[Cite as State v. Johnson, 2013-Ohio-3218.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                        C.A. No.      26628

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
JEROME ALLEN JOHNSON                                 COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 12 05 1289 (A)

                                 DECISION AND JOURNAL ENTRY

Dated: July 24, 2013



        BELFANCE, Presiding Judge.

        {¶1}     Defendant-Appellant Jerome Allen Johnson appeals from his conviction in the

Summit County Court of Common Pleas. For the reasons set forth below, we affirm.

                                                I.

        {¶2}     In May 2012, Mr. Johnson was indicted on one count of trafficking in cocaine in

violation of R.C. 2925.03(A)(C)(4), a fifth-degree felony. The matter proceeded to a jury trial

and Mr. Johnson was found guilty of the charge. The trial court sentenced Mr. Johnson to 36

months of community control and fined him $500. If Mr. Johnson violated community control,

the court indicated that Mr. Johnson could face up to 12 months in prison. Mr. Johnson has

appealed, raising a single assignment of error for our review.
                                                    2


                                                   II.

                                     ASSIGNMENT OF ERROR

         APPELLANT’S CONVICTION FOR TRAFFICKING IN COCAINE WAS
         BASED UPON INSUFFICIENT EVIDENCE AS A MATTER OF LAW, AND
         WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

         {¶3}    Mr. Johnson asserts his conviction was based upon insufficient evidence as there

was not enough evidence to connect him to the crime. He asserts his conviction is against the

manifest weight of the evidence because the testimony of his alleged accomplice, Dontez

Trammer, proves that Mr. Johnson did not provide Mr. Trammer with any cocaine. We do not

agree.

         Sufficiency of the Evidence

         {¶4}    “Whether a conviction is supported by sufficient evidence is a question of law

that this Court reviews de novo.” State v. Williams, 9th Dist. Summit No. 24731, 2009–Ohio–

6955, ¶ 18, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).

         An appellate court’s function when reviewing the sufficiency of the evidence to
         support a criminal conviction is to examine the evidence admitted at trial to
         determine whether such evidence, if believed, would convince the average mind
         of the defendant’s guilt beyond a reasonable doubt. The 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 (1991), paragraph two of the syllabus.

         {¶5}    Mr. Johnson was found guilty of violating R.C. 2925.03(A)(C)(4) under a

complicity theory as an aider or abettor. R.C. 2925.03(A) states that

         [n]o person shall knowingly do any of the following:

         (1) Sell or offer to sell a controlled substance;

         (2) Prepare for shipment, ship, transport, deliver, prepare for distribution, or
         distribute a controlled substance, when the offender knows or has reasonable
                                                 3


       cause to believe that the controlled substance is intended for sale or resale by the
       offender or another person.

“A person acts knowingly, regardless of his purpose, when he is aware that his conduct will

probably cause a certain result or will probably be of a certain nature. A person has knowledge

of circumstances when he is aware that such circumstances probably exist.” R.C. 2901.22(B).

R.C. 2923.03(A)(2) provides that “[n]o person, acting with the kind of culpability required for

the commission of an offense, shall * * * [a]id or abet another in committing the offense[.]”

Whoever violates R.C. 2323.03 “shall be prosecuted and punished as if he were a principal

offender.” R.C. 2923.03(F). “To support a conviction for complicity by aiding and abetting

pursuant to R.C. 2923.03(A)(2), the evidence must show that the defendant supported, assisted,

encouraged, cooperated with, advised, or incited the principal in the commission of the crime,

and that the defendant shared the criminal intent of the principal.” State v. Johnson, 93 Ohio

St.3d 240 (2001), syllabus.       “Such criminal intent can be inferred from the presence,

companionship, and conduct of the defendant before and after the offense is committed.” In re

T.K., 109 Ohio St.3d. 512. 2006-Ohio-3056, ¶ 13. However, “the mere presence of an accused at

the scene of a crime is not sufficient to prove, in and of itself, that the accused was an aider and

abettor.” (Internal quotations and citation omitted.) Johnson, 93 Ohio St.3d at 243.

