[Cite as State v. Smith, 193 Ohio App.3d 201, 2011-Ohio-997.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               SENECA COUNTY




THE STATE OF OHIO,

        APPELLEE,                                               CASE NO. 13-10-24

        v.

SMITH,                                                          OPINION

        APPELLANT.




                 Appeal from Seneca County Common Pleas Court
                           Trial Court No. 09 CR 0278

                                     Judgment Affirmed

                             Date of Decision: March 7, 2011




APPEARANCES:

        Derek W. DeVine and Rhonda L. Best, for appellee.

        James S. Nordholt Jr., for appellant.
Case No. 13-10-24



       PRESTON, Judge.

       {¶ 1} Defendant-appellant, Marquis Smith, appeals the judgment of

conviction and sentence entered against him by the Seneca County Court of

Common Pleas following a jury trial in which Smith was found guilty of one count

of trafficking in crack cocaine. For the reasons that follow, we affirm.

       {¶ 2} On December 16, 2009, the Seneca County Grand Jury returned an

indictment against Smith charging him with the following counts: count one,

trafficking in cocaine, with a specification that the offense was committed in the

vicinity of a school in violation of R.C. 2925.03(A)(1) and (C)(4)(b), a felony of

the fourth degree; and count two, trafficking in crack cocaine in violation of R.C.

2925.03(A)(1) and (C)(4)(c), a felony of the fourth degree. On January 7, 2010,

Smith was arraigned and entered pleas of not guilty to both counts in the

indictment.

       {¶ 3} A jury trial was held on May 10 and 11, 2010.                 After the

presentation of the evidence, the jury returned verdicts of not guilty as to count

one, trafficking in cocaine, with a specification, and guilty as to count two,

trafficking in crack cocaine.

       {¶ 4} A sentencing hearing was held on May 18, 2010, and Smith was

sentenced to 17 months in prison.



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         {¶ 5} Smith now appeals and raises the following two assignments of

error.

                         ASSIGNMENT OF ERROR NO. I

               The verdict of guilty rendered by the jury was against the
         manifest weight of the evidence.

         {¶ 6} In his first assignment of error, Smith claims that his conviction was

against the manifest weight of the evidence.

         {¶ 7} An appellate court’s function when reviewing the weight of the

evidence is to determine whether the greater amount of credible evidence supports

the verdict. State v. Thompkins (1997), 78 Ohio St.3d 380, 387, 678 N.E.2d 541.

In reviewing whether the trial court’s judgment was against the weight of the

evidence, the appellate court sits as a “13th juror” and examines the conflicting

testimony. Id. In doing so, this court must review the entire record, weigh the

evidence and all of the reasonable inferences, consider the credibility of witnesses,

and determine whether in resolving conflicts in the evidence, the fact-finder

“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. Andrews, 3d Dist.

No. 1-05-70, 2006-Ohio-3764, ¶ 30, citing State v. Martin (1983), 20 Ohio App.3d

172, 175, 485 N.E.2d 717; Thompkins at 387.




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      {¶ 8} Here, Smith was found guilty on one count of trafficking in drugs in

violation of R.C. 2925.03(A)(1), which states that “[n]o person shall knowingly *

* * (1) [s]ell or offer to sell a controlled substance.” However, on appeal, Smith

disputes only the evidence identifying him as the person who had sold the drugs to

the confidential informant.

      {¶ 9} The record indicates that on January 8, 2009, and January 11, 2009,

the Seneca County Drug Task Force conducted controlled-buy operations at 26

Minerva Street and 233 Franklin Street, Tiffin, Seneca County, Ohio, after having

been informed by a confidential informant that he would be able to purchase crack

cocaine from Smith.

      {¶ 10} Detective Charles W. Boyer, with the city of Tiffin, testified that he

had been the officer in charge of the two operations, since it had been his

confidential informant that had originally come to him with information that he

could purchase crack cocaine from Smith. Boyer stated that he, along with two

other officers, conducted two controlled buys: the first one on January 8, 2009, at

26 Minerva Street; and the second one on January 11, 2009, at 233 Franklin Street.

On January 11, 2009, Boyer said that O’Leary, his confidential informant,

contacted him and informed him that he would have the opportunity to buy drugs

from someone known as Parkay or PK at 233 Franklin Street in Tiffin. Boyer said

that they knew Smith, was known as PK or Parkay and that at the time Smith was

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residing at 233 Franklin Street, the same residence as the target location for the

second controlled-buy operation.

