[Cite as State v. Valdez, 2018-Ohio-1768.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 12-17-11

        v.

RENE A. VALDEZ,                                           OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Putnam County Common Pleas Court
                            Trial Court No. 2016 CR 80

                                      Judgment Affirmed

                               Date of Decision: May 7, 2018




APPEARANCES:

        Michael J. Short for Appellant

        Katherine G. Porter for Appellee
Case No. 12-17-11


ZIMMERMAN, J.

      {¶1} Defendant-appellant, Rene Valdez (“Valdez”), appeals the October 25,

2017 judgment of the Putnam County Common Pleas Court sentencing him to

twelve (12) years in prison after he was found guilty of Possession of Drugs (3

Counts), Trafficking in Drugs, Illegal Assembly or Possession of Chemicals for the

Manufacture of Drugs, and Having Weapons While Under Disability.

                          Facts and Procedural History

      {¶2} On November 2, 2016, Valdez was indicted on seven criminal charges

in Putnam County: Count One, Possession of Drugs (Cocaine), in violation of R.C.

2925.11(A) & (C)(4)(e), a felony of the first degree; Count Two, Possession of

Drugs (Methamphetamine), in violation of R.C. 2925.11(A) & (C)(1)(b), a felony

of the third degree; Count Three, Possession of Drugs (Oxycodone), in violation of

R.C. 2925.11(A) & (C)(1)(b), a felony of the third degree; Count Four, Trafficking

in Drugs, in violation of R.C. 2925.03(A)(2) & (C)(4)(f), a felony of the third

degree; Count Five, Illegal Assembly or Possession of Chemicals for the

Manufacture of Drugs, in violation of R.C. 2925.041, a felony of the third degree;

Count Six, Tampering with Evidence, in violation of R.C. 291.12(A)(2), a felony of

the third degree; and Count Seven, Having Weapons While Under a Disability, in

violation of R.C. 2923.13(A)(3), a felony of the third degree.       A forfeiture

specification, in violation of R.C. 2941.1417, was also contained in Count Four.


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The charges stem from an October 15, 2016 traffic stop in Putnam County, Ohio.

Valdez was a passenger in the vehicle involved in the traffic stop.

       {¶3} Valdez pled not guilty to all charges and a jury trial was scheduled. On

September 25, 2017 the case proceeded to a jury trial. At trial, in its case in chief,

the State called Deputy Jared West (“Dep. West”), Det. Marvin Schweibert (“Det.

Schweibert”), Todd Pingle, (“Pingle”), Deputy Troy Stevenson (“Dep. Stevenson”),

Roy Sargent (“Sargent”), Aaron Giesige (“Giesige”), all with the Putnam County

Sheriff’s Office. The State’s witnesses also included: Samuel Fortener “(Fortener”),

with the Ohio Attorney General’s Bureau of Criminal Investigation; Agent Ben

Williams (“Williams”), with the Multi-Area Narcotics task force; Investigator

Steven Mueller (“Mueller”), with the Defiance County Sheriff’s Office; and Colleen

Wiseman, with the Multi-Area Narcotics task force

       {¶4} After the State presented its case, Valdez made a Rule 29 motion for

acquittal on all counts. The trial court granted the motion only as to Count 6.

Thereafter, Valdez presented his defense through the testimonies of Christina

Valdez (“Christina”), Dakota Valdez (“Dakota”), Tasha Ellis (“Ellis”) and Chelsea

Campbell (“Campbell”). However, Valdez did not testify.

       {¶5} The jury found Valdez guilty on all of the remaining charges, including

the forfeiture specification and the case was scheduled for sentencing. Ultimately,

the trial court sentenced Valdez to an aggregate prison term of twelve years,


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journalized by its journal entry of October 25, 2017. It is from this judgment entry

that Valdez appeals asserting the following assignments of error for our review.

