[Cite as State v. Stacy, 2020-Ohio-536.]


                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                        PIKE COUNTY


STATE OF OHIO,                              :      Case No. 18CA895

        Plaintiff-Appellee,                 :

v.                                          :      DECISION AND
                                                   JUDGMENT ENTRY
WILLIAM RAY STACY,                          :

     Defendant-Appellant.       :     RELEASED 02/03/2020
______________________________________________________________________
                            APPEARANCES:

Richard M. Nash, Jr., Portsmouth, Ohio, for appellant.

Robert Junk, Pike County Prosecutor, and Marie Hoover, Assistant Pike County
Prosecutor, Waverly, Ohio, for appellee.
______________________________________________________________________
Hess, J.

        {¶1}     William Ray Stacy appeals his conviction for trafficking in heroin, a fourth-

degree felony. Stacy contends that the trial court erred when it denied his motion to

suppress evidence because law enforcement lacked reasonable suspicion to initiate the

traffic stop that resulted in the discovery of 99.96 grams of heroin. However, the trial

court was free to believe the testimony of a police sergeant that he observed a marked

lanes violation. Therefore, we reject Stacy’s argument.

        {¶2}     Stacy also contends that his conviction for a fourth-degree felony is not

supported by sufficient evidence or is against the manifest weight of the evidence

because the evidence did not support the jury’s finding that the amount of heroin

involved equaled or exceeded one gram but was less than five grams. However, 99.96

grams of heroin includes an amount of heroin that equals or exceeds one gram but is
Pike App. No. 18CA895                                                                    2


less than five grams. Accordingly, sufficient evidence supports the conviction and it is

not against the manifest weight of the evidence. We affirm the trial court’s judgment.

                       I. FACTS AND PROCEDURAL HISTORY

       {¶3}   On February 2, 2017, Deputy Brock Clemmons of the Pike County

Sheriff’s Department received information from an anonymous caller that Stacy would

be bringing a large shipment of heroin from Columbus southbound on U.S. Route 23 in

a silver Chrysler van. Deputy Clemmons relayed this information to Lieutenant Jim

Burchett of the Pike County Sheriff’s Office, and they coordinated with the Waverly

Police Department and Piketon Police Department to intercept the van. Lieutenant

Burchett instructed Sergeant Christopher Mosley of the Piketon Police Department to

stop the van “if probable cause existed,” and Sergeant Mosley told his chief that he

“was going to go see if I could stop it.” Sergeant Mosley positioned himself near U.S.

Route 23 in the Village of Piketon to intercept the van, Lieutenant Burchett and Deputy

Clemmons stationed themselves south of Piketon, and another officer was at a third

location.

       {¶4}   According to Sergeant Mosley, after waiting about 50 minutes to an hour,

he spotted the van, pulled out behind it, and observed Stacy “cross over the right edge

line of the roadway, by more than half of his vehicle.” Sergeant Mosley did not

immediately initiate a traffic stop but instead waited until he and Stacy reached a

location where Sergeant Mosley thought they could “pull off the roadway safely.” During

the stop, Sergeant Mosley commented that Stacy had “swerved off the road pretty bad,”

and Stacy said that his passenger had been sick and something to the effect that he

was “trying to render aid or stop her from puking in his van.” The stop resulted in the
Pike App. No. 18CA895                                                                                 3


discovery of four plastic-wrapped balls of heroin that collectively contained 99.96 grams

of heroin. It also resulted in the discovery of 1.61 grams of cocaine on Stacy’s person.

A search of Stacy’s home, pursuant to a search warrant, resulted in the discovery of

$17,303.51 in cash.

        {¶5}    Sergeant Mosley issued Stacy a traffic citation for a marked lanes

violation. The Piketon Mayor’s Court later dismissed that case at the request of the

Piketon Village Solicitor. According to Stacy, the case was dismissed due to lack of

evidence, but in court records, the solicitor represented that the request was “not based

upon lack of probable cause” and related to the existence of the “companion felony

case pending in Pike County Court of Common Pleas.”

