[Cite as State v. Burks, 2011-Ohio-3529.]




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



STATE OF OHIO,                                            CASE NO. 17-10-27

   PLAINTIFF-APPELLEE,

  v.

KENNETH BURKS,                                                  OPINION

   DEFENDANT-APPELLANT.



                  Appeal from Shelby County Common Pleas Court
                            Trial Court No. 09CR000330

                                      Judgment Affirmed

                              Date of Decision: July 18, 2011




APPEARANCES:

        Kimberly S. Kislig for Appellant

        Jeffrey J. Beigel for Appellee
Case No. 17-10-27




SHAW, J.

       {¶1} Defendant-appellant,     Kenneth    Burks   (“Burks”),    appeals   the

September 23, 2010 judgment of the Common Pleas Court of Shelby County,

Ohio, finding him guilty of one count of attempted trafficking in drugs in violation

of R.C. 2925.03 and R.C. 2923.02, a misdemeanor of the first degree, one count of

possession of criminal tools in violation of R.C. 2923.24, a misdemeanor of the

first degree, and two counts of possession of drug paraphernalia in violation of

R.C. 2925.14(C)(1), both misdemeanors of the fourth degree, and sentencing him

to an aggregate sentence of 120 days in jail.

       {¶2} The facts relevant to this appeal are as follows. On September 26,

2009, Timothy Rourke, a game warden, went to Burks’ property to investigate a

complaint of someone hunting on the property without permission. He found an

individual on the property, who showed him a permission slip, purportedly signed

by Burks, allowing him to hunt on the property. Rourke then went to Burks’ home

at 10450 Schenk Road to verify that he signed the slip. Rourke drove his state-

issued game warden truck to Burks’ home, which sits approximately 300 feet from

the roadway, parked in the driveway, and began to walk to the front door. As he

walked along the sidewalk leading to the front door, Rourke noticed a marijuana

plant, approximately 12”-15” tall, growing in a flowerbed next to the sidewalk.

Rourke knocked on Burks’ door, but no one answered. Shortly thereafter, Rourke

                                         -2-
Case No. 17-10-27


notified Deputy Pleiman of the Shelby County Sheriff’s Office that he saw a

marijuana plant growing in Burks’ flowerbed.         This information was later

provided to the S.N.A.R.E. unit of the sheriff’s office, which is the unit charged

with investigating drug-related activity.

       {¶3} Detective Jodi Van Fossen, a detective assigned to the S.N.A.R.E. unit

and two other detectives from the unit went to Burks’ home on September 30,

2009, and saw the marijuana plant growing in the flowerbed. Det. Van Fossen

used a hidden camera inside of her purse and recorded the plant. She then sent

this information to the Bureau of Criminal Identification and Investigation (“BCI”)

for additional confirmation that it was a marijuana plant, and Senior Agent Charlie

Stieglemeyer of BCI observed the recording and agreed that the plant appeared to

be a marijuana plant. Det. Van Fossen knocked on Burks’ door, but no one

answered the door. She then prepared an affidavit based upon the information she

had and procured a search warrant for Burks’ home from a local municipal court

judge that same day.

       {¶4} The drug unit executed the warrant later that day. Burks and his son

were home at that time. They were secured, and officers began searching the

home. During the search, the officers found a bag of marijuana, which weighed

108.68 grams, in a compartment of a dryer. They also found a bag of marijuana,

which weighed 12.24 grams, under some clothing in Burks’ closet. On the floor in

the corner of Burks’ closet, the officers located a white bucket, which contained

                                            -3-
Case No. 17-10-27


another bag of marijuana, weighing 26.8 grams, eleven plastic bags of various

sizes that contained marijuana residue, a pair of rubber gloves, and two additional

plastic bags that did not have any residue inside them. In Burks’ master bathroom,

the officers found an ice bucket with a hand-held digital scale inside it. Another

scale, larger in size, also was found in the bar in Burks’ basement. Under Burks’

mattress, the officers discovered nine one-hundred dollar bills and a twenty-dollar

bill. The officers also found a grinder in another room of the home. Burks

informed the officers that the marijuana and the other items belonged to him and

that the plant in the flowerbed may have come from a seed he previously tossed

away.