       {¶6}    Viewing the evidence in a light most favorable to the State, we conclude there

was sufficient evidence whereby a reasonable trier of fact could conclude beyond a reasonable

doubt that Mr. Johnson trafficked in cocaine by aiding and abetting Mr. Trammer. On May 4,

2012, around 2:00 p.m., Detective Brian Boss with the Akron Street Narcotics Uniform Detail

(“SNUD”) was driving around in high-crime areas of Akron with two other individuals in an

unmarked vehicle trying to buy narcotics. Detective Boss was driving down Newton Street

when he came across Mr. Trammer and asked him if he “had anything[.]” Mr. Trammer told
                                                 4


Detective Boss to pull onto Barder Avenue and he would meet him there. Detective Boss did so,

and Mr. Trammer approached the vehicle and asked what Detective Boss wanted. Detective

Boss indicated he was looking to buy a “20 piece,” which is a $20 rock of crack cocaine. Mr.

Trammer told him wait a minute and he would be back. Mr. Trammer walked across the street

and out of view. Approximately five minutes later, he returned and was in the company of Mr.

Johnson. Mr. Trammer approached the car and told Detective Boss that “‘[his] boy [was] going

to get the dope at the car wash’” and then Mr. Trammer would bring it to Detective Boss. As

Mr. Trammer was saying “[his] boy” he was pointing at Mr. Johnson, who was approximately 50

feet from Mr. Trammer. Detective Boss then relayed this information, as well as a description of

the individuals to other undercover detectives in the area.

       {¶7}    Detective Donny Williams, also with the SNUD, received the radio transmission

from Detective Boss, and was parked in an unmarked vehicle in a parking lot next to a

convenience store which was across the street from the car wash. Detective Williams estimated

he was approximately 50-60 yards from the entrance of the car wash and had a clear,

unobstructed view of the front of it. Detective Williams observed an individual matching Mr.

Johnson’s description walk into the car wash and disappear out of view. Thirty to forty seconds

later he walked out of the car wash and met an individual matching Mr. Trammer’s description

between ten to twenty feet in front of the door of the car wash. Detective Williams testified that

he “observed Mr. Johnson, with his right hand, hand Mr. Trammer something. Mr. Trammer

looked at it, turned and walked away.” While Detective Williams did not see what, if anything,

was transferred from Mr. Johnson to Mr. Williams, based upon his experience, it appeared that

Mr. Johnson transferred something to Mr. Trammer. Detective Williams reported what he had

observed to Detective Boss.
                                                5


       {¶8}   Mr. Trammer then returned to Detective Boss’ vehicle and handed Detective Boss

a rock of crack cocaine and Detective Boss handed Mr. Trammer $20. Detective Boss indicated

that, based on his experience, the rock was similar in size to other $20 pieces of cocaine. Mr.

Trammer and Mr. Johnson were then arrested and the buy money was found on Mr. Trammer.

Laboratory analysis later confirmed that the rock contained cocaine.

       {¶9}   Based on the foregoing, we conclude that sufficient circumstantial evidence was

presented, if believed, whereby a reasonable trier of fact could conclude that Mr. Johnson

trafficked in cocaine by aiding and abetting Mr. Trammer. According to Detective Boss, Mr.

Trammer identified Mr. Johnson as the individual that would get cocaine from the car wash.

Detective Williams observed Mr. Johnson go into the car wash and come out and then appear to

hand something to Mr. Trammer. Mr. Trammer then looked at his hand and proceeded to walk

away. In light of the fact that Mr. Trammer looked into his hand after his encounter with Mr.

Johnson, a jury could reasonably infer that Mr. Johnson handed something to Mr. Trammer.

Further, in light of the fact that Mr. Trammer told Detective Boss earlier that Mr. Johnson was

going to get dope from the car wash, a jury could reasonably infer that the substance Mr.

Johnson handed Mr. Trammer after having been in the car wash was the cocaine that Mr.

