003–10–012, 2004-Ohio-5902, 2004 WL

       2504485, ¶ 15, citing Faretta v. California, 422 U.S. 806, 818, 95 S.Ct. 2525,

       45 L.Ed.2d 562 (1975).

              Section 10, Article I of the Ohio Constitution echoes this right, by

       guaranteeing “the accused that the essential facts constituting the offense

       for which he is tried will be found in the indictment of the grand jury.”

       (Citation omitted.) State v. Headley, 6 Ohio St.3d 475, 478, 453 N.E.2d 716

       (1983), clarified on other grounds in State v. Jackson, 134 Ohio St.3d 184,

       2012-Ohio-5561, 980 N.E.2d 1032, ¶ 20–21. “Where one of the vital

       elements identifying the crime is omitted from the indictment, it is defective

       and cannot be cured by the court as such a procedure would permit the

       court to convict the accused on a charge essentially different from that found

       by the grand jury.” (Citations omitted.) Headley at 478–479, 453 N.E.2d 716.

State v. Lackey, 2015-Ohio-5492, 55 N.E.3d 613, ¶ 59-60 (2d Dist.).

       {¶ 46} Crim.R. 7(D) provides: “The court may at any time before, during, or after a

trial amend the indictment * * * in respect to any defect, imperfection, or omission in form

or substance, or of any variance with the evidence, provided no change is made in the

name or identity of the crime charged.”

       {¶ 47} As this Court further noted in Lackey at ¶ 62-63:

              “The purpose of an indictment is twofold. By compelling the

       government to aver all material facts constituting the essential elements of

       an offense, an accused is afforded with adequate notice and an opportunity
                                                                                          -25-


       to defend. * * * An indictment, by identifying and defining the offense, also

       enables an accused to protect himself from any future prosecutions for the

       same offense.” (Citations omitted.) State v. Sellards, 17 Ohio St.3d 169,

       170, 478 N.E.2d 781 (1985).

              Amendments are not permitted where they alter an offense's degree

       or penalty. In these circumstances, the amendment “changes the identity of

       the offense.” State v. Davis, 121 Ohio St.3d 239, 2008-Ohio-4537, 903

       N.E.2d 609, ¶ 9.

       {¶ 48} In Davis, the Ohio Supreme Court found plain error when an indictment was

amended to “allow a defendant to be prosecuted for a higher degree of a crime. In that

case there was a miscarriage of justice because the prosecution was attempting to

‘increase the penalty of degree of the offense’ charged.” State v. Rohrbaugh, 126 Ohio

St.3d 421, 2010-Ohio-3286, 934 N.E.2d 920, ¶ 9, citing Davis at ¶ 12. Specifically, Davis

was indicted for selling or offering to sell Oxycontin “in an amount less than the bulk

amount, * * * in violation of [R.C.] 2925.03(A)(1),” a felony of the fourth degree as charged.

(Emphasis sic.) Davis at ¶ 2. In the course of the trial, on the State’s motion, the above

charge was amended to charge Davis with selling or offering to sell Oxycontin “in an

amount greater than five times the bulk amount but less than fifty times the bulk amount,

in violation of [R. C.] 2925.03(A)(1).” (Emphasis sic.) Id. at ¶ 3. “As amended, the charge

was a felony of the second degree. R.C. 2925.03(C)(1)(d) (‘if the amount of the drug

involved equals or exceeds five times the bulk amount but is less than fifty times the bulk

amount, aggravated trafficking in drugs is a felony of the second degree’).” Id. We

conclude that the facts in Davis are distinguishable.
                                                                                           -26-


       {¶ 49} Silcott’s July 28, 2017 indictment charged him as follows with respect to

Count II:




       {¶ 50}   As reflected above, Count II charged Silcott with a violation of R.C.

2925.11(A),(C)(1)(c), a felony of the second degree, and provided notice that he was

subject to a mandatory term of imprisonment (“MP”).            Silcott’s indictment was not

denominated as a violation of R.C. 2925.11(A),(C)(1)(b), a felony of the third degree, nor

did it state a presumption of a particular prison term. 1        The substantive language

regarding the quantity of the drug involved was simply misstated. Silcott was aware of

the amount of the drug involved in Count II pursuant to the discovery provided to him,2

and he did not object to the admission of Exhibit 39, the lab report confirming

methamphetamine in an approximate amount of 17.23 grams. Consistent with the rule

in Davis, amending the indictment to change the amount of the drug involved to conform

to the evidence did not violate Crim.R. 7 in this instance, as it did not alter the offense’s

degree or penalty as set forth in the indictment. Silcott’s second assignment of error

lacks merit and is accordingly overruled.


1
  R.C. 2925.11(A),(C)(1)(b) provides: “If the amount of the drug equals or exceeds the
bulk amount but is less than five times the bulk amount, aggravated possession of drugs
is a felony of the third degree, and there is a presumption for a prison term for the offense.”

2
 The record before us contains Silcott’s July 27, 2017 Request for Discovery, including
reports of scientific tests, as well as the State’s August 4, 2017 Certificate of Compliance
with Discovery.
                                                                                              -27-


       {¶ 51} Silcott’s third assignment of error is as follows:

               MR.    SILCOTT      WAS      NOT     AFFORDED        THE     EFFECTIVE

       ASSISTANCE OF COUNSEL.

       {¶ 52} Silcott asserts that defense counsel acted ineffectively in that he failed to

file a motion to suppress “raising the validity of the search warrant prior to trial,” since “the

only witness supporting the validity of the search warrant was an unreliable source.”

Silcott further asserts that defense counsel “failed to file Motions to find [him] indigent to

avoid the imposition of mandatory fines.”