                             Assignment of Error No. I

       THE CONVICTIONS ARE AGAINST THE MANIFEST
       WEIGHT OF THE EVIDENCE

                            Assignment of Error No. II

       THE PROSECUTOR’S COMMENTS DURING CLOSING
       ARGUMENT     CONSTITUTED   PROSECUTORIAL
       MISCONDUCT.

                             First Assignment of Error

       {¶6} In his first assignment of error, Valdez claims that his guilty convictions

are against the manifest weight of the evidence. Specifically, Valdez argues that the

jury lost its way in evaluating the evidence against him. We disagree.

                                 Standard of Review

       {¶7} When determining whether a conviction is against the manifest weight

of the evidence, we “will not reverse a conviction where there is substantial evidence

upon which the court could reasonably conclude that all the elements of an offense

have been proven beyond a reasonable doubt”. State v. Eskridge, 38 Ohio St.3d 56

(1988), at paragraph two of syllabus.

       {¶8} In reviewing whether the trial court’s judgment was against the weight

of the evidence, the appellate court sits as the “thirteenth juror” and examines the

conflicting testimony. State v. Thompkins, 78 Ohio St.3d 380, 387. In taking on

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this role, this court, reviewing the entire record, weighs the evidence and all

reasonable inferences, considers the credibility of witnesses and determines

whether, in reviewing the evidence, the trial court clearly lost its way and created

such a manifest miscarriage of justice that the conviction must be reversed. Id. In

making this analysis, we must be mindful that determinations of credibility and

weight of the testimony remain within the jurisdiction of the trier of fact. State v.

DeHass, 10 Ohio St.2d 230, paragraph one of the syllabus.

       {¶9} When applying the manifest weight standard, “[o]nly in exceptional

cases, where the evidence ‘weighs heavily against the conviction’, should an

appellate court overturn the trial court’s judgment.” State v. Haller, 3d Dist. Allen

No. 1-11-34, 2012-Ohio-5233, ¶9, quoting State v. Hunter, 131 Ohio St.3d 67,

2011-Ohio-6524, ¶119. “Weight of the evidence concerns ‘the inclination of the

greater amount of credible evidence, offered in a trial, to support one side of the

issue rather than the other. It indicates clearly to the jury that the party having the

burden of proof will be entitled to their verdict, if, on weighing the evidence in their

minds, they shall find the greater amount of credible evidence sustains the issue

which is to be established before them. Weight is not a question of mathematics,

but depends on its effect in inducing belief.’ ” (Emphasis omitted.) Thompkins,

quoting Black’s Law Dictionary 1594 (6th Ed.1990).




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      {¶10} Furthermore, “[t]o reverse a judgment of a trial court on the weight of

the evidence, when the judgment results from a trial by jury, a unanimous

concurrence of all three judges on the court of appeals panel reviewing the case is

required.” Thompkins, at paragraph 4 of the syllabus, citing Ohio Constitution,

Article IV, Section 3(B)(3).

                                     Analysis

      {¶11} In this case, the jury was able to view and hear the testimony of all

witnesses, which included the testimony of Valdez’s half-brother and co-defendant,

Dakota. Moreover, the jury was able to see and hear the testimony of Deputy West

and Deputy Stevenson, along with additional law enforcement officers. As such,

the jurors were in the position to believe the testimony offered by the State’s

witnesses. State v. Bates, 12th Dist. Butler No. CA2009-06-174, 2010-Ohio-1723,

¶11, quoting State v. Bromagen, 12th Dist. Clermont No. CA2005-09-087, 2006-

Ohio-4429, ¶38 (“It is well-established that ‘[w]hen conflicting evidence is

presented at trial, a conviction is not against the manifest weight of the evidence

simply because the jury believed the prosecution testimony.’”).

      {¶12} In our review of the record, the State presented competent and credible

evidence to the jury to convict Valdez of possession of cocaine (Count One);

possession of methamphetamine (Count Two); possession of oxycodone (Count

Three); trafficking in drugs (Count Four); illegal possession of chemicals for the


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manufacture of drugs (Count Five); having weapons while under a disability (Count

Seven); as well as the forfeiture specification in Count Four.

