[Cite as State v. Ward, 2012-Ohio-988.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 13-11-17

        v.

JOHN E. WARD,                                             OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Seneca County Common Pleas Court
                            Trial Court No. 10 CR 0133

                                      Judgment Affirmed

                            Date of Decision: March 12, 2012




APPEARANCES:

        James S. Nordholt, Jr. for Appellant

        Derek W. DeVine and James A. Davey for Appellee
Case No. 13-11-17


SHAW, P.J.

      {¶1} Appellant, John E. Ward (“Ward”), appeals the April 18, 2011

judgment of the Seneca County Court of Common Pleas journalizing his

conviction by a jury for two counts of aggravated trafficking in drugs and

sentencing him to serve fifteen months in prison on each count, to be served

consecutively.

      {¶2} On July 29, 2010, the Seneca County Grand Jury returned a two count

indictment alleging Ward committed aggravated trafficking in drugs, in violation

of R.C. 2925.03(A)(1),(C)(1)(a). Both offenses are felonies of the fourth degree.

      {¶3} The charges stemmed from two controlled purchase operations

conducted by the Seneca County Drug Task Force MERITCH Enforcement Unit

on February 16, 2009, and on March 2, 2009. Each of these controlled purchase

operations involved the use of a confidential informant, hereinafter referred to as

the “CI,” who purchased a prearranged amount of Oxycodone from Ward. During

the controlled purchase operations, law enforcement outfitted the CI with an audio

transmitter and recorder, which recorded the CI’s conversations with Ward during

each drug transaction. The CI died unexpectedly after participating in the two

controlled purchase operations involving Ward.

      {¶4} On October 12, 2010, Ward filed a motion in limine to exclude from

evidence any out-of-court statements made by the CI during the operations, in


                                        -2-
Case No. 13-11-17


particular any statements made by the CI identifying Ward as the person who sold

him the Oxycodone. Ward argued that because the CI was unavailable to testify at

trial, his out-of-court statements are considered hearsay and their admission would

violate his Sixth Amendment right of confrontation.

        {¶5} The trial court held a hearing on Ward’s motion in limine. On January

7, 2011, the trial court issued a Judgment Entry granting in part and overruling in

part Ward’s motion in limine. Specifically, the trial court excluded evidence of

the CI’s statements made during a photo array identifying Ward as the suspect.

However, the trial court permitted the prosecution to use the audio recordings

from the controlled purchase operations, concluding that the recordings are not

hearsay and the confrontation clause would not be violated. The trial court also

ruled that it would give a limiting instruction regarding the audio recordings to the

jury.

        {¶6} Ward filed two additional motions in limine requesting the trial court

to exclude from evidence any out-of-court statements made by the CI to law

enforcement after his encounters with Ward, and any out-of-court statements made

by the CI during a subsequent interview with law enforcement. After a hearing,

the trial court granted both of these motions in limine. As a result of the trial

court’s rulings, the prosecution was limited to only introducing the portion of the

audio recordings that captured the CI’s encounter with Ward during the drug


                                         -3-
Case No. 13-11-17


transactions, and was not permitted to introduce any portion of the tape after the

transactions concluded. The recording of the CI’s interview with law enforcement

was also excluded from being presented as evidence in the prosecution’s case-in-

chief.

         {¶7} The case proceeded to a jury trial on April 11 and 12, 2011. The

prosecution presented the testimony of the law enforcement officers involved in

each of the controlled purchase operations.        In addition, the prosecution also

presented the testimony of the forensic scientists who analyzed the drugs the CI

purchased from Ward and confirmed its identity as Oxycodone. Ward testified on

his own behalf.

         {¶8} On April 12, 2011, the jury returned a guilty verdict for both counts of

aggravated trafficking in drugs, convicting Ward of both offenses.

         {¶9} On April 18, 2011, the trial court sentenced Ward to serve fifteen

months in prison for each offense, to be served consecutively.

         {¶10} Ward now appeals, asserting the following assignments of error.

                         ASSIGNMENT OF ERROR NO. I

         THE   TRIAL   COURT  ERRED   BY   ADMITTING
         TESTIMONIAL    STATEMENTS   MADE    BY   AN
         UNAVAILABLE WITNESS THROUGH AUDIO TAPES OF
         ALLEGED DRUG TRANSACTIONS AND THE TESTIMONY
         OF POLICE OFFICERS.




                                          -4-
Case No. 13-11-17


                       ASSIGNMENT OF ERROR NO. II

       THE VERDICT OF GUILTY RENDERED BY THE JURY
       WAS AGAINST THE MANIFEST WEIGHT OF THE
       EVIDENCE.

       {¶11} For ease of discussion, we elect to address Ward’s assignments of

error together.

                       First and Second Assignments of Error

       {¶12} On appeal, Ward claims the trial court erred in permitting the

prosecution to use the audio recordings of the actual drug transactions during the

controlled purchase operations as evidence against him. Ward also challenges the

jury verdict, asserting that it is against the manifest weight of the evidence.