        {¶6}    The Pike County grand jury indicted Stacy on one count each of (1)

possession of heroin, a first-degree felony because the amount of heroin equaled or

exceeded 50 grams but was less than 100 grams, see R.C. 2925.11(C)(6)(e); (2)

trafficking in heroin, a first-degree felony because the amount of heroin equaled or

exceeded 50 grams but was less than 100 grams, see R.C. 2925.03(C)(6)(f); (3)

possession of cocaine, a fifth-degree felony because the amount of cocaine was less

than five grams, see R.C. 2925.11(C)(4)(a); and (4) receiving stolen property, a fourth-

degree felony because the property was a firearm, see R.C. 2913.51(C).1 The

possession of heroin, trafficking in heroin, and receiving stolen property charges each

included forfeiture specifications for the $17,303.51 in cash and the van.




1The indictment listed the name of the first count as aggravated possession of drugs, the second count
as aggravated trafficking in drugs, and the third count as possession of drugs. We have used the correct
names for these offenses based on the other information in the indictment. The trial court used the
correct names in the jury instructions and verdict forms.
Pike App. No. 18CA895                                                                      4


       {¶7}   Stacy pleaded not guilty and filed a motion to suppress. At the hearing on

the motion, Sergeant Mosley testified about the traffic violation. Stacy testified that while

north of Piketon, he pulled over so his passenger could throw up, but while driving in

Piketon, he never travelled over the right edge line. Stacy claimed that during the traffic

stop, Sergeant Mosley admitted that he did not see a traffic violation and stated that

“Burchett had called him and said that [Stacy] had went across the line before [he] got

to Piketon.” Stacy’s friend, Robert Russell, testified that while driving on the day in

question, he saw Stacy’s van on the side of the road. Stacy pulled onto the road, and

Russell followed him into Piketon. Russell saw a Piketon police officer pull out in front

of him and behind Stacy and later saw the officer turn on his cruiser lights. Russell did

not see Stacy travel over the right edge line. The court denied the motion to suppress.

Relevant here, the court found Sergeant Mosley’s testimony about the traffic violation

was credible, and the violation justified the stop.

       {¶8}   Prior to trial, the state dismissed the receiving stolen property count. The

jury found Stacy not guilty of possession of heroin and possession of cocaine. The jury

found him guilty of trafficking in heroin. The verdict form for that count gave the jury five

options for the amount of heroin involved: (1) less than one gram; (2) equal to or

exceeding one gram but less than five grams; (3) equal to or exceeding five grams but

less than 10 grams, (4) equal to or exceeding 10 grams but less than 50 grams; and (5)

equal to or exceeding 50 grams but less than 100 grams. The jury found that the

amount equaled or exceeded one gram but was less than five grams of heroin—a

fourth-degree felony. The jury also found that Stacy had to forfeit the van but not the

cash. The court sentenced Stacy to three years of community control.
Pike App. No. 18CA895                                                                 5


                           II. ASSIGNMENTS OF ERROR

      {¶9}   Stacy presents two assignments of error:

      I.     THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW TO
             CONVICT APPELLANT OF TRAFFICKING IN MORE THAN ONE
             GRAM, BUT LESS THAN FIVE GRAMS OF HERION [sic]; OR, IN
             THE ALTERNATIVE, THE CONVICTION IS AGAINST THE
             MANIFEST WEIGHT OF THE EVIDENCE.

      II.    THE TRIAL COURT ERRED IN DENYING APPELLANT’S
             MOTION TO SUPPRESS EVIDENCE, IN VIOLATION OF THE
             FOURTH   AMENDMENT     TO   THE    UNITED    STATES
             CONSTITUTION, AND SECTION 14, ARTICLE I OF THE OHIO
             CONSTITUTION, IN THAT THE STATE DID NOT HAVE
             REASONABLE SUSPICION TO MAKE AN INVESTIGATE [sic]
             STOP.

