[Cite as State v. Howell, 2013-Ohio-2979.]


                                       COURT OF APPEALS
                                  TUSCARAWAS COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                    JUDGES:
                                                 Hon. William B. Hoffman, P. J.
        Plaintiff-Appellee                       Hon. John W. Wise, J.
                                                 Hon. Patricia A. Delaney, J.
-vs-
                                                 Case No. 2012 AP 11 0068
TRACY A. HOWELL

        Defendant-Appellant                      OPINION




CHARACTER OF PROCEEDING:                      Criminal Appeal from the Court of Common
                                              Pleas, Case No. 2012 CR 06 0134


JUDGMENT:                                     Affirmed



DATE OF JUDGMENT ENTRY:                       July 9, 2013



APPEARANCES:

For Plaintiff-Appellee                        For Defendant-Appellant

MICHAEL J. ERNEST                             RODNEY A. BACA
ASSISTANT PROSECUTOR                          SCHNARS, BACA & INFANTINO
125 East High Avenue                          610 Market Avenue North
New Philadelphia, Ohio 44663                  Canton, Ohio 44702
Tuscarawas County, Case No. 2012 AP 11 0068                                                  2

Wise, J.

         {¶1}   Appellant Tracy A. Howell appeals his sentence and conviction on two

counts of trafficking in drugs following a bench trial in the Tuscarawas Court of Common

Pleas.

         {¶2}   Appellee is the State of Ohio.

                         STATEMENT OF THE FACTS AND CASE

         {¶3}   On June 8, 2012, the Tuscarawas County Grand Jury filed an Indictment

against Appellant Tracy A. Howell charging him with two counts of trafficking in drugs, in

violation of R.C. 2925.03, a felony of the fourth degree and a felony of the fifth degree.

         {¶4}   Count one of the indictment alleged that on September 13, 2011,

Appellant engaged in the sale or offered to sell Cocaine. Count two of the indictment

alleged that Appellant either sold or offered to sell a Schedule II controlled substance,

Oxycodone, in violation of R.C. 2925.03(A)(1).

         {¶5}   On August 28, 2012, a bench trial commenced in this matter.

         {¶6}   At the trial, the State presented testimony from its confidential informant,

James Hanshaw, Jr. (T. at 22). Hanshaw stated that in September, 2011, he worked as

a confidential informant for the LEAD Task Force. Id. Hanshaw stated that he was

provided $250.00 to purchase powder cocaine from Appellant. (T. at 31). According to

Hanshaw, he spoke with Appellant on September 13, 2011, and asked Appellant if he

had "anything". (T. at 27). Appellant replied that he could supply Hanshaw with powder

Cocaine. (T. at 29). Prior to the sale taking place, Hanshaw contacted Appellant and

advised him that he and another man were ready to make the purchase of the Cocaine,

and that he should come over to his apartment. (T. at 29). A short time later, Appellant
Tuscarawas County, Case No. 2012 AP 11 0068                                                  3


appeared at Hanshaw's apartment, sat down at a table with him, and exchanged money

for a white powder substance. (T. at 30).

       {¶7}   Subsequently, the substance was tested at B.C.I. & I., and it was

determined that it was not a controlled substance.

       {¶8}   At the trial, Appellant testified that the substance he exchanged during the

transaction was crushed aspirin that Hanshaw provided him. Appellant stated he was

allegedly approached by Hanshaw and was told that if he sold him the crushed aspirin

for $300.00, the two of them would be able to split the money. Appellant did not produce

any evidence to corroborate his story.

       {¶9}   At trial, Appellant admitted to selling Oxycodone as alleged in the

indictment.

       {¶10} Following    the   bench    trial,    both   sides   submitted   written   closing

summations. The Court later issued a Judgment Entry on September 13, 2013, finding

Appellant guilty on both counts of trafficking in drugs.