       {¶13} The following testimony was elicited as evidence at trial. Detective

Armstrong, a police officer with the Fostoria Police Department and a detective

with the Seneca County Drug Task Force MERTICH Enforcement Unit, testified

that he was the case manager assigned to both controlled purchase operations and

made all the decisions regarding how the operations proceeded.               Detective

Armstrong testified that he had previously participated in approximately two

hundred controlled purchase operations.

       {¶14} On the stand, Detective Armstrong explained the typical protocol

used in a controlled purchase operation. As standard “pre-operational protocol,”

the CI and law enforcement meet at a “pre-determined location,” where the CI and


                                          -5-
Case No. 13-11-17


his vehicle are searched by law enforcement for contraband.1 The CI is outfitted

with an audio transmitter and recorder which serves two functions: 1) to transmit

in real time to the listener all the sounds captured by the device during the

operation; and 2) to digitally record all the sounds captured by the device during

the operation.         Detective Armstrong explained that during the pre-operational

protocol law enforcement also issues the CI money to purchase the illegal drugs

anticipated to be obtained in the operation. The serial numbers on the bills are

recorded prior to being issued to the CI.

         {¶15} Detective Armstrong explained that in both of these instances

involving Ward, the CI and law enforcement left the pre-determined location and

travelled to the “target location,” where the controlled purchase was arranged to

take place. In both operations, the target location was the alley behind the CI’s

home located at 194 East Perry Street in Tiffin, Ohio. Detective Armstrong

testified that law enforcement conducted both visual and audio surveillance of the

operations.       The audio surveillance was conducted with the use of the audio

transmitter and recorder placed on the CI, and the visual surveillance was

conducted with the use of a video camera.


1
  The testimony at trial also revealed in detail the procedure used by law enforcement to conduct the search
of the CI and his vehicle. The vehicle search lasts approximately five to ten minutes and is performed in
same manner as a typical traffic stop search. Specifically, law enforcement thoroughly searches the vehicle
including the glove box, under the seats and mats, and the trunk. During the search of the CI, the CI is
asked to remove all outer layers of clothing, including his shoes, so that his first layer of clothing is all that
remains on his person. The CI’s clothing and shoes are searched by law enforcement and the CI is
thoroughly patted down.

                                                      -6-
Case No. 13-11-17


         {¶16} Detective Armstrong testified that immediately after the completion

of each operation, the CI and law enforcement returned to the pre-determined

location to conduct the “post-operational protocol.” At this time, the CI turns over

the illegal drugs he purchased in the operation to law enforcement and the

contraband is packaged and labeled as evidence. The CI and his vehicle are again

searched for additional contraband, and the audio transmitter and recorder is

removed.

         1. February 16, 2009 Controlled Purchase Operation

         {¶17} In this particular instance, Detective Armstrong recalled that the

operation was initiated when the CI contacted him about arranging the purchase of

seven OxyContin 80 pills from a person named “John.”2 Detective Armstrong

testified that based on the information he obtained from the CI, he anticipated that

the price would be $50.00 per pill. Detective Armstrong explained that he was the

“control officer” for this particular CI, meaning that the CI would contact

Detective Armstrong anytime he discovered that he could purchase illegal drugs

from someone to see if law enforcement was available to conduct a controlled



2
  OxyContin is the trade name for Oxycodone Hydrochloride controlled-release tablets, an opioid analgesic
drug. “Oxycodone is a morphine-like drug that is highly addictive and is rated as a Schedule II narcotic, a
designation given by the government that identifies a prescription medication as having a great potential for
abuse. A Schedule II designation also means that the drug, while accepted for medical use, has severe
restrictions, and abuse of the drug has a high potential to lead to severe psychological or physical
dependence.” Howland v. Purdue Pharma L.P., 104 Ohio St.3d 584, 2004-Ohio-6552, ¶¶ 2-3. Detective
Armstrong testified that OxyContin 80 contains 80 milligrams of Oxycodone.


                                                    -7-
Case No. 13-11-17


purchase operation. After speaking with the CI, Detective Armstrong authorized

the CI to arrange the purchase with the seller.

        {¶18} Detective Armstrong recalled that the operation occurred in the

afternoon. Detective Armstrong and two other detectives, Detectives Joseph and

Vallery,3 met with the CI at the pre-determined location to conduct the pre-

operational protocol. Detective Armstrong testified that he searched the CI and

fitted him with the audio transmitter and recorder. Detectives Vallery and Joseph

both testified that together they searched the CI’s vehicle. The testimony of all

three Detectives confirmed that no contraband was found either on the CI or in his

vehicle. Detective Armstrong testified that he issued the CI $350.00 to purchase

the seven OxyContin tablets at $50.00 apiece. Detective Armstrong recalled that

he assigned Detective Joseph to conduct the video surveillance of the operation,

while he and Detective Vallery monitored the audio surveillance.

        {¶19} After completing the pre-operational protocol, the CI and the

detectives left the pre-determined location and headed toward the target location.

The CI drove his own vehicle, with Detective Joseph in one vehicle, and

Detectives Vallery and Armstrong riding together in another. Detective Joseph

testified that he was the first to leave the predetermined location with the CI

behind him, and Detectives Armstrong and Vallery following the CI.