For ease of discussion, we address the assignments of error out of order.

                           III. MOTION TO SUPPRESS

      {¶10} In the second assignment of error, Stacy contends that the trial court erred

when it denied his motion to suppress because Sergeant Mosley lacked reasonable

suspicion to initiate an investigative stop. Stacy contends that Sergeant Mosley’s

testimony about the marked lanes violation lacked credibility. Stacy highlights the fact

that two witnesses—Russell and himself—testified that no marked lanes violation

occurred and the fact that Sergeant Mosley did not initiate a traffic stop immediately

after observing the alleged violation. Stacy asserts that Sergeant Mosley only initiated

the stop when Stacy exited the highway into a private parking lot and “[a]ny opportunity

to observe a traffic violation had ended.” Stacy also emphasizes the fact that “three

separate law enforcement groups were notified to stop” him, there were “stake outs” for

him, and Sergeant Mosley said that he would try to stop Stacy and waited nearly an

hour to do so. Stacy asserts that when an officer has an ulterior motive for a stop
Pike App. No. 18CA895                                                                    6


“courts should apply heightened scrutiny in determining whether an offense actually

occurred.”

      {¶11} Generally “appellate review of a motion to suppress presents a mixed

question of law and fact.” State v. Codeluppi, 139 Ohio St.3d 165, 2014-Ohio-1574, 10

N.E.3d 691, ¶ 7, citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797

N.E.2d 71, ¶ 8. The Supreme Court of Ohio has explained:

      When considering a motion to suppress, the trial court assumes the role of
      trier of fact and is therefore in the best position to resolve factual questions
      and evaluate the credibility of witnesses. Consequently, an appellate
      court must accept the trial court’s findings of fact if they are supported by
      competent, credible evidence. Accepting these facts as true, the appellate
      court must then independently determine, without deference to the
      conclusion of the trial court, whether the facts satisfy the applicable legal
      standard.

(Citations omitted.) Burnside at ¶ 8.

      {¶12} “The Fourth Amendment to the United States Constitution and the Ohio

Constitution, Article I, Section 14, prohibit unreasonable searches and seizures.” State

v. Emerson, 134 Ohio St.3d 191, 2012-Ohio-5047, 981 N.E.2d 787, ¶ 15. The Supreme

Court of Ohio has held that these provisions provide the same protection in felony

cases. State v. Hawkins, ___ Ohio St.3d ___, 2019-Ohio-4210, ___ N.E.3d ___, ¶ 18,

citing State v. Jones, 143 Ohio St.3d 266, 2015-Ohio-483, 37 N.E.3d 123, ¶ 12. “This

constitutional guarantee is protected by the exclusionary rule, which mandates the

exclusion at trial of evidence obtained from an unreasonable search and seizure.” State

v. Petty, 4th Dist. Washington Nos. 18CA26 & 18CA27, 2019-Ohio-4241, ¶ 11.

      {¶13} “ ‘[S]earches [and seizures] conducted outside the judicial process,

without prior approval by judge or magistrate, are per se unreasonable under the Fourth

Amendment—subject only to a few specifically established and well-delineated
Pike App. No. 18CA895                                                                     7


exceptions.’ ” (Alterations sic. Footnote omitted sic.) State v. Conley, 4th Dist. Adams

No. 19CA1091, 2019-Ohio-4172, ¶ 17, quoting Katz v. United States, 389 U.S. 347,

357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). “Once a defendant demonstrates that he or

she was subjected to a warrantless search or seizure, the burden shifts to the state to

establish that the warrantless search or seizure was constitutionally permissible.” State

v. Dorsey, 4th Dist. Scioto No. 19CA3874, 2019-Ohio-3478, ¶ 13.