        {¶5} On October 22, 2009, Burks was indicted on one count of trafficking

in drugs, a felony of the fifth degree, in violation of R.C. 2925.03(A)(2), and three

counts of possession of criminal tools, each a felony of the fifth degree, in

violation of R.C. 2923.24.1 Burks pled not guilty to each offense, and the matter

proceeded to trial on July 6-7, 2010.

        {¶6} At trial, the State presented a number of witnesses, including law

enforcement officers and laboratory analysts from BCI.                        Burks presented the

testimony of his son and also testified on his own behalf, admitting that all of the

items seized by the State belonged to him but that he only smoked marijuana for

medicinal purposes and did not sell marijuana.                       At the conclusion of the
1
 The trafficking charge also contained a forfeiture specification regarding the money that was found in
Burks’ home, including an additional $100 found in an envelope on the television stand in Burks’ bedroom.

                                                  -4-
Case No. 17-10-27


presentation of the evidence, the jury was provided with instructions and verdict

forms, which included instructions and forms for the lesser included offenses of

attempted trafficking in drugs, possession of drugs, and possession of drug

paraphernalia.

         {¶7} The jury found Burks guilty of one count of attempted trafficking in

drugs, a misdemeanor of the first degree, one count of possession of criminal

tools, a misdemeanor of the first degree, and two counts of possession of drug

paraphernalia, both misdemeanors of the fourth degree. Burks was sentenced on

September 10, 2010, to an aggregate total of 120 days in jail, a fine of $500.00,

and court costs. This appeal followed, and Burks now asserts four assignments of

error.

                          ASSIGNMENT OF ERROR I

         THE TRIAL COURT ERRED WHEN IT HELD THAT THE
         SEARCH WARRANT WAS ADEQUATELY SUPPORTED BY
         PROBABLE CAUSE AND DENIED THE MOTION TO
         SUPPRESS    FILED BY   DEFENDANT-APPELLANT
         (“KENNETH”).

                          ASSIGNMENT OF ERROR II

         THE TRIAL COURT ERRED WHEN IT IMPROPERLY
         OVERRULED KENNETH’S OBJECTION TO PATROLMAN
         JENNINGS BEING QUALIFIED AS AN EXPERT PURSUANT
         TO EVIDENCE RULE 702.




                                        -5-
Case No. 17-10-27


                        ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED WHEN IT OVERRULED
       KENNETH’S RULE 29 MOTION FOR ACQUITTAL WITH
       RESPECT TO COUNT I – TRAFFICKING IN DRUGS.

                        ASSIGNMENT OF ERROR IV

       KENNETH’S CONVICTION UNDER COUNT I FOR THE
       LESSER   INCLUDED    CRIME   OF    ATTEMPTED
       TRAFFICKING IN DRUGS WAS AGAINST THE MANIFEST
       WEIGHT OF THE EVIDENCE.

                                First Assignment of Error

       {¶8} In his first assignment of error, Burks maintains that the trial court

erred in denying his motion to suppress because the warrant was not supported by

probable cause. More specifically, Burks asserts that the only evidence contained

in the affidavit was the observation of “an untended, errant marijuana plant” in his

flowerbed and a report that someone told another officer that he had purchased

marijuana from Burks sometime before the plant in Burks’ flowerbed was

observed by the officers.

       {¶9} The Fourth Amendment to the United States Constitution and Section

14, Article I of the Ohio Constitution guarantee “[t]he right of the people to be

secure in their persons, houses, papers, and possessions, against unreasonable

searches and seizures.”     Accordingly, the State is prohibited from making

unreasonable intrusions into areas where people have legitimate expectations of




                                        -6-
Case No. 17-10-27


privacy without a search warrant. United States v. Chadwick (1977), 433 U.S. 1,

7, overruled on other grounds in California v. Acevedo (1991), 500 U.S. 565.