3
  Detectives Joseph and Vallery testified that they collectively have over 28 years of law enforcement
experience and have conducted over a thousand controlled purchase operations.

                                                 -8-
Case No. 13-11-17


       {¶20} Detective Armstrong recalled that while en route to the target

location, he received information from the CI that the person from whom he was

supposed to buy the OxyContin pills had arrived early.         Specifically, the CI

indicated to the detectives that the suspect was in a blue-green four-door vehicle

stopped at the intersection. The same blue-green four-door vehicle then pulled up

into the lane next to Detectives Vallery and Armstrong’s vehicle.          Detective

Armstrong testified that from his vantage point he was able to get “a full visual” of

the driver, whom he later identified as Ward. Detective Armstrong also observed

a handicapped placard hanging from the vehicle’s rearview mirror.

       {¶21} At this time, Detective Armstrong was also able to observe the

license plate on the blue-green vehicle. Detective Armstrong testified that he ran

the license plate number through LEADS, a national law enforcement database,

and discovered that the vehicle was registered to John E. Ward. The suspect then

followed the CI to the target location. Detectives Armstrong and Vallery arrived

at the target location shortly after the CI and the suspect.

       {¶22} On the stand, Detective Joseph testified that he remembered hearing

the call over the police radio indicating that the suspect had arrived early and that

his vehicle had been identified as the one stopped at the intersection. Detective

Joseph testified that he then observed both the CI’s and the suspect’s vehicles

behind him while en route to the target location. Detective Joseph described the


                                          -9-
Case No. 13-11-17


suspect’s vehicle as blue-green in color. Detective Joseph also recalled hearing

Detective Armstrong recite the license plate number of the suspect’s vehicle over

the radio.

       {¶23} Once at the target location, Detective Joseph explained that he

parked his vehicle in a nearby parking lot where he could observe the location of

the anticipated drug transaction. Detective Joseph testified that he arrived at the

target location shortly before the CI and suspect, who arrived at the same time. As

a consequence of the suspect arriving early, Detective Joseph was only able to

record the tail-end of the drug transaction with the video recorder, which depicted

the blue-green car identified as the suspect’s leaving after the illegal drug purchase

took place. However, Detective Joseph testified that while he was trying to focus

the video camera he personally observed the CI speaking to a white male during

the time the drug transaction occurred.

       {¶24} Detective Armstrong testified that he audibly monitored in real time

the conversation between the CI and Ward during this operation.              At trial,

Detective Armstrong identified the voices on the audio recordings as those

belonging to the CI and Ward.        Detective Armstrong explained that he was

familiar with the CI’s voice because he was the “control officer” for the CI and

had daily contact with him.      Detective Armstrong further explained that his

familiarity with Ward’s voice stemmed from his participation in the controlled


                                          -10-
Case No. 13-11-17


purchase operations and other additional occasions on which he interacted with

Ward after the conclusion of the operations.

      {¶25} The following is an excerpt from the audio recording of the February

16, 2009 controlled purchase operation, which was played for the jury.

      JW: (Inaudible.)

      CI: I know. We’ll I am trying to make you some money, man.
      There is one, two—seven there?

      JW: I can’t give you my bottle.

      CI:    All right. Wait a minute.

      JW: (Inaudible) give you my bottle.

      CI: One, two—you can count it. There’s $350; one, two,
      three, four, five—All right. All right. Well, I’ll get ahold of you
      later, all right?

      JW: (Inaudible) three or four more but they’re 50, man, and
      I’d have to pull a couple strings to get ‘em because I gotta go to
      Upper.

      CI: All right. Well, I’ll just give you a call later, all right?
      Just give me a call. I’ll give you a call in a couple hours or
      something, an hour. When are you going up there?

      JW: I’m gonna be leaving (Inaudible).

      CI:    Well, call me when you get back then.

      JW: I gotta go pay bills and shit, you know what I mean?

      CI: Yeah. Well, call me when you get back. Yeah. Uhm,
      yeah I got—Yeah, I gotta go drop these off real quick.


                                       -11-
Case No. 13-11-17


(Trans. p. 221-22).

       {¶26} At trial, Detective Armstrong testified to his own perceptions of the

conversation between the CI and Ward on the audio recording of the February 16,

2009 transaction. Detective Armstrong explained that he heard Ward state he

could not give the CI his bottle. Based on his experience, Detective Armstrong

testified that Ward was referring to a prescription pill bottle, which was sometimes

used as the vessel to hold the illegal drugs sold in a controlled purchase operation.

       {¶27} On the stand, Detective Armstrong also explained the significance of

Ward’s statements “three or four more but they’re 50, man, and I’d have to pull a

couple strings to get ‘em because I gotta go to Upper.” Detective Armstrong

testified that based on his experience, the CI and Ward were arranging another

purchase of illegal drugs for three or four more pills at $50.00 a piece, but that

Ward would have to travel to Upper Sandusky, a neighboring town, to obtain the

drugs. Detective Armstrong explained that he also heard the CI counting to 350

which he believed indicated that the CI had completed the purchase of the seven

OxyContin pills for $50.00 each.

