[Cite as State v. Pierce, 2018-Ohio-3967.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                         LAKE COUNTY, OHIO


STATE OF OHIO,                                          :             OPINION

                 Plaintiff-Appellee,                    :
                                                                      CASE NO. 2018-L-020
        - vs -                                          :

TIARVRIO PIERCE,                                        :

                 Defendant-Appellant.                   :


Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2017 CR
000534.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor, and Jennifer A. McGee, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (For Plaintiff-Appellee).

Charles R. Grieshammer, Lake County Public Defender, and Vanessa R. Clapp,
Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For
Defendant-Appellant).


DIANE V. GRENDELL, J.

        {¶1}     Defendant-appellant,        Tiarvrio       Pierce,    appeals   his   convictions   for

Trafficking and Possession following a jury trial in the Lake County Court of Common

Pleas. The issue before this court is whether convictions for Trafficking and Possession

are supported by sufficient evidence and/or against the manifest weight of the evidence

where the defendant’s DNA is one of several contributors’ DNA found on the evidence

but the defendant is implicated in the crimes by other circumstantial evidence. For the

following reasons, we affirm the decision of the court below.
        {¶2}   On May 12, 2017, the Lake County Grand Jury indicted Pierce for the

following: Trafficking in Cocaine (Count 1), a felony of the third degree in violation of

R.C. 2925.03(A)(2); Possession of Cocaine (Count 2), a felony of the fourth degree in

violation of R.C. 2925.11; Trafficking in Marijuana (Count 3), a felony of the fourth

degree in violation of R.C. 2925.03(A)(2); Aggravated Trafficking in Drugs (Count 4), a

felony of the third degree in violation of R.C. 2925.03(A)(2); and Aggravated Possession

of Drugs (Count 5), a felony of the fifth degree in violation of R.C. 2925.11. All Counts

of the Indictment included Forfeiture Specifications pursuant to R.C. 2941.1417 and

R.C. 2981.04.

        {¶3}   On June 2, 2017, Pierce was arraigned and entered a plea of “not guilty”

to the charges in the Indictment.

        {¶4}   On November 6 and 7, 2017, Pierce’s case was tried to a jury.          The

following testimony was given on behalf of the State:

        {¶5}   Officer Richard Smith of the Mentor Police Department testified that, at

approximately 4:00 a.m. on October 8, 2016, he responded to a dispatch regarding an

impaired driver.   Smith located the vehicle, registered to Daroni Williams, traveling

“quite fast” northbound on Center Street. Smith followed the vehicle onto Edgewood

Road and Melshore Drive.       The vehicle came to a stop on Melshore near Fairfax

Elementary School and an African-American male exited the vehicle and ran into a

backyard. Smith was unable to pursue the suspect.

        {¶6}   Other officers and a K-9 unit arrived on the scene. A search of the area

revealed two plastic baggies, a dollar bill, and a cell phone by a chain-link fence around

the yard of a house on Meadowdale Drive, west of the yard into which the suspect had

fled.   One of the baggies held smaller baggies containing individual rocks of crack

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cocaine. The other baggie held suspected heroin. On the night in question, several

phone calls had been made and text messages sent from the cell phone to Alexandria

Fourqurean, a resident of 6310 Melshore Drive.

        {¶7}     Inside the vehicle, two baggies of marijuana were found.

        {¶8}     Outside the vehicle, a black cloth or do-rag was found by the driver’s side

door.

        {¶9}     Kimberly Gilson, a forensic analyst at the Lake County Crime Laboratory,

testified that one of the baggies recovered near the fence contained 5.9 grams of

cocaine (the larger baggie contained 3.69 grams and the remaining 2.21 grams was

divided up in twenty-two smaller baggies) and the other baggie contained 0.13 grams of

4F-PHP.        The baggies recovered from the vehicle contained 0.72 grams and 0.73

grams of marijuana.

