[Cite as State v. Watkins, 2018-Ohio-4722.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 12-18-08

        v.

ANDREW J. WATKINS, IV,                                    OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Putnam County Common Pleas Court
                          Trial Court No. 2017 CR 00054

                                      Judgment Affirmed

                          Date of Decision:   November 26, 2018




APPEARANCES:

        Kathryn Polonsky and Michelle Umana for Appellant

        Katherine G. Porter for Appellee
Case No. 12-18-08


ZIMMERMAN, J.

         {¶1} Defendant-Appellant, Andrew J. Watkins, IV (“Appellant”) appeals the

judgment of the Putnam County Common Pleas Court, convicting him of one count

of trafficking in drugs and one count of permitting drug abuse. On appeal, Appellant

argues that: 1) he was denied the effective assistance of counsel; 2) or, in the

alternative, that his trial counsel’s performance was objectively unreasonable and

prejudicial; 3) insufficient evidence was presented by the State to convict him; and

4) his conviction was against the manifest weight of the evidence. For the reasons

that follow, we affirm the judgment of the trial court.

                                        Factual Background

         {¶2} On January 18, 2017, Officer James Augustine (“Augustine”), of the

Multi-Area Narcotics Task Force (“MAN unit”), met with confidential informant

Richard Babcock (the “CI”) to set up a controlled buy of crystal methamphetamine

(“meth”). (Trial, 03/20/2018 Tr. at 80-81). The CI had advised Augustine that he

could buy meth from two individuals known as “AJ” and “Jeffro.” (Id. at 81).

During the course of his investigation, Augustine learned that “AJ” was the

Appellant and “Jeffro” was Jeff Staver (“Staver”).1 (Id.).




1
 Augustine testified that he worked with the Lima Task Force to identify AJ as Appellant. (Trial, 03/20/2018
Tr. at 81). In addition to working with the Lima Task Force, Augustine obtained a BMV photo of Appellant
and Facebook information that also identified “AJ” as Appellant. (Id. at 89).

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       {¶3} On the aforementioned date, the CI made a phone call to Appellant, in

Augustine’s presence, that Augustine recorded with the CI’s permission. (Id. at 84).

During the phone call, there was a purported drug offer by the Appellant to the CI

of “24 for 12,” which Augustine interpreted to be an offer to sell the CI 24 grams of

meth for $1,200. (Id. at 87). During the call, the CI and Appellant agreed to meet

at the McDonald’s in Ottawa, Ohio to complete the arranged drug buy. (Id. at 88).

       {¶4} After the call was completed, Augustine returned to his office to await

the time that the buy would occur. (Id. at 89). At approximately 1:40 p.m. that

afternoon, the CI contacted Augustine to inform him that the drug buy would occur

that afternoon. (Id. at 90). The CI also advised Augustine that the terms of the deal

had changed to 12 grams (of meth) for $600. (Id.). With that information,

Augustine searched the CI and his vehicle, outfitted him (the CI) with audio and

video equipment, and gave him cash to purchase the drugs. (Id. at 90-91).

       {¶5} When the CI arrived at McDonald’s, the Appellant phoned him and

attempted to change the location of the drug buy from Ottawa to Lima. (Id. at 92).

However, Appellant ultimately only changed the buy location from McDonalds to

the Shell Ottawa Party Mart (“Party Mart”), located across the street from

McDonald’s. (Id. at 93-94).

       {¶6} MAN unit agents surveilling the locations observed Staver exit a blue

Chevy Cobalt in the Party Mart parking lot. (Id. at 95). The vehicle was then parked


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in the McDonald’s parking lot across the street. (Id.). Robert Garcia, (“Garcia”) an

investigator with the MAN unit who conducted the drug buy surveillance, identified

Appellant as the driver of the blue Chevy Cobalt.2 (Id. at 126-27) Garcia further

testified that Appellant exited the vehicle and entered McDonald’s. (Id.). Staver

sold the CI drugs while the Appellant was inside McDonald’s. (Id. at 96). Notably,

Garcia testified that Appellant was not involved in the “hand-to-hand” transaction

that occurred at Party Mart, only Staver. (Id. at 101). After completing the drug

buy, Staver returned to the blue Chevy Cobalt. (Id. at 110).