       {¶28} Detectives Armstrong, Joseph, and Vallery each testified that they

followed the CI to the pre-determined location after the operation was complete to

conduct the post-operational protocol. Detective Vallery recalled that he searched

both the CI and his vehicle after the operation. Notably, the $350.00 in marked


                                        -12-
Case No. 13-11-17


bills given to the CI prior to the operation was not found. At this time, the CI

handed Detective Vallery the illegal drugs obtained during the operation, which

were identified as the anticipated seven OxyContin pills.

       {¶29} Detective Vallery described the contraband as pills loosely contained

in a cellophane wrapper, similar to the kind found on the outer wrapping of a

cigarette pack. The fact that the anticipated contraband was contained in the

cellophane wrapper directly correlates with Detective Armstrong’s perceptions of

Ward’s statements on the audio recordings indicating that he could not give the CI

his prescription pill bottle to transport the illegal drugs. Notably, as highlighted in

our discussion of the second controlled purchase operation; the illegal drugs

exchanged in that transaction were contained in a prescription pill bottle with the

label removed.

       {¶30} Detective Vallery testified that he then handed the contraband to

Detective Armstrong. Detective Armstrong testified that he packaged the pills and

labeled them as evidence. The testimony at trial revealed that at this time no other

contraband was found on either the CI or in his vehicle. Detective Armstrong also

confirmed that the audio transmitter and recorder was removed from the CI.

       {¶31} The prosecution admitted the pills obtained during the February 16,

2009 operation as an exhibit at trial. On the stand, both Detectives Vallery and

Armstrong individually identified the exhibit as the pills purchased by the CI


                                         -13-
Case No. 13-11-17


during the operation. In addition, the prosecution presented the testimony of the

forensic scientist who analyzed the identity and the weight of the pills and

confirmed that the pills were the scheduled II substance, Oxycodone. The lab

report prepared by the forensic scientist was also admitted as an exhibit at trial.

         2. March 2, 2009 Controlled Purchase Operation

         {¶32} Detective Armstrong testified that he learned from the CI that twenty

Percocet pills4 could be purchased from the same seller for $5.00 apiece, or

$100.00, and gave the CI permission to arrange the purchase.

         {¶33} Detective Armstrong recalled that the operation took place during the

afternoon of March 2, 2009. This time, the participating law enforcement officers

were Detectives Armstrong, Joseph and Boyer.5 The detectives met the CI at the

pre-determined location to conduct the pre-operational protocol. Detective Joseph

testified that the CI was searched and the audio transmitter and recorder was

placed on the CI’s body. The CI’s vehicle was not involved in this operation.

Detective Armstrong testified that the CI was issued five marked $20.00 bills.

         {¶34} The target location during this operation was the same as in the

previous operation.            Detective Boyer was assigned to conduct the video

surveillance.
4
 Percocet is composed of Oxycodone and Tylenol. As previously mentioned, Oxycodone is a schedule II
substance.
5
  Detective Boyer testified that he has nineteen years’ of experience as a City of Tiffin Police Officer and
that he also serves as the unit coordinator for the Seneca County Drug Task Force METRICH Enforcement
Unit. He testified that he has participated in over a thousand controlled purchase operations.

                                                   -14-
Case No. 13-11-17


       {¶35} Detective Boyer testified that he parked at the target location, hid in

the back of his vehicle, and waited for the suspect to arrive. Detective Boyer’s

video recording of the operation was admitted as evidence at trial. The recording

initially focuses on the CI who is waiting to meet with the suspect. After a few

minutes pass, a blue-green four-door vehicle is seen driving down the alley past

Detective Boyer’s location. There is a handicapped placard hanging from the

rearview mirror of the vehicle. Detective Boyer focuses on the driver, who is the

sole occupant of the vehicle, and is able to view his face. The vehicle stops at the

target location and a man in a brown coat is seen approaching the driver’s side of

the vehicle. The man in the brown coat then leans into the driver’s side window

with his hands inside the vehicle for close to a minute. Detective Boyer focuses

on the vehicle’s license plate and calls in the license plate number over the police

radio. The man in the brown coat then leans back from the vehicle and is seen

with a small object in his right hand. The man in the brown coat and the driver

continue to talk for another minute and then driver leaves the target location.

       {¶36} At trial, Detective Boyer testified to his observations during the

operation and explains the video. Specifically, he identifies the CI as the man

wearing the brown coat, who leans into the vehicle. Detective Boyer explained

that based on his experience a person typically leans into a vehicle in that manner,

in broad daylight, to avoid anyone seeing what is being exchanged. Detective


                                        -15-
Case No. 13-11-17


Boyer testified that it is his understanding that the illegal drugs were exchanged

between the suspect and the CI at this moment. Detective Boyer also identified

his voice on the video and explained that he recited over the radio the license plate

number of the suspect’s vehicle to inform the other detectives.