      {¶ 11} That night, Boyer, along with two other officers, met O’Leary at a

predetermined location, and conducted their standard pre-operational procedure,

which included searching O’Leary for weapons or other contraband, placing an

audio recording device on O’Leary, and giving O’Leary covert-issued funds of

$150 to be used for purchasing the drugs.         Boyer said that his particular

responsibility during this second controlled-buy operation was visual surveillance,

while the other two officers were responsible for the audio surveillance. The two

officers dropped off O’Leary close to the target location and O’Leary walked up to

the residence at 233 Franklin Street, while Boyer hid next to a garage in a nearby

alley. Because O’Leary had arrived at the residence prior to Boyer’s having set up

the camera in the alley, Boyer said that he was only able to videotape O’Leary

leaving the back door of Smith’s residence. Then Boyer played the videotape to

the jury, which he indicated showed O’Leary walking out of the back door of

Smith’s residence.

      {¶ 12} Once O’Leary left the residence at 233 Franklin Street, Boyer said

that he met the other two officers and O’Leary at the predetermined location, at

which time they bagged and tagged the suspected cocaine as evidence and

searched O’Leary for any additional contraband. Detective Boyer testified that

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Case No. 13-10-24



they did not find any other suspected controlled substance on O’Leary during the

search.

       {¶ 13} On cross-examination, Boyer acknowledged that he did not

personally observe Smith sell the drugs to O’Leary, since both the transactions had

taken place inside the residences. In addition, Boyer admitted that he did not

request any fingerprint testing on the baggies of drugs, but he said that that was

because the identity of the seller had never been in question. Boyer explained,

“The only time our unit would specifically ask for fingerprints and/or DNA is

when the identity of the suspect is in question and we don’t know who it is. In

this–in this, or in these investigations, we had him positively identified through a

photograph array. Plus, we purchased, on the second operation, from his residence

so identity wasn’t in question to us.”         Boyer said that based on the audio

recordings, O’Leary’s identification of Smith through a photograph array, and the

observation of O’Leary going into Smith’s residence on January 11, 2009, they

believed that O’Leary had purchased the suspected cocaine from Smith.

       {¶ 14} Next, the confidential informant, Terry O’Leary, testified. O’Leary

explained that he had assisted the police by buying drugs from Smith twice in

January 2009.    He said that he had been paid for both transactions, and in

particular had received $75 for the second controlled-buy operation. With respect

to the second operation, O’Leary said that prior to going to the house that night, he

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had spoken to Smith about buying drugs again from him. O’Leary said that they

had discussed the amount of money and drugs, the type of drugs, and the time and

place of the transaction, which he said was to occur at 233 Franklin Street.

O’Leary testified that before walking to the target location, he had allowed the

officers to place an audio transmitter device on him, which had recorded the

transaction that night. O’Leary further said that when he arrived at the residence,

he and Smith discussed automobiles before they counted out the money and

exchanged it for the drugs. Finally, O’Leary stated that after receiving the drugs,

he left the residence and walked down the street and then was picked up by the

officers and taken back to the predetermined location.

       {¶ 15} State’s Exhibit 7 was the audio recording from the second operation

on January 11, 2009, which was played at trial. After the recording was played,

O’Leary identified all of the voices in the recording, and in particular O’Leary

identified the person who said, “Just give me two fifties, I’ll owe you 30,” as

Smith. O’Leary explained that at that point on the tape they were exchanging the

money for the drugs.

       {¶ 16} Overall, on both direct and cross-examination, O’Leary admitted to

having a criminal record, which included convictions for receiving stolen property

in 2007, failure to comply with the order or signal of a police officer in 2006, and



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two obstruction convictions and one theft conviction in 2002.         Nevertheless,

O’Leary identified Smith as the person who had sold him the drugs.