        {¶10} LeAnne Suchanek, the assistant laboratory director at the Lake County

Crime Laboratory, analyzed certain items of the State’s evidence for DNA: the plastic

baggies containing 4F-PHP, cocaine, and marijuana, the do-rag, and the vehicle

(samples taken from the driver’s door, steering wheel, and gear shift). Each piece of

evidence contained DNA from between two and four contributors with an exceedingly

high probability of Pierce being one of the contributors.1

        {¶11} Detective Jonathan Miller of the Mentor Police Department was assigned

to investigate the Pierce case. He made several attempts to contact the registered-

1. For the baggie containing 4F-PHP, there were three contributors with it being three quintillion times
more likely that Pierce was a contributor than there being three unidentified contributors. For the baggies
containing cocaine, there were two contributors with it being five hundred and ninety-three billion times
more likely that Pierce was a contributor than there being two unidentified contributors. For the baggie
containing marijuana, there were two contributors with it being one hundred and six septillion times more
likely that Pierce was a contributor than there being two unidentified contributors. For the do-rag there
were three contributors with it being one trillion times more likely that Pierce was a contributor than there
being three unidentified contributors. For the vehicle there were four contributors with it being four
quadrillion times more likely that Pierce was one of the contributors than there being four unidentified
contributors.
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owner of the vehicle, Daroni Williams, but was unable to do so.         He was able to

determine that Pierce was in a relationship with Fourqurean, a resident of Melshore

Drive, and that they have a child together.

       {¶12} Detective Miller interviewed Pierce twice on October 25, 2016, and

recordings of the interviews were played for the jury. Pierce admitted that Fourqurean

is his “girl” and that he stays with her. He claimed to have “no idea” about the vehicle.

He then claimed to “know what’s going on” and confided to the police: “My dude” was

dropping off some “shit” and/or “medicine” to me at Fourqurean’s when he was pulled

over by the police. Pierce knew “what happened ‘cause [he] was on Melshore the

whole time when he [Pierce’s dude] came over at six in the morning.” Pierce claimed to

have been in his dude’s car many times but does not know his “real name” because that

is not the custom of “the streets.” The items being delivered that morning included his

cell phone and marijuana. Detective Miller asked about what he believed at the time to

be heroin but Pierce protested that it was not heroin: “I know what was in that bag, it

looked like heroin but that’s not heroin.” Finally, Pierce referred to a customer of his

own who would buy “hard,” “soft,” and “dog” from him. Detective Miller explained to the

jury that these were slang terms for crack cocaine, powder cocaine, and heroin

respectively.

       {¶13} Detective Miller testified that the vehicle stopped on Melshore Drive

approximately 300 feet from Fairfax Elementary School and the baggies by the fence

were approximately 500 feet from school property. He also testified that the drugs

recovered were packaged in a way “synonymous with drug trafficking.”

       {¶14} On November 7, 2017, the jury returned a verdict of “guilty” to Counts 1

(Trafficking in Cocaine), 2 (Possession of Cocaine), 4 (Aggravated Trafficking in Drugs),

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and 5 (Aggravated Possession of Drugs), and a verdict of “not guilty” to Count 3

(Trafficking in Marijuana).

       {¶15} On December 14, 2017, a sentencing hearing was held.                Prior to

sentencing, the trial court merged Count 2 (Possession of Cocaine) into Count 1

(Trafficking in Cocaine) and Count 5 (Aggravated Possession of Drugs) into Count 4

(Aggravated Trafficking in Drugs). The court ordered Pierce to serve concurrent thirty-

six-month prison terms for Counts 1 and 4; advised him of optional post release control

for a period of up to three years; and ordered him to pay court costs and the costs of

prosecution.

       {¶16} On December 19, 2017, Pierce’s sentence was memorialized in a

Judgment Entry of Sentence.

       {¶17} On January 18, 2018, Pierce filed a Notice of Appeal. On appeal, Pierce

raises the following assignments of error:

       {¶18} “[1.] The trial court erred to the prejudice of the defendant-appellant when

it denied his motion for acquittal made pursuant to Crim.R. 29(A).”

       {¶19} “[2.] The trial court erred to the prejudice of the defendant-appellant when

it returned a verdict of guilty against the manifest weight of the evidence.”

       {¶20} The manifest weight of the evidence and the sufficiency of the evidence

are distinct legal concepts. State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, 857

N.E.2d 547, ¶ 44. With respect to the sufficiency of the evidence, “[t]he 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),




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paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979).

        {¶21} Whereas “sufficiency of the evidence is a test of adequacy as to whether

the evidence is legally sufficient to support a verdict as a matter of law, * * * weight of

the evidence addresses the evidence’s effect of inducing belief.” State v. Wilson, 113

Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing State v. Thompkins, 78

Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997). “In other words, a reviewing court

asks whose evidence is more persuasive -- the state’s or the defendant’s?” Id. An

appellate court considering whether a verdict is against the manifest weight of the

evidence must consider all the evidence in the record, the reasonable inferences, the

credibility of the witnesses, and whether, “in resolving conflicts in the evidence, the jury

clearly lost its way and created such a manifest miscarriage of justice that the conviction

must be reversed and a new trial ordered.” Thompkins at 387, quoting State v. Martin,