       {¶37} Detective Boyer testified that he made still photographs of the driver

and the vehicle from his video surveillance.        These photographs were also

admitted as exhibits at trial. On the stand, Detective Boyer described the images

in the photos. The majority of the photos focus on the driver of the vehicle, in

particular the driver’s face. Detective Boyer identified Ward in the courtroom as

the driver of the vehicle in the photos. Another photo depicts the blue-green

vehicle with a clear view of the license plate number. Boyer identified this vehicle

as the one he observed at the March 2, 2009 controlled purchase operation. The

testimony at trial also revealed that the license plate number on the vehicle was the

same one observed by Detective Armstrong in the first operation.

       {¶38} Detectives Armstrong and Joseph conducted the audio surveillance

from the same vehicle. During this time, Detective Armstrong audibly monitored

the operation in real time. The operation was simultaneously being recorded. The

following is an excerpt of the audio recording of the March 2, 2009 operation,

which was also played for the jury at trial.

       CI: What’s up, big dawg? Can you roll that down farther or—


                                         -16-
Case No. 13-11-17


      JW: (Inaudible).

      CI: One, two, three, four, five; one hundred. Where are you
      going? Upper Sandusky? What do you gotta go up there for?
      (Inaudible) stand right there.

      JW: I took my kids up there (Inaudible) snow storm. We were
      upset (Inaudible) thought it was give [sic], then I found out it
      was (Inaudible.)

      CI:   (Inaudible)

      JW: I gotta be up there a [sic] six.

      CI:   Well, what time are you gonna be back?

      JW: Probably about seven, 7:30.

      CI:   Seven, 7:30?

      JW: Hey, tomorrow might be able to get some Donnes in the
      morning (Inaudible) fuckin’ Blue’s old lady to the doctor in the
      morning.

      CI:   Blue’s old lady?

      JW: Yeah (Inaudible) fuckin’ Donnes and Zannies in the
      morning.

      CI: That’d be cool. Get a hold of me, man, for sure. Call me
      tonight.

      JW: I will.

      CI:   All right.

      JW: I don’t even hardly have any of these left, fuck.

      CI:   Damn, you done got rid of all of them already?


                                     -17-
Case No. 13-11-17


      JW: I wanted to fuck—I need a few to fuckin’—I don’t know.
      I wanna get this quarter of red bud that’s really (Inaudible) you
      know?

      CI:   Yeah.

      JW: But I gave [sic] him a few of these, I get a, fuck, quarter of
      it.

      CI:   All right.

      JW: I was trying to fuckin’ (Inaudible) 15, I’d give them five of
      them.

      CI:   Yeah.

      JW: They told me it’d be ready Monday.

      CI:   Huh? All right. Well, get a hold of me, man.

      JW: I already had some one time, that’s fuckin’ good, man,
      fuckin’ real good. It’s all real red.

      CI:   Oh, yeah?

      JW: You know, like the red hairs in the leaves.

      CI:   That real—

      JW: (Inaudible) green in it.

      CI:   That real good shit?

      JW: Ain’t any green in it.

      CI:   Oh, yeah. Really? I’d like to see some of that.

      JW: It’s the fuckin’ bomb.



                                     -18-
Case No. 13-11-17


       CI: Oh yeah. Okay. Well, call me when you get back from
       Upper.

       JW: I will.

       CI:    All right, man. I’ll close our garage . . .

(Trans. p. 243-46).

       {¶39} After the audio recording of the March 2, 2009 operation was played,

the prosecutor asked Detective Armstrong to explain some of the references made

by Ward in his statements. Detective Armstrong explained that the anticipated

goal of this operation was to purchase twenty Percocet pills for $100.00.

Detective Armstrong testified that based on his training and experience he

believed that Ward’s comments stating that he only had “a few of these” left, that

“it’d be ready Monday,” and that he wanted to get rid of “15” and “I’d give them

five of them” so that he could get “a quarter of a red bud” meant that Ward wanted

to keep five of the twenty Percocet pills he arranged to sell to the CI to exchange

them for a quarter ounce of marijuana. However, the CI had already indicated that

he wanted to buy the twenty pills. Detective Armstrong testified that based on his

understanding of what had occurred, the CI was able to purchase all twenty pills

because he heard the CI counting “one, two, three, four, five; one hundred”

indicating that the CI was individually counting the five twenty dollar bills

previously issued to him by law enforcement.



                                        -19-
Case No. 13-11-17


          {¶40} Shortly after the CI’s statements, a noticeable rattling sound was also

picked up by the recording. Detective Armstrong described this sound as pills

dropping into a prescription pill bottle. After the operation was complete, the

twenty Percocet pills purchased by the CI were turned over to the detectives.