      {¶10} The Ohio Supreme Court has previously held that

      [i]n determining the sufficiency of probable cause in an affidavit
      submitted in support of a search warrant, “[t]he task of the
      issuing magistrate is simply to make a practical, common-sense
      decision whether, given all the circumstances set forth in the
      affidavit before him * * * there is a fair probability that
      contraband or evidence of a crime will be found in a particular
      place.”

State v. George (1989), 45 Ohio St.3d 325, 544 N.E.2d 640, paragraph one of the

syllabus, quoting Illinois v. Gates (1983), 462 U.S. 213, 238-239. In Gates, the

Court stated that the definition of probable cause “‘means less than evidence

which would justify condemnation * * *.         It imports a seizure made under

circumstances which warrant suspicion.’” Gates, 462 U.S. at 235, quoting Locke

v. United States (1813), 11 U.S. (7 Cranch) 339, 348, 3 L.Ed. 364.             Thus,

“[f]inely-tuned standards such as proof beyond a reasonable doubt or by a

preponderance of the evidence, useful in formal trial, have no place in the

magistrate’s decision. * * * it is clear that ‘only the probability, and not a prima

facie showing, of criminal activity is the standard of probable cause.’” Gates, 462

U.S. at 235, quoting Spinelli v. United States (1969), 393 U.S. 410, 419, abrogated

by Gates, supra.

      {¶11} When reviewing a magistrate’s or judge’s determination of probable

cause justifying the issuance of a search warrant under the totality-of-the-

                                        -7-
Case No. 17-10-27


circumstances analysis of Gates, an appellate court must simply “ensure that the

magistrate had a substantial basis for concluding that probable cause existed.”

George, 45 Ohio St.3d at paragraph two of the syllabus. In fact, often a particular

case may not be easy to determine when an affidavit demonstrates the existence of

probable cause. Accordingly, the issuing judge or magistrate is to be accorded

great deference, “and doubtful or marginal cases in this area should be resolved in

favor of upholding the warrant.” Id., citing Gates, supra. Thus, the precise

question before this Court in this case is simply whether we can say that Det. Van

Fossen’s affidavit provided a substantial basis for the judge’s conclusion that there

was a fair probability that illegal drugs or related paraphernalia would be found in

Burks’ residence.

       {¶12} Here, Burks asserts that the affidavit did not contain sufficient

information to determine that probable cause existed to justify the issuance of a

warrant. First, Burks contends that the affidavit contained unreliable hearsay. The

averment with which he takes issue states, “[w]ithin the past several months, the

S.N.A.R.E. Unit has received intelligence that Kenneth Burks has been selling and

growing marijuana at his residence[.]” The affidavit does not name the source of

this intelligence or include any information to indicate the source’s credibility,

honesty, or reliability. During the suppression hearing, Det. Van Fossen testified

that the drug unit received this information from a trooper who conducted a traffic



                                         -8-
Case No. 17-10-27


stop of an individual, whose name Det. Van Fossen did not know, and that this

individual told the trooper that he purchased marijuana from Burks.

         {¶13} “[W]ith regard to confidential or anonymous informants, their

veracity, reliability and basis of knowledge are all highly relevant in determining

probable cause, so ‘[t]here must be some basis in the affidavit to indicate the

informant’s credibility, honesty or reliability.’” State v. Pustelnik, 8th Dist. No.

91779, 2009-Ohio-3458, ¶ 22, quoting State v. Harry, 12th Dist. No. CA2008-01-

0013, 2008-Ohio-6380 (internal citations omitted). However, a failure of the

affiant to attest to the informant’s veracity or reliability based on past experience

“does not negate probable cause if there is * * * some other indicia of reliability.”

Pustelnik, supra, citing Gates, supra. Thus, an identified informant who provides

corroborated information may establish probable cause. See State v. Martin, 8th

Dist. No. 89030, 2007-Ohio-6062.