         {¶7} After completing the transaction, the CI met Augustine at a

predetermined location. (Id. at 97). Augustine field tested the drugs, resulting in a

presumptive positive for meth, which weighed 12.2 grams. (Id.). Augustine then

transported the drugs to the MAN unit office and tagged it as evidence. (Id. at 98).

Thereafter, Deputy Todd Pingle with the Putnam County Sheriff’s MAN unit,

transported the drugs to the Bureau of Criminal Investigation (“BCI”) crime lab,

where it tested positive for meth. (Id. at 120-21; 160).

                                       Procedural Background

         {¶8} On September 27, 2017, Appellant was indicted on two separate counts

by the Putnam County Grand Jury, for: Count One, Trafficking in Drugs, in

violation of R.C. 2925.03(A)(1)&(C)(1)(c), a felony of the third degree; and Count


2
 Garcia testified that he personally identified Appellant as the driver of the blue Chevy Cobalt. (See, Trial,
03/20/2018 Tr. at 128).

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Two, Permitting Drug Abuse, in violation of R.C. 2925.13(A), a felony of the fifth

degree. (Doc. No. 1). Appellant was arraigned on October 10, 2017, assigned court-

appointed counsel, and entered “not guilty” pleas to both counts in the indictment.

(Doc. No. 10; Arraignment, 10/10/2017 Tr. at 6-7).

       {¶9} On November 21, 2017, Appellant (through counsel) filed a notice of

substitution of counsel, indicating that he had retained his own counsel. (Doc. No.

21). On the same date, Appellant’s new attorney filed a motion to continue the

previously scheduled pre-trial, due to a scheduling conflict. (Id.). The trial court

granted the continuance and the pre-trial was rescheduled for January 10, 2018.

(Doc. No. 27).

       {¶10} At the final pre-trial, the State advised the trial court that a plea

agreement had not been reached, and that the matter would proceed to trial. (Final

Pre-Trial, 02/26/2018 Tr. at 5).

       {¶11} Appellant’s jury trial commenced on March 20, 2018. (Doc. Nos. 44,

45, 47; Trial, 03/20/2018 Tr. at 4). At the conclusion of trial, the jury returned

verdicts of guilty to both counts as indicted. (Doc. No. 47). The trial court ordered

a pre-sentence investigation and Appellant’s sentencing hearing was scheduled for

May 4, 2018. (Id.).

       {¶12} On March 21, 2018, Teva Madison (apparently acting on behalf of

Appellant), filed a letter in the trial court indicating that Appellant wished to fire his


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trial counsel, and requested a bond hearing.      (Doc. No. 50).     In response to

Appellant’s motion, Appellant’s trial counsel also filed a motion for a bond hearing,

which the trial court denied. (Doc. Nos. 52, 53). On May 4, 2018, the trial court

sentenced Appellant to thirty (30) months in prison for Count One, and twelve (12)

months in prison for Count Two. (Doc. No. 59). The trial court ordered that the

prison terms be served concurrently to each other, for a total term of incarceration

of thirty (30) months. (Id.).

       {¶13} After sentencing, Appellant’s trial counsel filed a “motion to withdraw

as attorney of record” and a “motion to appoint attorney for purpose of defendant

appeal.” (Doc. Nos. 65, 66). The trial court granted trial counsel’s “motion to

withdraw as attorney of record,” and appointed the Ohio Public Defender to

represent Appellant in his appeal. (Doc. Nos. 67, 69).

       {¶14} Appellant timely appeals, and presents the following assignments of

error for our review:

                        ASSIGNMENT OF ERROR NO. I

       MR. WATKIN’S [SIC] TRIAL COUNSEL PERFORMED SO
       DEFICIENTLY AS TO DENY HIM EFFECTIVE
       ASSISTANCE OF COUNSEL AND AS TO EFFECTIVELY
       CONCEDE HIS GUILT TO THE JURY.