      {¶ 17} Finally, Smith took the stand and testified that he had never sold

crack cocaine to O’Leary. Smith admitted that his nickname was Parkay or PK,

but he stated that he had received the nickname when he was younger, from his

family. Smith explained that he was not even at the Minerva house on January 8,

2009. However, he admitted to living at 233 Franklin Street in January 2009 and

being the only male living at the residence at that time. With respect to the

controlled-buy transaction that took place on January 11, 2009, Smith explained:

             Honestly, I mean, I’m not going to sit here and try to make up
      a story or persuade you guys or any kind of way. But he never
      entered my house, for one. And anybody can walk into that door
      that he supposedly came out of. That is a back patio porch there.
      And that door is always open. On the side of that porch is another
      door to the main house. So anybody can come and go as they please
      into that door. And it’s kind of hard for me to explain him coming
      out of there because, like I said, I don’t know no more than what you
      guys do. All I know is what he said, the evidence that these people
      have right now, so–

Based on the above, the jury returned a verdict of guilty as to trafficking in crack

cocaine on the night of January 11, 2009.

      {¶ 18} On appeal, Smith argues that the only real issue in contention in the

case is whether he was the person who sold the drugs to the confidential

informant. Smith claims that the only evidence presented identifying him as the


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person who had sold the drugs was testimony from the confidential informant,

Terry O’Leary. However, Smith claims that O’Leary’s testimony was conflicting

and suspect. After reviewing the above evidence, we disagree and believe that

there was enough evidence presented to the jury that it was reasonable to believe

that Smith had been the one who had sold the crack cocaine to O’Leary.

      {¶ 19} Here, the confidential informant testified that he had purchased

crack cocaine from Smith on January 11, 2009. Boyer testified that the identity of

the seller had never been in question—that based on the audio recordings,

O’Leary’s identification of Smith through a photograph array, and the observation

of O’Leary going into Smith’s residence on January 11, 2009, they believed that

O’Leary had purchased the cocaine from Smith. Moreover, this transaction had

taken place at Smith’s residence. Smith even admitted that he was the only male

living in the residence at the time, and unlike the first controlled-buy operation,

Smith could not provide any explanation as to his actions the night of January 11,

2009. In addition, there was an audio recording of the transaction that was played

for the jury, along with corroborating testimony and a video that showed a man,

who was identified as the confidential informant, leaving Smith’s residence the

night of January 11, 2009.

      {¶ 20} Essentially, Smith’s arguments that his conviction was against the

manifest weight of the evidence are simply attacks based on the credibility of the

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confidential informant.    However, the confidential informant’s testimony and

credibility were matters for the trier of fact to weigh and determine, and the trier of

fact was free to accept or reject any and all of the evidence offered by Smith and

the state. Thompkins, 78 Ohio St.3d at 387. Based on the above evidence, we

cannot conclude that the jury clearly lost its way and created a manifest injustice

by finding Smith guilty of trafficking crack cocaine.

       {¶ 21} Smith additionally claims that the fact that he was found not guilty

of one count of trafficking but guilty of the other count of trafficking clearly

indicates that the jury lost its way, since the evidence presented on the two

operations was identical. As Smith states in his appellate brief, there was “no

apparent reason for the jury to disbelieve the testimony of Mr. O’Leary that he

bought drugs from the defendant January 8 and yet apparently believe his

testimony that he bought drugs [from the defendant] on January 11.”

       {¶ 22} “Consistency between verdicts on several counts of an indictment is

unnecessary where the defendant is convicted on one or some counts and acquitted

on others; the conviction generally will be upheld irrespective of its rational

incompatibility with the acquittal.” State v. Trewartha, 165 Ohio App.3d 91,

2005-Ohio-5697, 844 N.E.2d 1218, ¶ 15, citing State v. Adams (1978), 53 Ohio

St.2d 223, 374 N.E.2d 137, vacated in part on other grounds in Adams v. Ohio,

439 U.S. 811, 99 S.Ct. 69, 58 L.Ed.2d 103. Every count of a multiple-count

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indictment is considered to be distinct and independent of all the other counts;

therefore, inconsistent verdicts on different counts do not justify overturning a

verdict of guilt. Id., citing State v. Hicks (1989), 43 Ohio St.3d 72, 78, 538 N.E.2d

1030; State v. Brown (1984), 12 Ohio St.3d 147, 465 N.E.2d 889, syllabus; State v.