         {¶14} In this case, we agree with Burks that the information regarding the

receipt of intelligence by the drug unit that Burks was selling marijuana from his

home did not provide the issuing judge with a substantial basis for concluding that

there was a fair probability that illegal drugs or related paraphernalia would be

found in Burks’ residence given the lack of identification of the source or any

indicia that this information was reliable. However, our inquiry does not end

there.



                                         -9-
Case No. 17-10-27


       {¶15} Burks further contends that the observation of “an untended, errant

marijuana plant” in his flowerbed was not sufficient to support the issuance of the

search warrant. However, his characterization of this information is not accurate

as there was no evidence that this plant was either untended or errant.

       {¶16} The affidavit in this case describes a growing marijuana plant in a

flowerbed next to the house in the front yard of Burks’ residence, observed by a

law enforcement officer, Det. Van Fossen, who had participated in numerous drug

investigations, and who determined based upon her training and experience that

the plant appeared to be marijuana. This plant was also observed by a game

warden the preceding week, who also believed that the plant was a marijuana plant

and, accordingly, he reported this observation to the drug unit. Further, Det. Van

Fossen used a hidden camera to record her findings, sent the video of the plant to

BCI, and had her opinion that it was a marijuana plant confirmed by a senior agent

at BCI. Based upon her training and experience, Det. Van Fossen stated that

marijuana starter plants are grown inside and then transplanted outside and that

given the growing marijuana plant in the flowerbed next to Burks’ house, there

was likely to be more marijuana plants and cultivation equipment inside of the

home. Thus, she requested a search warrant for Burks’ residence.

       {¶17} While these facts may be minimal, we do not believe that a

reviewing court can say that a neutral and detached judge confronted with this

affidavit had no substantial basis for concluding that there was a fair probability

                                        -10-
Case No. 17-10-27


that marijuana or paraphernalia related to marijuana would be found in the

residence. On the contrary, the marijuana plant was located in a flowerbed in

Burks’ front yard next to his house. As noted in George, a case that also involved

the issuance of a search warrant based solely upon an observation by a trained law

enforcement officer of a single marijuana plant growing in the yard of the

defendant, the presence of growing marijuana in a yard

       does not normally occur spontaneously in Ohio and, in this era,
       the presence of such a plant must be said to raise objective and
       reasonable inferences amounting to a fair probability, in the
       words of Judge Black, “* * * that the marijuana is intentionally
       grown, and that within the house will be found instruments for
       its cultivation and some marijuana prepared or being prepared
       for use.”

George, 45 Ohio St.3d at 326, 330, quoting State v. George, 1st Dist. No. C-

870111, unreported, 1988 WL 6523 (Black, J., dissenting). Therefore, as the Ohio

Supreme Court concluded in George, we find that the evidence in the case sub

judice sufficiently supported the judge’s determination that there was probable

cause to issue the warrant.

       {¶18} However, even were we to determine that this affidavit did not

furnish the judge with a substantial basis for concluding that there was probable

cause to search the house, we would be compelled, nevertheless, to uphold this

search based upon the “good faith exception” to the exclusionary rule set forth in

United States v. Leon (1984), 468 U.S. 897, and adopted by the Ohio Supreme

Court in State v. Wilmoth (1986), 22 Ohio St.3d 251, 490 N.E.2d 1236. In Leon,

                                      -11-
Case No. 17-10-27


the Court held that the Fourth Amendment exclusionary rule should not be applied

so as to bar the State’s use of evidence obtained by officers acting in objectively

reasonable reliance on a search warrant issued by a detached and neutral

magistrate but ultimately found to be unsupported by probable cause. Id. at 918-

923, 926. More specifically, the Court held that

       “[t]he deterrent purpose of the exclusionary rule necessarily
       assumes that the police have engaged in willful, or at the very
       least negligent, conduct which has deprived the defendant of
       some right. * * * Where the official action was pursued in
       complete good faith, however, the deterrence rationale loses
       much of its force.” Michigan v. Tucker (1974), 417 U.S. 433, 447.
       * * * This is particularly true, we believe, when an officer acting
       with objective good faith has obtained a search warrant from a
       judge or magistrate and acted within its scope. In most such
       cases, there is no police illegality and thus nothing to deter. * * *
       In the ordinary case, an officer cannot be expected to question
       the magistrate’s probable-cause determination or his judgment
       that the form of the warrant is technically sufficient. * * *
       Penalizing the officer for the magistrate’s error, rather than his
       own, cannot logically contribute to the deterrence of Fourth
       Amendment violations.”