Notably, the pills were contained in a prescription pill bottle with the label

removed, which was consistent with Detective Armstrong’s perceptions while

listening to the recordings. Detective Armstrong also explained Ward’s references

to “Zannies” and “Donnes” as the street names for Xanax pills and Methadone

pills.6

          {¶41} Detective Armstrong testified that after the operation he and

Detective Joseph picked-up the CI from the target location and drove him to the

pre-determined location to conduct the post-operational protocol. At this time, the

CI handed Detective Joseph the twenty pills contained in the plastic prescription

pill bottle with the label removed. Detective Joseph testified that he received the

pills from the CI, and then labeled and packaged the pills as evidence. Detective

Armstrong confirmed that the CI was searched and the audio transmitter and

recorder was removed. Detective Armstrong testified that neither the marked bills

nor any additional contraband were found on the CI’s person.




6
 Xanax is an anti-anxiety drug and a schedule IV substance. Methadone is a pain reliever and a schedule II
substance.

                                                  -20-
Case No. 13-11-17


       {¶42} At trial, the prosecution admitted as an exhibit the package of

evidence containing the pills purchased by the CI in the operation. On the stand,

Detective Joseph identified the pills as the ones obtained in the March 2, 2009

operation. In addition, the prosecution presented the testimony of the forensic

scientist who analyzed the identity and the weight of the pills and confirmed that

the pills were the scheduled II substance, Oxycodone. The lab report prepared by

the forensic scientist was also admitted as an exhibit at trial.

       {¶43} In his first assignment of error, Ward argues that the trial court erred

in partially overruling his motion in limine to exclude as evidence against him the

audio recordings of the controlled purchase operations. Specifically, Ward argues

that the statements of the CI captured by the recordings constitute hearsay and

violate his Sixth Amendment right of confrontation.

       {¶44} As an initial matter we note that decisions regarding the admissibility

of evidence are within the sound discretion of the trial court and will not be

reversed absent a showing of an abuse of discretion. State v. Yohey (March 18,

1996), 3d Dist. No. 9-95-46, citing State v. Graham, 58 Ohio St.2d 350 (1979),

and State v. Lundy, 41 Ohio App.3d 163 (1987). An abuse of discretion implies

that the court’s attitude is unreasonable, arbitrary, or unconscionable. Blakemore

v. Blakemore, 5 Ohio St.3d 217, 219, (1983).




                                          -21-
Case No. 13-11-17


      {¶45} We have previously addressed this issue and concluded that the

audio recordings of actual drug transactions are not hearsay, and that the

introduction of such recordings does not violate the confrontation clause. See

State v. Perkins, 3d Dist. No. 13-10-36, 2011-Ohio-2705, ¶ 5; State v. Stewart, 3d

Dist. No. 13-08-18, 2009-Ohio-3411, ¶ 90. The rationale underpinning our prior

cases is based on state and federal authority which has uniformly held that the

introduction of a CI’s statements recorded during the actual drug transaction with

the defendant are not offered to prove the truth of the matter asserted, but are

merely necessary to establish the context of the defendant’s own statements and

responses captured on the recordings. Stewart at ¶ 90 citing State v. Sloan, 8th

Dist. No. 79832, 2002-Ohio-2669, ¶ 16; State v. Hill, 5th Dist. No. CA-8094 (Dec.

31, 1990). See, also United States v. Price, 792 F.2d 994, 996 (11th Cir.1986)

(finding that the statements of the deceased CI on the audio recordings of a

narcotics transaction involving the defendant were not hearsay and did not violate

the defendant’s Sixth Amendment right of confrontation because “[t]he single

purpose for admitting the [CI’s] statements was to make understandable to the jury

the statements made by [the defendant] himself.”) Notably, Ohio appellate courts,

as well as other jurisdictions, have ruled on this issue consistent with our prior

opinions. See e.g., State v. Jones, 4th Dist. No. 09CA1, 2010-Ohio-865, ¶ 24;

State v. Aldrich, 12th Dist. No. CA2006-10-044; 2008-Ohio-1362, ¶ 9; United


                                      -22-
Case No. 13-11-17


States v. Jones, 205 Fed. Appx. 327, 342 (C.A.6 2006); Turner v. Kentucky, 248

S.W.3d 543, 545-546 (Ky.2008); Connecticut v. Smith (CT 2008), 289 Conn. 598,

960 A.2d 993, 1011-1012.

       {¶46} In this instance, the trial court also gave the jury the following

instruction regarding the evidentiary weight to be allotted to these audio

recordings.

       Now, in this case, the Court has permitted the State of Ohio to
       introduce the statements of the confidential informant made
       outside of court through the introduction of various audio
       recordings over the objection of John Ward. These statements
       have not been introduced for the truth of the matter asserted.
       Rather, these statements have been allowed into evidence to
       merely establish the context of the suspect’s statements and
       responses. For that reason, you, the jury, may not consider the
       statements of the confidential informant for the truth of the
       matter asserted.

(Trans. p. 321).

       {¶47} Based on the testimony which we set forth above, we believe that the

audio recordings of the controlled purchase operations were introduced for the

permissible purpose of establishing the context of Ward’s statements consistent

with the ruling of our prior case law. We also believe the record demonstrates that

the audio recordings were offered for an additional purpose to provide the context

for the personal observations and perceptions made by Detective Armstrong while

he audibly monitored the drug transactions in real time, and to assist Detective

Armstrong in providing testimony to that effect on the stand. Therefore, we

                                       -23-
Case No. 13-11-17


conclude that the audio recordings of the operations do not constitute hearsay and

their admission did not violate Ward’s Sixth Amendment right to confrontation.