       {¶13} The record reveals that Valdez was a passenger in a vehicle driven by

Dakota Valdez when Dep. West initiated a traffic stop on October 15, 2016. During

the stop, Valdez provided a false name and social security number to Dep. West.

(Tr. Vol. I, pgs. 207-210; Vol. II, pgs. 7-10). A consent to search the stopped vehicle

was obtained by Dep. West. The evidence discovered during the search included a

black computer bag (which Valdez claimed ownership of), a scale, a jug of acetone,

a bottle of inositol powder and a bag of cell phones with the batteries removed.

State’s witnesses testified that the scale, acetone and inositol powder are known to

law enforcement as common items used in the manufacturing of illegal drugs. (Tr.

Vol. I, pgs. 21-22; Vol. II, pgs. 135-136, 253). Further, Det. West testified that the

evidence found on the cell phones located in the vehicle contained messages of drug

slang, photos of large amounts of money, and photos of Valdez. (Tr. Vol. II, pgs.

56-57).

       {¶14} Also testifying for the State was Roy Sargent with the Putnam County

Sheriff’s Office. Sargent testified that he reviewed Valdez’s taped telephone

conversations that occurred when (Valdez) was being held in the Putnam County

Jail. Sargent stated that Valdez had multiple phone conversations with Alyssa

(Valdez’s sister), telling her that “he didn’t have anything to worry about because


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Dakota was going to take the blame for everything” (regarding the drug charges).

Additionally, Sargent’s testimony included the contents of a phone call between

Valdez and a female wherein Valdez expressed concern that Dakota may testify

against him. (Tr. Vol. III, pg. 156).

       {¶15} Moreover, the State produced several witnesses with the Multi-Area

Narcotics Task Force to educate the jury of “drug slang”, the materials used in the

manufacturing of illegal drugs, and the pricing of drugs. As such, the State provided

the jury with sufficient evidence as to the charges set forth in the indictment arising

from Valdez’s encounter with police on October 15, 2016.

       {¶16} In our review, we find competent and credible evidence exists in the

record from which the jury could find Valdez guilty on the charges beyond a

reasonable doubt. Accordingly, in reviewing the record we cannot find that the jury

lost its way and that the convictions should be reversed. Valdez’s first assignment

of error is overruled.

                             Assignment of Error No. II

       {¶17} In his second assignment of error, Valdez claims the prosecutor’s

comments made during closing arguments prejudiced his right to a fair trial.

Specifically, Valdez asserts the State’s comments to the jury during closing

arguments constitute prosecutorial misconduct. We disagree.




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                                  Standard of Review

       {¶18} “The test for prosecutorial misconduct is whether the remarks were

improper and, if so, whether they prejudicially affected the accused’s substantial

rights”. State v. Liles, 3d Dist. Allen No. 1-14-61, 2015-Ohio-3093, ¶31, citing

State v. Smith, 14 Ohio St.3d 13, 14. “In making this determination, an appellate

court should consider several factors: (1) the nature of the remarks, (2) whether an

objection was made by counsel, (3) whether corrective instructions were given by

the court, and (4) the strength of the evidence against the defendant.” State v

Braxton, 102 Ohio App.3d 28, 41 (1995).

       {¶19} Furthermore, “‘[t]o establish prejudice, a defendant must show that a

reasonable probability exists that, but for the prosecutor’s improper remarks, the

result of the proceeding would have been different. Thus, “[n]ot every intemperate

remark by counsel can be a basis for reversal.”’” Id., quoting State v. Porter, 4th

Dist. Meigs No. 10CA15, 2012-Ohio-1526, ¶20, quoting State v. Landrum, 53 Ohio

St.3d 107, 112 (1990).