Leon, supra, at 920-92. (Footnotes omitted.) However, “the officer’s reliance on

the magistrate’s probable-cause determination * * * must be objectively

reasonable[.]” Id. at 922, 104 S.Ct. at 3420.

       {¶19} In this case, there is no suggestion of falsity or reckless disregard for

the truth on the part of the affiant. Nor is there any indication that the municipal

judge wholly abandoned his judicial role in issuing this warrant. Nor can we say,

from the standpoint of the law enforcement officers, that this warrant, which was


                                        -12-
Case No. 17-10-27


approved by a judge, is so lacking in indicia of probable cause as to render official

belief in its existence entirely unreasonable or so facially deficient that the

executing officers could not reasonably presume it to be valid. Accordingly, we

find that this search falls squarely within the good faith exception to the

exclusionary rule set forth in Leon and Wilmoth, and should be upheld even were

the warrant lacking in probable cause as alleged.

       {¶20} For both these reasons, we find that the trial court did not err in

denying the motion to suppress, and the first assignment of error is overruled.

                               Second Assignment of Error

       {¶21} Burks next contends that the trial court erred when it qualified

Officer James Jennings as an expert in the area of purchasing and selling narcotics.

Burks asserts that the State failed to notify him that Off. Jennings was being called

to testify as an expert witness, that the State failed to comply with Evid.R. 702(A)

and (C) in having Off. Jennings qualified as an expert, and that if Off. Jennings

was an expert, he was only an expert on “typical,” “street users,” not on people

who use marijuana for medicinal purposes.

       {¶22} The trial court has sound discretion to determine an expert witness’

qualifications to testify on a particular subject. State v. Jones, 90 Ohio St.3d 403,

414, 2000-Ohio-187, 739 N.E.2d 300, citing State v. Awkal, 76 Ohio St.3d 324,

331, 1996-Ohio-395, 667 N.E.2d 960. Therefore, any decision concerning the

admission or exclusion of expert testimony will not be disturbed absent an abuse

                                        -13-
Case No. 17-10-27


of discretion. Jones, supra, citing State v. Bidinost, 71 Ohio St.3d 449, 453, 1994-

Ohio-465, 644 N.E.2d 318.

       {¶23} Initially, we note that at trial, counsel for Burks objected to Off.

Jennings being qualified as an expert but provided no basis for this objection.

Additionally, the record reveals that Off. Jennings was listed as a witness in the

discovery provided by the State and that at no point did trial counsel indicate that

the defense did not know that Off. Jennings was a potential witness, that the

defense did not know the State would be calling him as an expert, or that the

defense was somehow prejudiced by the State failing to provide this information

to Burks’ counsel nor does Burks’ brief to this Court indicate how he was unfairly

prejudiced by not knowing that the State intended to use Off. Jennings as an expert

witness. Accordingly, we find Burks’ assertion that he was unfairly prejudiced in

this regard to be without merit.

       {¶24} As to his remaining claims, the Rules of Evidence provide that expert

testimony must meet the criteria of Evid.R. 702, which states,

       [a] witness may testify as an expert if * * *: (A) The witness’
       testimony either relates to matters beyond the knowledge or
       experience possessed by lay persons * * *; (B) The witness is
       qualified as an expert by specialized knowledge, skill,
       experience, training, or education regarding the subject matter
       of the testimony; (C) The witness’ testimony is based on reliable
       scientific, technical or other specialized information. * * *

Evid.R. 702. Burks maintains that the State failed to satisfy Divisions (A) and (C)

of this Rule.