                        ASSIGNMENT OF ERROR NO. II

       ALTERNATIVELY, COUNSEL’S PERFORMANCE WAS
       OBJECTIVELY UNREASONABLE AND IT PREJUDICED
       MR. WATKINS, DENYING HIM A FAIR TRIAL.

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                      ASSIGNMENT OF ERROR NO. III

      MR. WATKINS’ CONVICTIONS VIOLATED DUE PROCESS
      AS THE STATE USED LEGALLY INSUFFICIENT
      EVIDENCE TO CONVICT HIM.

                      ASSIGNMENT OF ERROR NO. IV

      MR. WATKINS’ CONVICTION WAS AGAINST THE
      MANIFEST WEIGHT OF THE EVIDENCE AS THE JURY
      CLEARLY LOST ITS WAY IN RENDERING A GUILTY
      VERDICT.

                      Appellant’s First Assignment of Error

      {¶15} In his first assignment of error, Appellant argues that his trial counsel’s

performance was so deficient that it amounted to a “structural defect” at trial. We

disagree.

                                Standard of Review

      {¶16} “‘The right to counsel is the right to effective assistance of counsel.’”

State v. Blair, 171 Ohio App.3d 702, 2007-Ohio-2417, 872 N.E.2d 986, ¶ 13 quoting

Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052 (1984). “Generally,

a properly licensed attorney practicing in this state is presumed to be competent.”

Id. “However, in rare situations when counsel has done nothing more in the

preparation of the case than be a warm body, prejudice is presumed.” Id.




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                                       Analysis

       {¶17} “In United States v. Cronic, ‘the United States Supreme Court * * *

determined that prejudice should be presumed in circumstances that are so likely to

prejudice the accused that the cost of litigating their effect in a particular case is

unjustified.’” (Emphasis sic). State v. Loman, 3rd Dist. Auglaize No. 2-13-17,

2014-Ohio-1570, ¶ 24 quoting State v. Drake, 8th Dist. Cuyahoga No. 93761, 2010-

Ohio-1065, ¶ 8 quoting United States v. Cronic, 466 U.S. 648, 658, 104 S.Ct. 2039,

(1984). Prejudice is presumed in cases where the accused was denied counsel at “a

critical stage of his trial,” where counsel fails to subject the prosecution’s case to

“meaningful adversarial testing,” and where a criminal defendant had been “denied

the right of effective cross-examination.” Cronic, 466 U.S. 648, 658-59, 104 S.Ct.

2039 (1984). Furthermore, “[c]ircumstances of that magnitude may be present on

some occasions when although counsel is available to assist the accused during trial,

the likelihood that any lawyer, even a fully competent one, could provide effective

assistance is so small that a presumption of prejudice is appropriate without inquiry

into the actual conduct of the trial.” Id. at 659-60.

       {¶18} Appellant argues that due to the magnitude of the errors that

Appellant’s trial counsel committed during his jury trial, “a critical stage,” this case

falls within the narrow exception set forth in Cronic. Appellant further argues that




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since trial counsel’s performance was so deficient he was denied any trial counsel

at all.

          {¶19} In support of his argument, Appellant directs us to portions of the

transcript to demonstrate trial counsel’s deficient performance. Regardless, should

Appellant’s grievances demonstrate a “deficient performance” by his trial counsel,

we cannot say that such performance warrants the application of the narrow

exception outlined in Cronic under the facts presented. Even though we agree with

Appellant that his trial counsel’s alleged deficiencies occurred at his jury trial, which

is a “critical stage of his trial,” we find that such deficiencies, individually or as

whole, do not amount to a Cronic violation for the reasons set forth below.

          {¶20} In State v. Blair, the Second District Court of Appeals found that trial

counsel’s failure to prepare for trial and by sitting silently during trial warranted the

presumption that defendant was prejudiced, in accordance with Cronic. See, State

v. Blair, 171 Ohio App.3d 702, 2007-Ohio-2417, 872 N.E.2d 986, ¶¶ 13-16 (trial

counsel failed to file any motions prior to trial, indicated on the record that he was

not prepared to go to trial, and sat silently as the criminal defendant was convicted

without any defense whatsoever). However, in the case sub judice, the record

reveals that trial counsel was actively involved in Appellant’s trial advocacy. Thus,

we find the alleged deficiencies (of Appellant’s trial counsel) here to be dissimilar

to those deficiencies set forth in Blair.