       {¶14} This case involved a warrantless investigatory stop, which “must be

supported by a reasonable, articulable suspicion that the driver has, is, or is about to

commit a crime, including a minor traffic violation.” Petty at ¶ 12. In Petty, we recently

explained:

       “To justify a traffic stop based upon reasonable suspicion, the officer must
       be able to articulate specific facts that would warrant a person of
       reasonable caution to believe that the driver has committed, or is
       committing, a crime, including a minor traffic violation.” State v. Taylor,
       2016-Ohio-1231, 62 N.E.3d 591, ¶ 18 (4th Dist.). The existence of
       reasonable suspicion depends on whether an objectively reasonable
       police officer would believe that the driver’s conduct constituted a traffic
       violation based on the totality of the circumstances known to the officer at
       the time of the stop.

             Moreover, a police officer may stop the driver of a vehicle after
       observing even a de minimis violation of traffic laws. “[A] traffic stop with
       the proper standard of evidence is valid regardless of the officer’s
       underlying ulterior motives as the test is merely whether the officer ‘could’
       have performed the act complained of; pretext is irrelevant if the action
       complained of was permissible.” See State v. Koczwara, 7th Dist.
       Mahoning No. 13MA149, 2014-Ohio-1946, ¶ 22, citing [Dayton v.
       Erickson, 76 Ohio St.3d 3, 7, 11, 665 N.E.2d 1091 (1996)].

(Citations omitted. First alteration sic.) Id. at ¶ 12-13.

       {¶15} The trial court was free to believe Sergeant Mosley’s testimony that he

observed a marked lanes violation but waited to initiate a traffic stop until it was safe to

do so. Even though two witnesses testified that no violation occurred, “[s]heer number
Pike App. No. 18CA895                                                                         8


of witnesses testifying to a fact * * * is not the test of whether that fact is true.” Wright v.

Suzuki Motor Corp., 4th Dist. Meigs Nos. 03CA2, 03CA3, 03CA4, 2005-Ohio-3494, ¶

145.   “The trier of fact is free to believe all, part, or none of the testimony of any

witness[.]” State v. Hammond, 4th Dist. Ross No. 18CA3662, 2019-Ohio-4253, ¶ 56.

We accord deference to the trier of fact on credibility issues because “it is in the best

position to gauge the witnesses’ demeanor, gestures, and voice inflections, and to use

these observations to weigh their credibility.”       Id.   The trial court found Sergeant

Mosley’s testimony credible, and we will not disturb its finding under these

circumstances.

       {¶16} The trial court’s finding that Sergeant Mosley observed a marked lanes

violation is supported by competent, credible evidence, and based on that violation,

Sergeant Mosley had reasonable suspicion to initiate the stop. Accordingly, we overrule

the second assignment of error.

           IV. SUFFICIENCY AND MANIFEST WEIGHT OF THE EVIDENCE

       {¶17} In the first assignment of error, Stacy contends that his conviction is not

supported by sufficient evidence or is against the manifest weight of the evidence.

       {¶18} “When a court reviews a record for sufficiency, ‘[t]he 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.’ ” (Alteration sic.) State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-

1019, 9 N.E.3d 930, ¶ 146, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492

(1991), paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 99
Pike App. No. 18CA895                                                                     9


S.Ct. 2781, 61 L.Ed.2d 560 (1979).        In State v. Anderson, 4th Dist. Highland No.

18CA14, 2019-Ohio-395, we recently explained:

       A sufficiency assignment of error challenges the legal adequacy of the
       state’s prima facie case, not its rational persuasiveness. “That limited
       review does not intrude on the jury’s role ‘to resolve conflicts in [the]
       testimony, to weigh the evidence, and to draw reasonable inferences from
       basic facts to ultimate facts.’ ” Musacchio v. United States, ___ U.S. ___,
       136 S.Ct. 709, 715, 193 L.Ed.2d 639 (2016), quoting Jackson at 319 * * *.