Trammer then provided to Detective Boss. Thus, viewing the evidence in a light most favorable

to the prosecution, the jury could conclude that Mr. Johnson was more than just an innocent

bystander, and, instead, aided Mr. Trammer in the sale of cocaine to Detective Boss.

Accordingly, Mr. Johnson’s argument is without merit.
                                               6


       Manifest Weight

       {¶10} Mr. Johnson also asserts that his conviction is against the manifest weight of the

evidence because Mr. Trammer unequivocally testified that he did not get the cocaine from Mr.

Johnson. We do not agree.

       {¶11} In reviewing a challenge to the weight of the evidence, the appellate court

       [m]ust review the entire record, weigh the evidence and all reasonable inferences,
       consider the credibility of witnesses and determine whether, in resolving conflicts
       in the evidence, the trier of fact 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986).

       {¶12}   Mr. Johnson is correct that Mr. Trammer did testify on behalf of the defense and

repeatedly indicated that he did not obtain any cocaine from Mr. Johnson. However, there was

much about Mr. Trammer’s testimony that could have caused the jury to question Mr.

Trammer’s credibility.

       {¶13} Mr. Trammer’s testimony is a bit disjointed and difficult to follow. Nonetheless,

he does repeatedly deny obtaining cocaine from Mr. Johnson. Instead, Mr. Trammer testified

that on May 4, 2012, someone had asked to buy a $20 piece of cocaine. Mr. Trammer indicated

that he was very intoxicated and had consumed four six-packs of beer that day. Mr. Trammer

stated that he remembered he had a small $10 piece of cocaine at home and so he went and

retrieved that. Then Mr. Trammer proceeded to the car wash to see if he could get the phone

number of a friend that would have more. Mr. Trammer passed Mr. Johnson on the way, but Mr.

Johnson was on the phone and so Mr. Trammer did not bother him. Mr. Trammer did get a

phone number and a cigarette from the car wash, although neither was found on Mr. Trammer

when he was arrested.     While Mr. Trammer testified he did obtain a phone number, Mr.
                                                7


Trammer did not obtain any more cocaine. He testified that he returned to the vehicle and gave

Detective Boss the piece of cocaine he got from his home and Mr. Trammer got $20. He stated

that it was too small to be a $20 piece of cocaine and so was going to tell Detective Boss that he

only needed to pay $10, but Detective Boss sped off before he had the chance to do so.

       {¶14} On cross-examination, Mr. Trammer acknowledged that he had a prior felony

conviction for theft and also discussed several inconsistencies between his trial testimony and the

previous colloquy that took place when Mr. Trammer pleaded guilty to charges related to this

incident. Mr. Trammer agreed that, during his plea he stated that he did not know what

happened the day of the drug sale or the next day. At the plea hearing, Mr. Trammer admitted he

was an alcoholic and that he had seizures. He stated during his plea colloquy that “‘I did

something dumb that day. The only way I found out I had did it is somebody had told me.’”

       {¶15} In light of the fact that, at the time of the plea, Mr. Trammer stated that he did not

know what had happened on May 4, 2012, the jury could have viewed Mr. Trammer’s trial

testimony in which Mr. Trammer suddenly seemed to remember the events of that day with

skepticism. Essentially, the jury heard conflicting versions of events and was charged with

evaluating which version was more credible. We cannot say that the jury lost its way in finding

that Detectives Boss’ and Williams’ version was more credible. Accordingly, after a thorough

and independent review of the record, we cannot say that Mr. Johnson’s conviction for

trafficking in cocaine was against the manifest weight of the evidence.            Mr. Johnson’s

assignment of error is overruled.

                                               III.

       {¶16} In light of the foregoing, we affirm the judgment of the Summit County Court of

Common Pleas.
                                                 8


                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     EVE V. BELFANCE
                                                     FOR THE COURT



CARR, J.
WHITMORE, J.
CONCUR.


APPEARANCES:

JEFFREY N. JAMES, Attorney at Law, or Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