                                       -14-
Case No. 17-10-27


      {¶25} In application of Evid.R. 702 to the case at bar, the record indicates

that Off. Jennings was a law enforcement officer for seventeen years, nearly nine

of those years spent in the drug unit. He attended 160 hours of training directly

involving drugs, weights, measures, and purchasing of drugs. He worked with

various drug task forces, purchasing drugs at both the street level and with mid-

level dealers. He testified that he has made anywhere from three hundred to five

hundred hand-to-hand controlled buys of marijuana and various other narcotics

and that his marijuana purchases ranged from a single joint up to two pounds of

marijuana at a time.    He then testified regarding how a typical purchase of

marijuana occurs, what street lingo is typically used in the marijuana trade and the

language employed to describe various units of measurement, the role of digital

scales in the marijuana trade, and what other items are commonly used in the

marijuana trade.

      {¶26} Off. Jennings’ testimony clearly related to matters beyond the

knowledge or experience possessed by law-abiding lay persons, thus satisfying the

requirements of Evid.R. 702(A).        Further, his testimony was based upon

specialized information that he acquired from participating in hundreds of drug

investigations over a nearly nine-year span of time, thus satisfying the

requirements of Evid.R. 702(C).

      {¶27} Moreover, the State’s theory of the case was that Burks was

trafficking in marijuana, not that he was simply someone who used marijuana for

                                       -15-
Case No. 17-10-27


his personal medical issues as Burks purported. Therefore, whether Off. Jennings

was an expert on marijuana users who smoke marijuana for medicinal purposes

was not relevant to whether he was qualified to provide expert testimony regarding

the purchasing and selling of marijuana.        Rather, his testimony adequately

satisfied the requirements of Evid.R. 702(A) and (C), and the trial court did not err

in qualifying him as an expert in the purchasing and selling of narcotics. For these

reasons, the second assignment of error is overruled.

                                Third Assignment of Error

       {¶28} In his third assignment of error, Burks contends that the trial court

erred in overruling his motion for acquittal as to Count One, the count of

trafficking in drugs.   Burks bases this assertion upon the lack of any direct

evidence, via controlled buys, the testimony of an informant, or other evidence of

a growing operation, that he was trafficking in drugs.

       {¶29} Reviewing a challenge to the sufficiency of the evidence requires this

Court to examine the evidence in the light most favorable to the prosecution. The

Ohio Supreme Court has set forth the sufficiency of the evidence test as follows:

       [A]n appellate court’s function when reviewing the sufficiency of
       the evidence to support a criminal conviction is to examine the
       evidence admitted at trial and 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.

                                        -16-
Case No. 17-10-27



State v. Jenks (1991), 61 Ohio St.3d 259, 273, 574 N.E.2d 492.

       {¶30} Here, Burks was charged with trafficking in drugs in violation of

R.C. 2925.03(A)(2), which states that “[n]o person shall knowingly do any of the

following: * * * (2) Prepare for shipment, ship, transport, deliver, prepare for

distribution, or distribute a controlled substance, when the offender knows or has

reasonable cause to believe that the controlled substance is intended for sale or

resale by the offender or another person.” Burks maintains that there was no

direct evidence that he prepared for shipment, shipped, transported, delivered,

prepared for distribution, or distributed marijuana. However, the Ohio Supreme

Court has held,

       [c]ircumstantial evidence and direct evidence inherently possess
       the same probative value and therefore should be subjected to
       the same standard of proof.        When the state relies on
       circumstantial evidence to prove an essential element of the
       offense charged, there is no need for such evidence to be
       irreconcilable with any reasonable theory of innocence in order
       to support a conviction.

Id. at paragraph one of the syllabus. Additionally, R.C. 2925.03(A)(2) does not

require that the offender actually sell marijuana.

       {¶31} The State presented evidence that Burks had multiple bags of

marijuana, some larger than others, in various locations in his home, that he had

both a small digital scale and a large digital scale, that he also had a grinder that is

used to grind marijuana leaves down so that it can be smoked, and that one of the


                                         -17-
Case No. 17-10-27


bags of marijuana was found in a bucket that also contained a pair of gloves and a

number of clear, plastic baggies, eleven of which contained marijuana residue. In

addition, the evidence showed that a marijuana plant was growing in Burks’

flowerbed and that he admitted that the marijuana in the home belonged to him.