       {¶11} Appellant now appeals, assigning the following error for review:

                                ASSIGNMENT OF ERROR

       {¶12} “I. THE EVIDENCE REGARDING THE SEPTEMBER 2011 SALE IS

INSUFFICIENT TO SUSTAIN THE CONVICTION AND THE VERDICT IS AGAINST

THE MANIFEST WEIGHT OF EVIDENCE.”

                                              I.

       {¶13} In his sole Assignment of Error, Appellant argues that his conviction is

against the manifest weight and sufficiency of the evidence. We disagree.
Tuscarawas County, Case No. 2012 AP 11 0068                                                4


       {¶14} Our review of the constitutional sufficiency of evidence to support a

criminal conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979), which requires a court of appeals to determine whether

“after viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Id.; see also McDaniel v. Brown, 558 U.S. 120, 130 S.Ct. 665, 673, 175 L.Ed.2d

582(2010) (reaffirming this standard); State v. Fry, 125 Ohio St.3d 163, 926 N.E.2d

1239, 2010–Ohio–1017, ¶ 146; State v. Clay, 187 Ohio App.3d 633, 933 N.E.2d 296,

2010–Ohio–2720, ¶ 68.

       {¶15} Weight of the evidence addresses the evidence's effect of inducing belief.

State v. Thompkins, 78 Ohio St.3d 380, 386–387, 678 N.E.2d 541 (1997), superseded

by constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio

St.3d 89, 684 N.E.2d 668, 1997–Ohio–355. 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 sic.) Id. at 387, 678 N.E.2d 541,

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

       {¶16} When a court of appeals reverses a judgment of a trial court on the basis

that the verdict is against the weight of the evidence, the appellate court sits as a

“‘thirteenth juror’ ” and disagrees with the fact finder's resolution of the conflicting
Tuscarawas County, Case No. 2012 AP 11 0068                                                    5

testimony. Id. at 387, 678 N.E.2d 541, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102

S.Ct. 2211, 72 L.Ed.2d 652 (1982). However, an appellate court may not merely

substitute its view for that of the jury, but must find that “ ‘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.’ ” State v. Thompkins, supra, 78 Ohio St.3d at 387, quoting State v.

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist.1983). Accordingly,

reversal on manifest weight grounds is reserved for “ ‘the exceptional case in which the

evidence weighs heavily against the conviction.’ ” Id.

       {¶17} “[I]n determining whether the judgment below is manifestly against the

weight of the evidence, every reasonable intendment and every reasonable

presumption must be made in favor of the judgment and the finding of facts.

       {¶18} * * *

       {¶19} “If the evidence is susceptible of more than one construction, the

reviewing court is bound to give it that interpretation which is consistent with the verdict

and judgment, most favorable to sustaining the verdict and judgment.” Seasons Coal

Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn. 3, quoting 5

Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).

       {¶20} Appellant was charged and convicted of two counts of trafficking in drugs,

pursuant to R.C. §2925.03(A)(1), which provides:

       {¶21} “(A) No person shall knowingly do any of the following:

       {¶22} “(1) Sell or offer to sell a controlled substance;”

       {¶23} At trial, the trial court heard testimony from the State’s confidential

informant and viewed a video of Appellant in the C.I.’s apartment. Further, Appellant
Tuscarawas County, Case No. 2012 AP 11 0068                                                    6


himself admitted he sold crushed baby aspirin and Oxycodone pills to the C.I. (T. at

106, 109).

       {¶24} Appellant argues that the testimony of the C.I. in this case is suspect and

that he was “set up” by the C.I. in this case prior to the sale.

       {¶25} Ultimately, “the reviewing court must determine whether the appellant or

the appellee provided the more believable evidence, but must not completely substitute

its judgment for that of the original trier of fact ‘unless it is patently apparent that the fact

finder lost its way.’ ” State v. Pallai, 7th Dist. No. 07 MA 198, 2008–Ohio–6635, quoting

State v. Woullard, 158 Ohio App.3d 31, 2004–Ohio–3395. In other words, “[w]hen there

exist two fairly reasonable views of the evidence or two conflicting versions of events,

neither of which is unbelievable, it is not our province to choose which one we believe.”