20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

        {¶22} In order to convict Pierce of Trafficking, it was necessary for the State to

prove, beyond a reasonable doubt, that he knowingly prepared for shipment, shipped,

transported, delivered, prepared for distribution, or distributed cocaine and 4F-PHP,

when he knew or had reasonable cause to believe that the cocaine and 4F-PHP were

intended for sale or resale. R.C. 2925.03(A)(2).2

        {¶23} Pierce contends that “the State failed to provide sufficient evidence to

prove beyond a reasonable doubt that he was the individual driving the car or was

anywhere near the car that evening” or “that Mr. Pierce was trafficking in drugs that

evening.” Appellant’s brief at 5 and 7. We disagree.



2. The Possession convictions would be lesser included offenses of the Trafficking convictions.
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      {¶24} The presence of Pierce’s DNA on the steering wheel, gear shift, and

driver’s side door of the vehicle as well as on the baggies of cocaine and 4F-PHP is

evidence, when viewed in a light most favorable to the prosecution, that Pierce was

transporting cocaine and 4F-PHP for sale. Further evidence that Pierce was driving the

vehicle and trafficking in drugs are the facts that an African-American male was

observed driving the car toward Pierce’s girlfriend’s home and abandoned the car near

the home; his cell phone was found in close proximity to the cocaine and 4F-PHP;

Pierce demonstrated knowledge of the drugs involved; and the cocaine and 4F-PHP

were found packaged and/or in amounts suggesting that they were intended for sale

rather than personal use.

      {¶25} Relevant to the weight of the evidence, Pierce notes the following: The

DNA of multiple contributors was found on the vehicle and the baggies and so it cannot

be concluded that Pierce was driving the vehicle or transporting the baggies on the

night in question. Pierce was never positively identified as the driver of the vehicle.

Pierce offered the exculpatory explanation that he was waiting at his girlfriend’s house

for a friend to deliver his cell phone and some marijuana.

      {¶26} Pierce raises many more arguments of a negative character. Pierce was

not the owner of the vehicle and the police never made contact with the actual owner.

Pierce was not positively identified as the driver of the vehicle. The police did not

contact or visit Fourqurean on the morning of the incident.        No scales or other

instruments associated with trafficking were found.

      {¶27} These arguments, while exposing weaknesses in the State’s case against

Pierce, fail to convince that the greater amount of credible evidence favored Pierce’s

acquittal or that the jury’s verdicts resulted in a miscarriage of justice.   The police

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attempted to find the registered owner of the vehicle, visiting the owner’s Cleveland

address, speaking with a neighbor and a woman claiming to be his mother, and leaving

messages. Against these efforts must be weighed Pierce’s thoroughly unconvincing

claim that the vehicle was being operated by “his dude,” who allows Pierce to use the

vehicle and delivers drugs for Pierce’s personal use, but about whose identity Pierce

can offer nothing. Also supporting the conclusion that Pierce was operating the vehicle

is the fact that it was being driven toward the address at which Pierce was residing at

high speeds by someone who appeared to be familiar with the streets in that part of

Mentor.

       {¶28} Although the DNA of multiple contributors was found on the various items

of evidence, Pierce’s own cell phone was found among the items. The possibility that

Pierce abandoned this phone with the drugs in flight from the police is at least as likely a

possibility (if not more) than that the phone was in possession of a friend delivering

drugs to Pierce.

       {¶29} The State’s case against Pierce is greatly strengthened by Pierce’s

incriminating statements to the police. Pierce changed his account of the matter to the

police during the course of the interview. Initially denying any knowledge of the vehicle,

Pierce claimed it belongs to a friend who allows him to use it once the police confronted

Pierce with possibility of his DNA being found in the vehicle. Also noteworthy was

Pierce’s knowledge that the drug suspected by the police to be heroin was not in fact

heroin, although it admittedly looked like heroin. The jury was entitled to draw its own

inference as to how Pierce knew what the drug looked like and its actual identity was

other than what it appeared to be. These statements to Detective Miller, while not

exactly a confession of guilt, are sufficiently incriminating to dispel reasonable doubts

                                             8
that Pierce might not have been driving the vehicle and transporting the items recovered

therefrom.

      {¶30} The assignments of error are without merit.

      {¶31} For the foregoing reasons, Pierce’s convictions for Trafficking and

Possession are affirmed. Costs to be taxed against the appellant.



CYNTHIA WESTCOTT RICE, J.,

TIMOTHY P. CANNON, J.,

concur.




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