The State also presented the testimony of Off. Jennings, who testified that drug

dealers often buy marijuana in bulk, weigh it, and then break it down into smaller

bags to sell. He further testified that digital scales, both large and small, are used

by dealers to properly break down the marijuana and that rubber gloves are often

used by those in the drug trade when preparing the marijuana for sale because it is

sticky.     Off. Jennings also testified that in his experience, those who smoke

marijuana joints do not weigh the amount of marijuana being placed into their

joint.

          {¶32} Given this evidence and construing it in a light most favorable to the

prosecution, reasonable minds could have found the essential element that Burks

prepared marijuana for shipment or prepared it for distribution was proven beyond

a reasonable doubt. Further, $920.00 was found under Burks’ mattress in the

room where much of the evidence was discovered, which could also lead to the

reasonable inference that he shipped, transported, or delivered marijuana and was

paid for this service. Thus, for all of these reasons, the third assignment of error is

overruled.



                                          -18-
Case No. 17-10-27


                               Fourth Assignment of Error

       {¶33} Burks asserts in his fourth assignment of error that the verdict of

guilty as to the lesser included offense of attempted trafficking in drugs was

against the manifest weight of the evidence. 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-Ohio-52, 678 N.E.2d 541.         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, 3rd Dist. No. 1-05-70, 2006-Ohio-3764,

citing State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717;

Thompkins, 78 Ohio St.3d at 387, 678 N .E.2d 541.

       {¶34} The jury found Burks guilty of attempted trafficking in drugs. In

order to have made this determination, the jury had to find beyond a reasonable

doubt that Burks knowingly engaged in conduct that, if successful, would

constitute or result in the offense of trafficking in drugs. See R.C. 2925.03(A)(2);



                                        -19-
Case No. 17-10-27


R.C. 2923.02(A).     In interpreting what constitutes an attempt pursuant to R.C.

2923.02(A), the Ohio Supreme Court has held as follows:

       In State v. Woods, supra, 48 Ohio St.2d 127, 2 O.O.3d 289, 357
       N.E.2d 1059, paragraph one of the syllabus, we defined a
       “criminal attempt” as “an act or omission constituting a
       substantial step in a course of conduct planned to culminate in
       [the actor’s] commission of the crime.” A “substantial step”
       requires conduct that is “strongly corroborative of the actor’s
       criminal purpose.” Id. With reference to “overt acts,” we said
       in Woods that the “substantial step” standard “properly direct[s]
       attention to overt acts of the defendant which convincingly
       demonstrate a firm purpose to commit a crime, while allowing
       police intervention * * * in order to prevent the crime when the
       criminal intent becomes apparent.” Id. at 132, 2 O.O.3d 289,
       357 N.E.2d 1059. Thus, we conclude that an “overt act” is
       simply an act that meets the “substantial step” criterion
       enunciated in Woods.

State v. Group, 98 Ohio St.3d 248, 2002-Ohio-7247, 781 N.E.2d 980, ¶¶ 101-102.

       {¶35} As noted in our discussion of the third assignment of error, the

evidence showed that law enforcement found marijuana and a number of items

used to prepare and/or distribute marijuana for sale or resale in Burks’ home when

the search was conducted. Although Burks testified that he did not sell marijuana

and the items found in his home were for personal, medicinal use due to a severe

injury he received at work a number of years ago for which he had multiple

surgeries, we cannot conclude based on the evidence before the jury that the jury

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

conviction must be reversed and a new trial ordered.       Therefore, the fourth

assignment of error is overruled.

                                       -20-
Case No. 17-10-27


       {¶36} For all of these reasons, the judgment of the Common Pleas Court of

Shelby County, Ohio, is affirmed.

                                                            Judgment Affirmed

PRESTON and WILLAMOWSKI, J.J., concur.

/jnc




                                      -21-