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       {¶21} Further, this case is not analogous to the deficiencies we considered in

State v. Loman, wherein trial counsel was required to present testimony from

counsel’s office in opposition to Loman’s interest, which resulted in Loman

receiving a prison sentence instead of community control. See, State v. Loman, 3rd

Dist. Auglaize No. 2-13-27, 2014-Ohio-1570, ¶¶ 33-35. See also, State v. Oliver,

9th Dist. Summit No. 26446, 2013-Ohio-1977, ¶ 19 (criminal defendant was left

without counsel and denied the right of cross-examination when his attorney

presented testimony against his interest). In this case, we find no evidence that

Appellant’s trial counsel was compelled by the trial court to present evidence

against his interests. Thus, the alleged deficiencies (of Appellant’s trial counsel)

are dissimilar to the deficiencies we addressed in Loman.

       {¶22} Moreover, the record reveals that Appellant was represented by

counsel who: exercised preemptory challenges of potential jury members during

voir dire; gave an opening statement; cross-examined witnesses; made a Crim.R. 29

motion at the conclusion of the State’s case; and made a closing argument. Even

though the Appellant is not satisfied with his trial counsel’s performance, we find

the alleged deficient performance by trial counsel here does not fall within the

narrow exception envisioned by Cronic. Consequently, trial counsel’s performance

does not amount to a “structural defect” and we overrule Appellant’s first

assignment of error.


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                      Appellant’s Second Assignment of Error

       {¶23} In his second assignment of error, Appellant argues that if trial

counsel’s performance does not warrant the application of the Cronic exception,

trial counsel’s performance nonetheless fell below the standard for effective

assistance of counsel as announced in Strickland v. Washington. For the reasons

that follow, we find this argument to be without merit.

                                 Standard of Review

       {¶24} “‘When a convicted defendant complains of the ineffectiveness of

counsel’s assistance, the defendant must show that the counsel’s representation fell

below an objective standard of reasonableness.’” State v. Sanders, 94 Ohio St.3d

150, 151, 2002-Ohio-350, 761 N.E.2d 18 quoting Strickland, 466 U.S. 668, 687-88,

104 S. Ct. 2052 (1984). Additionally, “‘[t]he defendant must show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceedings would have been different.’” Id., at 694. See also, State v. Bradley, 42

Ohio St.3d 136, 137, 538 N.E.2d 373 (1989).

       {¶25} In analyzing a claim for ineffective assistance of counsel, this court’s

scrutiny of counsel’s performance must be highly deferential, with a “‘strong

presumption that counsel’s conduct falls within the wide range of reasonable


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professional assistance.’” Bradley, supra, at 142, quoting Strickland, supra, at 687-

88.   “Counsel’s performance will not be deemed ineffective unless and until

counsel’s performance is proved to have fallen below an objective standard of

reasonable representation and, in addition, prejudice arises from counsel’s

performance.” Id. “‘To show prejudice, the defendant must show a reasonable

probability that, but for counsel’s errors, the result of the proceedings would have

been different.’” State v. Beaver, 3rd Dist. Marion No. 9-17-37, 2018-Ohio-2438,

¶ 28, quoting State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d

996, ¶ 165.

                                      Analysis

       {¶26} The Ohio Supreme Court, in State v. Bradley, adopted the United

State’s Supreme Court test in Strickland, requiring that a criminal defendant

declaring counsel to be ineffective prove that: 1) counsel’s performance is below an

objective standard of reasonable representation, and 2) that prejudice arises from

such performance. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph

two of the syllabus.