Washington (1998), 126 Ohio App.3d 264, 276, 710 N.E.2d 307. As the Ohio

Supreme Court has stated, “the sanctity of the jury verdict should be preserved and

could not be upset by speculation or inquiry into such matters to resolve the

inconsistency.” State v. Lovejoy (1997), 79 Ohio St.3d 440, 444, 683 N.E.2d

1112.

        {¶ 23} Thus, the fact that Smith was found guilty of one count of trafficking

but not the other count of trafficking cannot be attributed solely to the jury’s

insecurity, confusion, or doubts as to the adequacy of evidence on the issue of

identification. Despite Smith’s claims that the evidence presented in regard to the

two operations was identical, we find that there were notable differences in the

evidence regarding the first controlled-buy operation and the second. First and

foremost, the two operations took place on two separate days and occurred at two

different places. Second, even though O’Leary testified that it was Smith who had

sold him the drugs during the first operation, O’Leary also said that there had been

some kind of party going on when he arrived at the house and that there had been

at least four or five other people there along with Smith. Furthermore, unlike the

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second controlled-buy operation, which had taken place at Smith’s residence, there

was nothing to directly connect Smith to the residence at 26 Minerva Street.

Finally, only with respect to the first controlled-buy operation were there parts of

O’Leary’s testimony that directly contradicted with Boyer’s testimony. Thus, it is

clear that there were credibility issues concerning the first controlled-buy

operation that were not present in the second controlled-buy operation.

       {¶ 24} As illustrated above, there were notable differences in the evidence

as to the two controlled-buy operations; however, we are not permitted to

speculate about the reason for the inconsistency in considering the validity of a

verdict.   We find that the fact that Smith was found guilty of one count of

trafficking but not the other count of trafficking is not enough in and of itself to

undermine the final judgment of the trafficking count of which Smith was

convicted by the jury, especially since that conviction, as we stated above, was not

against the manifest weight of the evidence.

       {¶ 25} Smith’s first assignment of error is, therefore, overruled.

                       ASSIGNMENT OF ERROR NO. II

             The court erred when it responded to a question from the jury
       with an answer in violation of the principles set forth in State v.
       Howard and compounded that error by failing to review the question
       and answer with counsel.




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       {¶ 26} In his second assignment of error, Smith argues that the trial court

erred when it responded to a jury question without giving the appropriate

supplemental instruction to the jury as required by the Ohio Supreme Court in

State v. Howard (1989), 42 Ohio St.3d 18, 537 N.E.2d 188 (“Howard

instruction”). Smith additionally claims that the trial court erred by failing to

review the question and answer with counsel prior to responding to the jury’s

question.

       {¶ 27} According to the trial transcripts, the jury went into deliberations at

12:15 p.m. on May 11, 2010, and rendered its verdict at 7:00 p.m. that same day.

Between 12:15 p.m. and 7:00 p.m. the jury submitted four questions to the trial

court. For the first two questions, the trial court called in counsel and discussed

the jury’s questions and its proposed answers on the record. With respect to the

fourth jury question, the trial court called in counsel again and presented its

proposed answer to the parties; however, after discussing the fourth jury question

and proposed answer, the trial court informed the parties that the jury had

presented a third question to the trial court and that it had dealt with the question

without involving counsel. In particular, the trial court stated that the jury had




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asked, “What do we do now?” and it informed counsel that it had responded,