       {¶ 53} The State responds that Tim H.’s “word was backed by the video officers

observed and heard of the drug transaction between Appellant and [Tim H.].” The State

asserts that “trial counsel’s failure to file an affidavit of Appellant’s indigent status to avoid

paying the mandatory fines does not support an ineffective assistance of counsel claim.

Information regarding Appellant’s financial status was not provided to the trial court for

sentencing.”

       {¶ 54} As this Court has previously noted:

               It is well established that ineffective assistance of counsel affects a

       substantial right afforded by the United States and Ohio Constitutions.

       Strickland v. Washington, supra; State v. Bradley, 42 Ohio St.3d 136, 538

       N.E.2d 373 (1989). “Trial counsel is entitled to a strong presumption that

       his or her conduct falls within the wide range of reasonable assistance, and

       a defendant, in order to overcome the presumption that counsel is

       competent, must show that counsel's decisions were ‘not trial strategies

       prompted by reasonable professional judgment.’ “ State v. Few, 2d Dist.
                                                                                   -28-

Montgomery No. 21561, 2012-Ohio-5407, ¶ 10, quoting Strickland at 687.

“Hindsight is not permitted to distort the assessment of what was

reasonable in light of counsel's perspective at the time, and a debatable

decision concerning trial strategy cannot form the basis of a finding of

ineffective assistance of counsel.” Id. at ¶ 11, quoting State v. Nabors, 2d

Dist. Montgomery No. 24582, 2012-Ohio-4757, ¶ 17.                     “Even if

unsuccessful, strategic decisions will not constitute ineffective assistance of

counsel.” Id., citing State v. Carter, 72 Ohio St.3d 545, 558, 651 N.E.2d 965

(1995). Generally, the decision regarding which defense to pursue at trial

is a matter of trial strategy, and trial strategy decisions are not a basis of a

finding of ineffective assistance of counsel. State v. Moss, 2d Dist.

Montgomery No. 22496, 2008-Ohio-6969, ¶ 35, citing State v. Murphy, 91

Ohio St.3d 516, 524, 747 N.E.2d 765 (2001); State v. Dixon, 101 Ohio St.3d

328, 2004-Ohio-1585, 805 N.E.2d 1042, ¶ 52

{¶ 55} As this Court has further noted:

       “The failure to file a motion to suppress does not necessarily

constitute ineffective assistance of counsel.” State v. Layne, 12th Dist.

Clermont No. CA2009-07-043, 2010-Ohio-2308, ¶ 46, citing State v.

Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000).              It is only

considered ineffective assistance of counsel when the record demonstrates

that the motion to suppress would have been successful if made. State v.

Resendiz, 12th Dist. Preble No. CA2002-03-026, 2002-Ohio-5455, ¶ 11.

The court in Resendiz presumed that trial counsel was effective if he could
                                                                                         -29-


      have reasonably decided that filing a suppression motion would be a futile

      act, even if there is some evidence in the record to support a motion.

      Resendiz at ¶ 29. * * *.

             ***

             “Where the basis of an ineffective assistance of counsel claim is

      counsel’s failure to file a motion to suppress evidence, the defendant

      making that claim must prove that the basis of the suggested suppression

      claim is meritorious.” In re D.D., 2d Dist. Montgomery No. 22740, 2009-

      Ohio-808, ¶ 3, citing Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574,

      91 L.Ed. 305 (1986); State v. Pillow, 2d Dist. Greene No. 07CA95, 2008-

      Ohio-6046.

State v. Black, 2d Dist. Montgomery Nos. 26986, 26991, 2016-Ohio-7901, ¶ 26, 28.

      {¶ 56} As noted under the first assignment of error, probable cause existed to

search the residence after the controlled buy, and the audio/video recording supports Tim

H.’s version of events. There is no basis to conclude that a motion to suppress would

have been successful and altered the outcome herein.

      {¶ 57} As to defense counsel’s failure to file an affidavit of indigency, as the State

asserts, the record reflects that Silcott was a well-known drug dealer over a number of

years, and he supported himself and Hampshire with the proceeds of his drug dealing.

He paid three months’ rent on their apartment, and he told Hanes he was making “good

money.” Presuming that defense counsel’s conduct fell within the wide range of

professional assistance, we cannot determine that but for defense counsel’s failure to file

an affidavit if indigency, the trial court would not have imposed fines. Since ineffective
                                                                                         -30-


assistance of counsel is not demonstrated, Silcott’s third assignment of error is overruled.

       {¶ 58} Silcott’s final assignment of error is as follows:

              THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY

       IMPOSING MANDATORY SENTENCES.

       {¶ 59} Silcott asserts that the trial court “committed reversible error when it

imposed mandatory prison of 30 months on Count 1 and 5 years on Count 2.” According

to Silcott, the court “lacked any statutory authority to impose mandatory sentences. This

is true because the Court lacked any evidence to support, beyond a reasonable doubt,

that Mr. Silcott had two previous convictions.”

       {¶ 60} As noted above, R.C. 2925.03(A)(1),(C)(1)(c) requires a mandatory

sentence when the evidence shows that a defendant has two or more prior felony

convictions for drug offenses, and R.C. 2925.11(A),(C)(1)(c) requires a mandatory term

of imprisonment upon conviction of that offense. Silcott’s fourth assignment of error

lacks merit and is overruled.

       {¶ 61} Having overruled Silcott’s four assigned errors, the judgment of the trial

court is affirmed.

                                      .............

HALL, J. and TUCKER, J., concur.


Copies mailed to:

Deborah S. Quigley
Daniel F. Getty
Hon. Jonathan P. Hein