       {¶27} Appellant points us to numerous instances (at trial) wherein his trial

counsel’s performance “fell below an objective standard of reasonable

representation.”   Specifically, Appellant argues that trial counsel: 1) failed to

remove or rehabilitate two prospective jurors who indicated that they would


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presume guilt if a defendant failed to testify; 2) failed to remove prospective jurors

who indicated that they knew one of the State’s witnesses; 3) failed to ask any

questions during voir dire; 3) stipulated to a written transcript identifying the

Appellant as the person who spoke with the CI during a taped phone call; 4) told the

jury in an opening statement that the defense would “put on evidence” to prove

Appellant’s innocence, but failed to present any evidence; 5) failed to object to

hearsay or impermissible testimony; 6) failed to cross-examine various State’s

witnesses, including the CI; and 7) made a conclusory and unsupported Crim.R. 29

request.

       {¶28} Initially, we note that in Bradley the Supreme Court analyzed

Strickland to hold that it is not always necessary to engage in an analysis of

counsel’s ineffectiveness and the prejudicial impact of any of counsel’s errors.

Rather, the Supreme Court focused upon the Strickland admonishment (to

reviewing courts) that “if it is easier to dispose of an ineffective claim on the ground

of lack of sufficient prejudice, which we expect will often be so, that course should

be followed.” (Emphasis added). Id. at 143, quoting Strickland, 466 U.S. 668, 697,

104 S. Ct. 2052 (1984).

       {¶29} In following the Ohio Supreme Court’s interpretation of Strickland,

we find that even if all of Appellant’s grievances amounted to a failure on the part

of trial counsel to meet an objective standard of reasonable representation,


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Appellant has failed to demonstrate that these errors, individually or in toto, resulted

in prejudice. Specifically, the record reveals that CI knew the Appellant prior to the

drug transaction, and further knew that Appellant’s nickname was “AJ”. (Trial,

03/20/2018 Tr. at 139). Additionally, multiple trial witnesses testified that they

observed Appellant at the time of the prearranged buy; saw him drive the blue Chevy

and drop Staver off at the Party Mart parking lot; and then park the car across the

street and enter McDonalds. (See, id. at 149-50; 129). Therefore, the evidence of

Appellant’s involvement in the drug transaction was significant and not “weakly

supported by the record,” and the resulting prejudice to Appellant has not been

established.

       {¶30} Nevertheless, Appellant argues that the outcome of the trial would

have been different had trial counsel done more. Specifically, Appellant asserts that

the jury’s questions (to the trial court) during deliberations indicated that had trial

counsel performed her duties differently, the jury would not have wrestled with the

questions that they submitted to the trial court during deliberations. We disagree

and we find this argument to be mere speculation. Rather, the jurors’ questions

could have indicated that trial counsel’s strategy, to not present evidence, may have

cast doubt on the State’s case and resulted in the jury’s questions. Furthermore, we

fail to find that trial counsel’s decision not to cross examine the CI resulted in

prejudice to Appellant, because such cross-examination would have given the CI


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the opportunity to reaffirm and bolster his testimony that Appellant was, in fact, the

individual on the other end of the phone call offering to sell him drugs.

       {¶31} Even though Appellant presumes a favorable outcome had counsel

performed her duties differently, this presumption does not exist and resulting

prejudice must be proven. And, indulging the strong presumption that counsel’s

performance fell within the wide range of reasonable professional assistance, we

cannot say that any of the argued deficiencies resulted in sufficient prejudice to the

Appellant. Accordingly, we overrule Appellant’s second assignment of error.

                      Appellant’s Third Assignment of Error

       {¶32} In his third assignment of error, Appellant argues that the trial court

used insufficient evidence to prove that Appellant was the individual on the other

end of the phone call (with the CI), and absent such proof (that Appellant was that

individual), the evidence was legally insufficient to convict Appellant of both

counts. For the reasons that follow, we disagree.

                                Standard of Review

       {¶33} “Whether there is legally sufficient evidence to sustain a verdict is a

question of law.” State v. Lyle, 3rd Dist. Allen No. 1-14-41, 2015-Ohio-1181, ¶ 8

citing State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541.

Sufficiency is a test of adequacy. Id. Under a challenge alleging insufficient

evidence, “‘the relevant inquiry is whether, after viewing the evidence in a light


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most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime proven beyond a reasonable doubt.’” Id. quoting

State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 77.