               By contrast in determining whether a criminal conviction is against
       the manifest weight of the evidence, we must 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 reversal of the conviction is necessary. In order
       to satisfy this test, the state must introduce substantial evidence on all the
       elements of an offense, so that the jury can find guilt beyond a reasonable
       doubt.

               Although a court of appeals may determine that a judgment of a
       trial court is sustained by sufficient evidence, that court may nevertheless
       conclude that the judgment is against the weight of the evidence.
       However, we are reminded that generally, it is the role of the jury to
       determine the weight and credibility of evidence. “ ‘A jury, sitting as the
       trier of fact, is free to believe all, part or none of the testimony of any
       witness who appears before it.’ ” State v. Reyes-Rosales, 4th Dist. Adams
       No. 15CA1010, 2016-Ohio-3338, ¶ 17, quoting State v. West, 4th Dist.
       Scioto No. 12CA3507, 2014-Ohio-1941, ¶ 23. We defer to the trier of fact
       on these evidentiary weight and credibility issues because it is in the best
       position to gauge the witnesses’ demeanor, gestures, and voice
       inflections, and to use these observations to weigh their credibility.

(Citations omitted.) Id. at ¶ 13-15.

       {¶19} R.C. 2925.03(A)(2) makes it crime to knowingly “transport * * * 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.” The degree of the offense depends on the amount and type of drug being

trafficked. Relevant here, “[i]f the drug involved in the violation is heroin or a compound,
Pike App. No. 18CA895                                                                      10


mixture, preparation, or substance containing heroin” and “[i]f the amount of the drug

involved * * * equals or exceeds fifty grams but is less than one hundred grams * * *

trafficking in heroin is a felony of the first degree[.]” R.C. 2925.03(C)(6)(f). However, “if

the amount of the drug involved * * * equals or exceeds one gram but is less than five

grams, trafficking in heroin is a felony of the fourth degree[.]” R.C. 2925.03(C)(6)(c).

       {¶20} Stacy maintains that the jury could not find him guilty of a fourth-degree

felony because there is no evidence that he trafficked an amount of heroin that equaled

or exceeded one gram but was less than five grams. Rather, he asserts that the only

evidence was that law enforcement seized four balls of heroin that collectively weighed

99.96 grams, which is in the range for a first-degree felony. Essentially, Stacy argues

that the jury had to either convict him of a first-degree felony or acquit him.

       {¶21} Stacy’s argument is not well-taken. 99.96 grams of heroin includes an

amount of heroin that equals or exceeds one gram but is less than five grams of heroin.

That fact is not somehow nullified because the jury could have found Stacy guilty of

trafficking a greater amount of heroin than it did. Although Stacy suggests that the jury

had to either convict him of a first-degree felony or acquit him, he did not object to the

jury instructions or verdict form for the trafficking in heroin count, which allowed the jury

to consider five options for the amount of heroin. Stacy also did not challenge the

instructions or verdict form on appeal.

       {¶22} Sufficient evidence supported the conviction for fourth-degree felony

trafficking in heroin, and the conviction is not against the manifest weight of the

evidence. Accordingly, we overrule the first assignment of error.
Pike App. No. 18CA895                                                          11


                                V. CONCLUSION

      {¶23} Having overruled the assignments of error, we affirm the trial court’s

judgment.

                                                          JUDGMENT AFFIRMED.
Pike App. No. 18CA895                                                                       12


                                    JUDGMENT ENTRY

         It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.

         The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Pike
County Court of Common Pleas to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

Smith, P.J. & Hall, J.*: Concur in Judgment and Opinion.

                                           For the Court


                                           BY: ________________________
                                               Michael D. Hess, Judge




                                  NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.


*Judge Michael T. Hall, Second District Court of Appeals, sitting by assignment of the
Supreme Court of Ohio in the Fourth Appellate District.