                                       Analysis

       {¶20} Prosecutorial misconduct is generally not grounds for reversal unless

it so taints the proceedings as to deprive the defendant a fair trial. State v. Johns, 3d

Dist. Seneca Nos. 13-04-23, 13-04, 24, 13-04-25, 2005-Ohio-1694, ¶25. Where it

is clear beyond a reasonable doubt that the jury would have found the defendant


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guilty, even absent the alleged misconduct, the defendant has not been prejudiced,

and his conviction will not be reversed.        See State v. Underwood, 2d Dist.

Montgomery No. 24186, 2011-Ohio-5418, ¶21. When considering whether certain

remarks constitute prosecutorial misconduct, a reviewing court must determine “(1)

whether the remarks were improper and (2) if so, whether the remarks prejudicially

affected the accused’s substantial rights.” State v. Jackson, 107 Ohio St.3d 300,

2006-Ohio-1, ¶141, citing Smith, supra. In Jackson, the Ohio Supreme Court noted

that:

        “[t]he touchstone of analysis ‘is the fairness of the trial, not the
        culpability of the prosecutor.’ This court will not deem a trial unfair
        if, in the context of the entire trial, it appears beyond a reasonable
        doubt that the jury would have found the defendant guilty even
        without the improper comments”. Jackson, ¶12.

        {¶21} Furthermore, in reviewing allegations of prosecutorial misconduct, as

it relates to closing arguments, “[p]arties have wide latitude in their closing

statements, particularly ‘latitude as to what the evidence has shown and what

inferences can be drawn from the evidence.’”. State v. Plott, 3d Seneca Nos. 13-

15-39, 13-15-40, 2017-Ohio-38, ¶127, citing State v. Wolff, 7th Dist. Mahoning No.

07MA166, 2009-Ohio-7085, quoting State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-

6266.

        {¶22} In this case, Valdez alleges the following statement made by the

prosecutor during closing arguments denied him of a fair trial:


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       “The Defendant had conversations while he was housed at the
       facility here in Putnam County, and in those conversations, what
       did Detective Sargent say he talked about? He talked about being
       concerned that Dakota was going to turn on him. Well, what’s
       Dakota going to turn on him for and turn him in for if he didn’t
       do anything? The Defendant made the statement in one of those
       conversations, I’ll take a plea of four years. Why take a plea?”
       (Tr. Vol. III, Pg. 212).

       {¶23} Regarding Valdez’s allegation, we begin by noting that defense

counsel objected to the statement and the objection was sustained by the trial judge.

Further, the trial court immediately cautioned the jury, and issued a curative

instruction to the jurors to disregard the prosecutor’s comment. Nevertheless,

Valdez suggests that the prosecutor was commenting on a plea deal between Valdez

and the State which could constitute prosecutorial misconduct. We find otherwise.

In our review, it is evident that the prosecutor was commenting upon Valdez’s jail

conversations (as testified to by Sargent, see generally Tr. Pg. 156), wherein Valdez

stated he would only consider a plea deal if he were to receive four years. The

record is void of any plea negotiations between Valdez and the State. Thus,

Valdez’s jailhouse statements, while objectionable, were not plea negotiations,

merely Valdez’s opinions of an acceptable one. As such we find that the comments

of the prosecutor do not rise to the level of misconduct and the trial judge

appropriately disposed of the prosecutor’s comment through a curative instruction.

       {¶24} Accordingly, after reviewing the record, including the closing

arguments, specifically the portion cited by Valdez on appeal, we find no error rising

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to the level of prosecutorial misconduct.      Moreover, even if the prosecutor’s

comments were questionable, (which we find the trial judge correctly addressed),

Valdez has presented no evidence that the result of his trial would have been

different but the for the prosecutor’s comments. See State v. Pickens, 141 Ohio

St.3d 462, 2014-Ohio-5445. Thus, we find Valdez received a fair trial and his

second assignment of error is not well taken and overruled.

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

particular assignments of error, we affirm the judgment of the trial court.

                                                                Judgment Affirmed

SHAW and PRESTON, J.J., concur.

/jlr




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