                                               Analysis3

        {¶34} Appellant was found guilty in Count One of Trafficking in Drugs, in

violation of R.C. 2925.03(A)(1). Specifically, R.C. 2925.03(A)(1) provides that

“[n]o person shall knowingly do any of the following: sell or offer to sell a

controlled substance or a controlled substance analog.”                        R.C. 2925.03(A)(1).

Augustine testified at trial that Appellant, in a phone call with the CI, offered the CI

“24 for 12” which meant 24 grams (of meth) for $1,200. (Trial, 03/20/2018 Tr. at

85; 87). The CI affirmed Augustine’s testimony, testifying that Appellant offered

to sell him (the CI) 24 grams (of “ice” or “meth”) for $1,200.4 (Id. at 138). Although

Appellant did not physically complete the “hand to hand” sale of the drug, the

testimony demonstrates that Appellant offered to sell (the CI) meth, a controlled

substance, over the phone and assisted Staver in completing the drug transaction.

Viewing the evidence in the light most favorable to the prosecution, we find that a

rational trier of fact could have found the essential elements of Trafficking in Drugs,

as defined in R.C. 2925.03(A)(1), proven beyond a reasonable doubt.



3
  We note that Appellant primarily attacks the evidence related to the phone call, however, for the reasons
discussed herein, we find sufficient evidence to satisfy each element of Appellant’s charges.
4
  Ultimately, Staver sold the CI 12 grams (of meth) for $600. (Trial, 3/20/2018 Tr. At 90).

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       {¶35} Next, we direct our attention to Count Two, Permitting Drug Abuse,

in violation of R.C. 2925.13(A). R.C. 2925.13(A) states: “no person who is the

owner, operator, or person in charge of a locomotive, * * * or other vehicle, * * *

shall knowingly permit the vehicle to be used for the commission of a felony drug

abuse offense.” R.C. 2925.13(A). Testimony from the State’s witnesses revealed

that Appellant was observed operating the blue Chevy Cobalt that dropped Staver

off at the Party Mart parking lot. (Id. at 128-29). Furthermore, the CI’s “body cam”

footage revealed that Staver, in turn, sold a “baggie” of drugs to the CI. (Id. at 147-

52; Ex. No. 6). Upon completion of the drug sale, Staver was picked up by

Appellant in the blue Chevy Cobalt. (Id. at 110). The record reveals that the State

established that the Appellant was the operator of a motor vehicle, and that

Appellant permitted that vehicle to be used to traffic in meth, a felony drug abuse

offense. Viewing this evidence in a light most favorable to the prosecution, we find

that a rational trier of fact could have found the essential elements of Permitting

Drug Abuse, as defined in R.C. 2925.13(A), proven beyond a reasonable doubt.

Accordingly, we overrule Appellant’s third assignment of error in whole.

                      Appellant’s Fourth Assignment of Error

       {¶36} In his fourth assignment of error, Appellant argues that his convictions

were against the manifest weight of the evidence. Specifically, Appellant again

argues that the State failed to prove that he was the individual on the other end of


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the phone call. For reasons discussed below and throughout this opinion, we

disagree.

                                 Standard of Review

       {¶37} The Ohio Supreme Court has “‘carefully distinguished the terms

‘sufficiency’ and ‘weight’ in criminal cases, declaring that ‘manifest weight’ and

‘legal sufficiency’ are ‘both quantitatively and qualitatively different.’” Lyle, 3rd

Dist. Allen No. 1-14-41, 2015-Ohio-1181, ¶ 9 quoting Eastley v. Volkman, 132 Ohio

St.3d 328, 2010-Ohio-2179, 972 N.E.2d 517, ¶ 10.

       {¶38} In analyzing a claim that a conviction was against the manifest weight

of the evidence, an appellate court:

       sits as the “thirteenth juror” and may disagree with the fact finder’s
       resolution of the conflicting testimony. * * * The appellate court,
       “reviewing the entire record, weighs the evidence and all reasonable
       inferences, considers the credibility of witnesses and determines
       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. The
       discretionary power to grant a new trial should be exercised only in
       the exceptional case in which the evidence weighs heavily against
       conviction.”