State v. Dyke, 7th Dist. No. 99 CA 149, 2002–Ohio–1152, at ¶ 13, citing State v. Gore,

131 Ohio App.3d 197, 201, 722 N.E.2d 125(1999).

       {¶26} The weight to be given to the evidence and the credibility of the witnesses

are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d

212(1967), paragraph one of the syllabus; State v. Hunter, 131 Ohio St.3d 67, 2011–

Ohio–6524, 960 N.E.2d 955, ¶ 118. Accord, Glasser v. United States, 315 U.S. 60, 80,

62 S.Ct. 457, 86 L.Ed. 680 (1942); Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct.

843, 74 L.Ed.2d 646 (1983).

       {¶27} Here, the trial court, as the finder of fact, was free to accept or reject any

and all of the evidence offered by the parties and assess the witness's credibility. “While

the [finder of fact] may take note of the inconsistencies and resolve or discount them

accordingly * * * such inconsistencies do not render defendant's conviction against the
Tuscarawas County, Case No. 2012 AP 11 0068                                               7

manifest weight or sufficiency of the evidence”. State v. Craig, 10th Dist. No. 99AP–739,

1999 WL 29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. No. 95APA09–1236,

1996 WL 284714 (May 28, 1996). Indeed, the [judge] need not believe all of a witness'

testimony, but may accept only portions of it as true. State v. Raver, Franklin App. No.

02AP–604, 2003–Ohio–958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d

548 (1964); State v. Burke, 10th Dist. No. 02AP–1238, 2003–Ohio–2889, citing State v.

Caldwell (1992), 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992).

        {¶28} “[I]n determining whether the judgment below is manifestly against the

weight of the evidence, every reasonable intendment and every reasonable

presumption must be made in favor of the judgment and the finding of facts. * * *

        {¶29} “If the evidence is susceptible of more than one construction, the

reviewing court is bound to give it that interpretation which is consistent with the verdict

and judgment, most favorable to sustaining the verdict and judgment.” Seasons Coal

Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn. 3, quoting 5

Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).

        {¶30} Further, in the instant case, Appellant clearly could be convicted of

violating R.C. §2925.03(A)(1) for offering to sell cocaine, even though the substance

was actually aspirin, not cocaine. The Ohio Supreme Court has held that a conviction

for R.C. §2925.03(A)(1) can stand despite the fact that the substance offered as

cocaine was actually baking soda. State v. Chandler, 109 Ohio St.3d 223, 2006-Ohio-

2285, 846 N.E.2d 1234, ¶ 9. See also, State v. Cooper, 5th Dist. 11CA0125, 2012-Ohio-

3058.
Tuscarawas County, Case No. 2012 AP 11 0068                                        8


      {¶31} Viewing this evidence in a light most favorable to the prosecution, we

conclude that a reasonable person could have found beyond a reasonable doubt that

Appellant had committed the crimes charged.

      {¶32} We hold, therefore, the State met its burden of production regarding each

element of the crimes and, accordingly, there was sufficient evidence to support

Appellant’s convictions.

      {¶33} Appellant’s sole Assignment of Error is overruled.

      {¶34} For the foregoing reasons, the decision of the Court of Common Pleas of

Tuscarawas County, Ohio, is affirmed.


By: Wise, J.

Hoffman, P. J., and

Delaney, J., concur.



                                           ___________________________________


                                           ___________________________________


                                           ___________________________________

                                                                 JUDGES
JWW/d 0612
Tuscarawas County, Case No. 2012 AP 11 0068                                      9


         IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :        JUDGMENT ENTRY
                                          :
TRACY A. HOWELL                           :
                                          :
       Defendant-Appellant                :        Case No. 2012 AP 11 0068




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Tuscarawas County, Ohio, is affirmed.

       Costs assessed to Appellant.




                                          ___________________________________


                                          ___________________________________


                                          ___________________________________

                                                            JUDGES