Ward’s first assignment of error is overruled.

       {¶48} In his second assignment of error, Ward challenges the jury verdict

convicting him on two counts of aggravated trafficking in drugs. Specifically,

Ward argues that the jury verdict was against the manifest weight of the evidence.

       {¶49} An appellate court’s function when reviewing the weight of the

evidence is to determine whether the greater amount of credible evidence supports

the verdict. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). In reviewing

whether the trial court’s judgment was against the weight of the evidence, the

appellate court sits as a “thirteenth juror” and examines the conflicting testimony.

Id. In doing so, this Court must review the entire record, weigh the evidence and

all of the reasonable inferences, consider the credibility of witnesses, and

determine whether in resolving conflicts in the evidence, the factfinder “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. Andrews, 3d Dist. No. 1–05–

70, 2006–Ohio–3764, ¶ 30, citing State v. Martin, 20 Ohio App.3d 172, 175

(1983); Thompkins, 78 Ohio St.3d at 387.

       {¶50} Ward was convicted of aggravated trafficking in drugs, in violation

of R.C. 2925.03(A)(1),(C)(1)(a), which provides:


                                        -24-
Case No. 13-11-17


       (A) No person shall knowingly do any of the following:

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

       (C) Whoever violates division (A) of this section is guilty of one
       of the following:

       (1) If the drug involved in the violation is any compound,
       mixture, preparation, or substance included in schedule I or
       schedule II. * * * The penalty for the offense shall be determined
       as follows:

       (a) * * * aggravated trafficking in drugs is a felony of the
       fourth degree, and division (C) of section 2929.13 of the Revised
       Code applies in determining whether to impose a prison term on
       the offender.

       {¶51} On appeal, Ward contends that the jury verdict was against the

manifest weight of the evidence because the only witness who could identify Ward

as the person who sold the Oxycodone in the controlled purchase operations is

now deceased and unable to testify in court. Therefore, Ward challenges the

validity of the jury verdict, asserting that there was no direct evidence introduced

at trial to either identify him as the person who sold the Oxycodone to the CI or to

demonstrate that an illegal drug transaction actually occurred.

       {¶52} Despite Ward’s contentions, direct and circumstantial evidence do

not differ in terms of their probative value. State v. Treesh, 90 Ohio St.3d 460,

485, (2001), citing State v. Jenks, 61 Ohio St.3d 259 (1991) paragraph one of the

syllabus. It is well established that “circumstantial evidence is sufficient to sustain

a conviction if the evidence would convince the average mind of the defendant’s

                                         -25-
Case No. 13-11-17


guilt beyond a reasonable doubt.” State v. McKnight, 107 Ohio St.3d 101, 2005–

Ohio–6046, ¶ 75. “Circumstantial evidence is not only sufficient, but may also be

more certain, satisfying and persuasive than direct evidence.” State v. Lott, 51

Ohio St.3d, 160, 168 (1990), quoting Michalic v. Cleveland Tankers, Inc, 364 U.S.

325, 330 (1960).

       {¶53} As observed by the United States Supreme Court, “[i]ndividual

pieces of evidence, insufficient in themselves to prove a point, may in cumulation

prove it,” because “[t]he sum of an evidentiary presentation may well be greater

than its constituent parts.” Bourjaily v. United States (1987), 483 U.S. 171, 179–

180. In addition, “a piece of evidence, unreliable in isolation, may become quite

probative when corroborated by other evidence.” Id. at 180. Moreover, a series of

facts and circumstances can be employed by a jury as the basis for its ultimate

conclusions in a case. Lott, 51 Ohio St.3d at 168, citing Hurt v. Charles J. Rogers

Transp. Co., 164 Ohio St., 329, 331 (1955).

       {¶54} In reviewing the testimony presented at trial, we find there is

substantial circumstantial evidence identifying Ward as the person who sold the

Oxycodone to the CI during both controlled purchase operations. Detectives

Boyer and Armstrong each identified Ward as the person they observed meeting

with the CI during the operations. Moreover, they each identified Ward’s vehicle

as the one involved in the operations.


                                         -26-
Case No. 13-11-17


       {¶55} In addition, Detective Armstrong also explained that when he ran the

license plate number of the vehicle through the database every picture Ward had

taken over the years to renew his driver’s license identification card appeared on

the screen. Detective Armstrong testified that upon seeing those pictures he was

able to identify Ward as the person he had seen in the vehicle with the CI at the

target location.

       {¶56} Detective Armstrong also testified that he had seen Ward on a few

occasions in addition to the two controlled purchase operations.          Detective

Armstrong recalled a specific instance where he had an hour-long conversation

with Ward at a child custody hearing, which was prompted as a result of the

charges pending in this case. Detective Armstrong remembered talking with Ward

in a doorway waiting to go into the courtroom. Detective Armstrong also recalled

participating in at least two traffic stops involving Ward, which occurred after the

controlled purchase operations were completed.