State v. Johnson, 3rd Dist. Shelby No. 17-08-06, 2008-Ohio-4784, ¶ 4 quoting State

v. Jackson, 169 Ohio App.3d 440, 2006-Ohio-6059, 863 N.E.2d 223, ¶14 (citations

omitted). However, in sitting as the thirteenth juror the appellate court should give

due deference to the findings made by the jury. Id.



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                                      Analysis

       {¶39} The Eighth District Court of Appeals identified the following eight

factors as a guide to assist a reviewing court in determining whether a decision of

the trial court was against the manifest weight of the evidence:

       1. A reviewing court is not required to accept the incredible as true;

       2. Whether the evidence is uncontradicted;

       3. Whether a witness was impeached;

       4. What was not proved;

       5. Certainty of evidence;

       6. Reliability of evidence;

       7. Whether witness’ testimony is self-serving;

       8. And whether evidence is vague, uncertain, conflicting, or

          fragmentary.

State v. Mattison, 23 Ohio App.3d 10, 14, 490 N.E.2d 926 (8th Dist.1995). We

discuss the relevant factors to the underlying case.

         Reviewing Court is not Required to Accept the Incredible as True

       {¶40} The record supports, and it is not incredible to believe that Appellant

offered to sell the CI meth, arranged the sale, and had a third party complete the

actual hand-to-hand transaction.




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                             Uncontradicted Evidence

       {¶41} The State’s uncontradicted evidence demonstrated that Appellant

made an offer to sell the CI meth; that the Appellant transported a third individual,

Staver, to a location to meet the CI; that Staver completed a hand-to-hand drug

transaction with the CI; and that Appellant picked up Staver immediately after the

drug deal. Moreover, Appellant did not present any evidence to contradict this

version of events.

                                Impeached Witness

       {¶42} A review of the trial transcript reveals that none of the State’s

witnesses were impeached.

                               What was not Proved

       {¶43} Appellant’s primary argument is that the State failed to prove that he

was the individual on the other end of the phone call. However, the record reveals

otherwise. Specifically, the CI testified that he knew Appellant; that Appellant was

the person that he called; and that Appellant offered him 24 for 12, which, in drug

vernacular, reasonably meant 24 grams of meth for $1,200. (See generally, Trial,

03/20/2018 Tr. at 138). Accordingly, and for reasons discussed herein, we find all

of the essential elements of the two counts charged were proven by the State.




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                               Self-Serving Testimony

       {¶44} We acknowledge that the CI’s testimony, to some degree, was self-

serving.   Testimony at trial revealed that the CI typically earned money, or

attempted to work off criminal charges, in exchange for participating in controlled

buys. (See, Trial, 03/20/2018 Tr. at 82-83). However, even with that potential (for

self-serving testimony from the CI), there is no indication that the testimony of any

of the other State’s witnesses was self-serving.

            Vague, Uncertain, Conflicting, or Fragmentary Testimony

       {¶45} A review of the trial transcript demonstrates that none of the testimony

elicited at trial was vague, uncertain, conflicting, or fragmentary. Furthermore,

Appellant does not argue that the testimony at trial falls into any of the

aforementioned categories.

       {¶46} In “dutifully examin[ing] the entire record, weigh[ing] the evidence,

and considering[ing] the credibility of witnesses,” we find that the jury did not lose

its way in convicting Appellant on both of the criminal charges contained within his

indictment. See, State v. Griffin, 4th Dist. Scioto No. 12CA3484, 2013-Ohio-3309,

¶ 17. Accordingly, we overrule Appellant’s fourth assignment of error.




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                                    Conclusion

       {¶47} Having found no error prejudicial to the Appellant herein in the

particulars assigned and argued, we overrule Appellant’s first, second, third, and

fourth assignments of error and affirm the judgment of the trial court.

                                                                Judgment Affirmed

WILLAMOWSKI, P.J. and SHAW, J., concur.

/jlr




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