“Keep deliberating.”1

        {¶ 28} In general, “any communication with the jury by either the judge or

court personnel, outside the presence of the defendant or parties to the case, is

error and may warrant a new trial.” State v. Cook, 10th Dist. No. 05AP-515,

2006-Ohio-3443, ¶ 35, citing State v. Schiebel (1990), 55 Ohio St.3d 71, 83, 564

N.E.2d 54. “Such private communication outside the presence of the defendant

does not, however, create a conclusive presumption of prejudice. * * * The

communication must have been of a substantive nature and in some way

prejudicial to the party complaining.” Schiebel at 84. Thus, if the communication

is not substantive, then the error is considered harmless. Cook at ¶ 35, citing State

v. Allen (1995), 73 Ohio St.3d 626, 630, 653 N.E.2d 675.                             In particular,

substantive matters have been found to include discussions concerning “‘legal

issues involved in the case, applicable law, the charge to the jury, or a fact in

controversy.’” Cook at ¶ 36, quoting Orenski v. Zaremba Mgt. Co., 8th Dist. No.

80402, 2002-Ohio-3101. Nevertheless, even if the communication involves a

substantive issue, the defendant still must demonstrate that he was prejudiced by

the communication. Cook, 2006-Ohio-3443, at ¶ 36, citing State v. Crumedy, 8th

Dist. No. 84083, 2004-Ohio-6006.
1
  We note that neither party disputes the fact that the particular question and answer were given even
though the actual jury questions and answers were not included in the record.

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Case No. 13-10-24



       {¶ 29} While it may have been error for the trial court to answer the jury’s

question outside the presence of the parties, we note that Smith failed to object to

the trial court’s answer to the jury when he was informed of the trial court’s

actions and failed to request that a Howard instruction be given. Therefore, we

find that Smith has waived all but plain error. See Crim.R. 52(B). Plain error

occurs if but for the error, the outcome of the trial would have been different.

State v. Nicholas (1993), 66 Ohio St.3d 431, 436, 613 N.E.2d 225.                After

reviewing the record, we find that while it may have been error to handle the

question outside the presence of the parties, the trial court’s response was not

substantive. The trial court did not address any applicable law in the case, any fact

in controversy, nor any legal issue. Therefore, absent a showing of prejudice, the

communication is considered harmless error.

       {¶ 30} Smith claims that there was clearly prejudice in this case since the

jury found him guilty of one count of trafficking but not guilty of the other count

of trafficking based on the same exact evidence. However, as we discussed above,

there were notable differences in the evidence between the two counts, one of

which was the fact that the two counts dealt with two different transactions on two

separate and distinct dates and locations. Furthermore, the fact that there are

different verdicts on different counts does not justify overturning a verdict of guilt.



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       {¶ 31} In addition, Smith argues that this question implicated the need for a

supplemental charge to a deadlocked jury as required under Howard.                The

instruction formulated by the Ohio Supreme Court in Howard is to be given to a

jury, when after suitable deliberation, a “‘determination has been made that the

jury is deadlocked in its decision.’” State v. Gary (Mar. 30, 2000), 3d Dist. No. 5-

99-51, at *5, quoting State v. Minnis (Feb. 11, 1992), 10th Dist. No. 91AP-844. A

trial court’s decision to give a Howard instruction is within its discretion and will

not be reversed absent an abuse of discretion. State v. Lightner, 3d Dist. No. 6-09-

02, 2009-Ohio-4443, ¶ 11, citing State v. Thomas (Sept. 21, 2001), 2d Dist. No.

2000-CA-43, citing State v. King (Mar. 22, 2000), 7th Dist. No. 95 CA 163.

Furthermore, this court has previously stated that “[t]here is no bright line rule that

may be used to determine when a jury is deadlocked and when the supplemental

charge should be read to the jury.” Gary at *5, citing Minnis. See also Lightner at

¶ 9-16. However, in this particular case, contrary to Smith’s arguments, the jury

question did not state that the jury was deadlocked; rather, the question was

general and non-descript – far from a declaration that they were deadlocked.

Because we are unable to determine from its face the precise nature of the jury’s

question, we cannot say that the trial court abused its discretion in failing to give

the supplemental instruction for deadlocked juries set forth in Howard.

       {¶ 32} Therefore, Smith’s second assignment of error is overruled.

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       {¶ 33} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                Judgment affirmed.

       SHAW and WILLAMOWSKI, JJ., concur.




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