       {¶57} Detective Armstrong further testified that Ward has a distinguishing

physical characteristic which assisted him in identifying Ward.           Detective

Armstrong explained that based on his personal observations of Ward, he noticed

that Ward walks with a limp. At trial, Ward testified that in 1999 he became

disabled with a fused leg and a bad back. All of this testimony further bolstered




                                       -27-
Case No. 13-11-17


Detective Armstrong’s identification of Ward as the person who sold the

Oxycodone to the CI in the controlled purchase operations.

       {¶58} Ward challenges the prosecution’s evidence identifying him as the

seller in the controlled purchase operations based on the fact that law enforcement

did not attempt to analyze any fingerprints potentially found on the containers in

which the Oxycodone was transferred, or to conduct a voice analysis of the audio

recordings. On cross-examination, Ward’s counsel asked each of the detectives

who participated in the controlled purchase operations why neither a fingerprint

nor a voice analysis were performed in this case. The detectives provided similar

and consistent responses to this question stating that it is not standard protocol to

perform these types of tests, specifically when they believed the identity of the

suspect is not in question. Moreover, the testimony revealed that fingerprint

analysis is usually futile in these types of cases because it is difficult to lift a

fingerprint off of cellophane or a plastic prescription pill bottle. Ward’s counsel

also asked the detectives why Ward was not arrested immediately after the

operation. The detectives explained again that it was not protocol to arrest the

suspect immediately after a controlled purchase operation because at that time the

CI’s identity would be revealed, and the CI would no longer be of use to law

enforcement in the future.




                                        -28-
Case No. 13-11-17


         {¶59} At trial, Ward testified on his own behalf. Ward denied selling the

drugs to the CI on February 16, 2009 and on March 2, 2009. Ward admitted that

during the time of the controlled purchase operations he had owned a vehicle

which matched the description of the one identified by the detectives. However,

Ward claimed that during these pertinent time periods he had entrusted his vehicle

to a local mechanic and therefore he was not in possession of the vehicle at all

times relevant to the operations. Ward also testified that he has been unable to

maintain employment since 2006 due to his disability. Ward further testified that

in the past he had been prescribed Percocet, Oxycontin 10, 20, 30, 40 and 80, but

insisted that he never failed a pill count.7

         {¶60} There is also ample circumstantial evidence demonstrating that a

drug transaction occurred in each instance that the CI met with Ward during the

controlled purchase operations. As previously discussed, each of the detectives

involved in the controlled purchase operations testified to the procedural protocol

conducted during the operations. Moreover, each of the detectives testified to his

specific role in that protocol. On both occasions, the CI and his vehicle, if it was

involved, were extensively searched before and after the operation. Prior to each

operation, the CI was issued marked bills to complete the purchase, which were

7
  Based on the testimony at trial, the number after OxyContin indicates the milligram amount of
Oxycondone. For example, OxyContin 10 means that the drug contains 10 milligrams of Oxycodone. In
addition, Ward testified that a “pill count” is a random screening ordered by a doctor which involves a
patient going into a pharmacy to count the pills to ensure that the patient has the appropriate amount of pills
remaining at that point in the prescription period.

                                                    -29-
Case No. 13-11-17


not found on his person or in his vehicle after meeting with Ward. In both

instances, it was only after the CI met with Ward, that the CI had obtained the

anticipated amount and type of drugs expected to be purchased in the operation.

       {¶61} In addition, the audio recordings of the encounters between Ward

and the CI provide evidence that drug transactions had occurred. In each of the

recordings, the CI is heard counting the precise amount of money anticipated to be

used in the transaction.    As explained by Detective Armstrong, Ward’s own

statements on the audio recording of the two operations indicate that a drug

transaction was in progress.       Each of these facts and circumstances together

created a reasonable basis for the jury to conclude that Ward was the person who

sold the Oxycodone to the CI during the operations and that an actual illegal drug

purchase occurred on each of these occasions.

       {¶62} In the end, it was solely within the province of the jury to weigh the

evidence and consider the credibility the witnesses to determine whether the

evidence sustained a conviction. In this case, it is apparent that the jury found the

evidence to be adequate to support finding Ward guilty on two counts of

aggravated trafficking in drugs.

       {¶63} After reviewing the record, weighing the evidence and all reasonable

inferences, and considering the credibility of witnesses, we conclude that a

reasonable jury could have found that Ward was the person who sold Oxycodone


                                         -30-
Case No. 13-11-17


to the CI during the controlled purchase operations on February 16, 2009 and on

March 2, 2009, and that an actual drug transaction occurred during the operations.

Therefore, we further conclude that the jury did not lose its way and create a

manifest miscarriage of justice in reaching these conclusions. Accordingly, we

find that Ward’s convictions for aggravated trafficking in drugs are not against the

manifest weight of the evidence. Ward’s second assignment of error is overruled.

       {¶64} For all these reasons, the judgment is affirmed.

                                                                Judgment Affirmed

WILLAMOWSKI and ROGERS, J.J., concur.

/jlr




                                       -31-
