[Cite as State v. Parks, 2020-Ohio-145.]




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



STATE OF OHIO,
                                                         CASE NO. 13-19-18
       PLAINTIFF-APPELLEE,

       v.

FRISCO W. PARKS,                                         OPINION

       DEFENDANT-APPELLANT.




STATE OF OHIO,
                                                         CASE NO. 13-19-19
       PLAINTIFF-APPELLEE,

       v.

FRISCO W. PARKS,                                         OPINION

       DEFENDANT-APPELLANT.




                  Appeal from Seneca County Common Pleas Court
                    Trial Court No. 18-CR-0189 and 19-CR-0001

        Judgments Affirmed in Part, Reversed in Part, Cause Remanded

                            Date of Decision: January 21, 2020
Case Nos. 13-19-18 and 13-19-19



APPEARANCES:

       Jennifer L. Kahler for Appellant

       Derek W. Devine for Appellee



WILLAMOWSKI, J.


       {¶1} Defendant-appellant Frisco W. Parks (“Parks”) appeals the judgments

of the Seneca County Court of Common Pleas, arguing (1) that two counts of which

he was convicted and sentenced are allied offenses of similar import; (2) that his

conviction is not supported by sufficient evidence; (3) that his conviction is against

the manifest weight of the evidence; and (4) that the trial court erred by ordering

him to pay court appointed counsel fees. For the reasons set forth below, the

judgments of the trial court are affirmed in part and reversed in part.

                           Facts and Procedural History

       {¶2} Parks was placed on probation on March 18, 2018. Tr. 112. In August

of 2018, Officer Chaz Boes (“Officer Boes”), who works for the Ohio Department

of Rehabilitation and Correction as a State Probation Parole Officer, had Parks’s

case assigned to him. Tr. 106, 112. On August 10, 2018, Officer Boes went to the

house where Parks lived with his mother, sister, sister’s boyfriend, and sister’s two




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children. Tr. 115-116. At this time, Parks’s girlfriend was also present. Tr. 115-

116.

       {¶3} During his visit, Officer Boes discovered a bag of marijuana and then

found baggies that contained a number of pills in a shirt pocket in Parks’s bedroom.

Tr. 108-109. At this point, Officer Boes contacted METRICH and was advised to

wait for a warrant before he proceeded to continue his search of the house. Tr. 108-

109. Officer Brandon Bell (“Officer Bell”), who works with the Fostoria Police

Department, obtained a search warrant and went to the house where Parks lived. Tr.

115-116. During the ensuing search, the police discovered $693.00 in cash under

Parks’s mattress, a digital scale, a firearm, and multiple cell phones. Tr. 108-109,

118.

       {¶4} At trial, Officer Bell testified that Parks told him that the pills belonged

to his girlfriend. Tr. 120. However, after Officer Bell informed him that his

girlfriend could go to jail for possession of these pills, Parks stated that the pills

were his. Tr. 120-121. Officer Bell then did a search on the Ohio Automated Rx

Reporting System (“OARRS”) to determine whether Parks had any prescriptions

that could possibly cover these pills. Tr. 121. The OARRS search did not produce

any record of a prescription for Parks. Tr. 121.

       {¶5} Officer Bell sent the pills that had been found in Parks’s bedroom to the

Bureau of Criminal Investigations (“BCI”). On September 10, 2018, BCI reported

to Officer Bell that it had tested the pills. Tr. 127. The first baggie contained forty-

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Case Nos. 13-19-18 and 13-19-19


three tablets of thirty-milligram strength oxycodone. Tr. 169. The other baggie

contained eighteen tablets of twenty-milligram strength oxycodone. Tr. 169.

      {¶6} On September 26, 2018, Parks was indicted on one count of having

weapons while under disability in violation of R.C. 2923.13(A)(2); two counts of

aggravated trafficking in drugs in violation of R.C. 2925.03(A)(2); and one count

of possession of criminal tools in violation of R.C. 2923.24(A). Docket 1: 2. These

charges formed the basis of Case #18-CR-0189. Docket 1:2. On May 14, 2019, the

jury found Parks guilty of one count of having weapons while under disability and

guilty of two counts of aggravated trafficking in drugs. Docket 1: 41. The jury

acquitted Parks of the charge of possession of criminal tools. Docket 1: 41.

      {¶7} At this time, Parks was also a defendant in Case #19-CR-0001, which

was also pending before the trial court. Docket 2: 1. The trial court held Parks’s

sentencing hearing for Case #18-CR-0189 and Case #19-CR-0001 on May 16, 2019.

Docket 1: 45. Docket 2: 30. The trial court ordered Parks to pay the costs of

prosecution in both of these cases, including the costs of his court-appointed

counsel. Docket 1: 45. Docket 2: 30. The appellant filed his notices of appeal on

June 12, 2019. Docket 1: 48. Docket 2: 34. On appeal, Parks raises the following

assignments of error:

                           First Assignment of Error

      The sentence should be reversed because counts two and three are
      allied offenses of similar import.


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Case Nos. 13-19-18 and 13-19-19


                          Second Assignment of Error

      There was insufficient evidence presented at trial to support
      appellant’s convictions for aggravated trafficking of drugs.

                           Third Assignment of Error

      Appellant’s convictions for aggravated trafficking of drugs are
      against the manifest weight of the evidence.

                          Fourth Assignment of Error

      The trial court erred by sentencing appellant to pay court
      appointed counsel fees without determining whether appellant
      had a present or future ability to pay these costs.

The first three assignments of error raise issues from Case #18-CR-0189. The fourth

assignment of error addresses the imposition of costs in both Case #18-CR-0189

and Case #19-CR-0001.

                            First Assignment of Error

      {¶8} Parks argues that his two convictions for aggravated trafficking in drugs

are allied offenses of similar import that should have merged at sentencing.

                                  Legal Standard

      {¶9} “Both R.C. 2941.25 and the Double Jeopardy Clause prohibit multiple

convictions for the same conduct.” State v. Sergent, 148 Ohio St.3d 94, 2016-Ohio-

2696, 69 N.E.3d 627, ¶ 28, quoting State v. Underwood, 124 Ohio St.3d 365, 2010-

Ohio-1, 922 N.E.2d 923, ¶ 27. R.C. 2941.25 reads:

      (A) Where the same conduct by defendant can be construed to
      constitute two or more allied offenses of similar import, the


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Case Nos. 13-19-18 and 13-19-19


       indictment or information may contain counts for all such
       offenses, but the defendant may be convicted of only one.

       (B) Where the defendant’s conduct constitutes two or more
       offenses of dissimilar import, or where his conduct results in two
       or more offenses of the same or similar kind committed separately
       or with a separate animus as to each, the indictment or
       information may contain counts for all such offenses, and the
       defendant may be convicted of all of them.

R.C. 2941.25. Under Ohio law, if a defendant is charged with allied offenses the

“trial court is required to merge [these offenses] at sentencing.” Sergent at ¶ 28,

quoting Underwood at ¶ 27.

       {¶10} To determine “whether two offenses are * * * subject to merger under

R.C. 2941.25, the conduct of the accused must be considered.” State v. Ruff, 143

Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 16, quoting State v. Johnson, 128

Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, syllabus.             Under R.C.

2941.15(B), multiple convictions are permitted for offenses of a similar kind

       if we answer affirmatively to just one of the following three
       questions: (1) Were the offenses dissimilar in import or
       significance? (2) Were they committed separate? And (3) Were
       they committed with a separate animus or motivation?

State v. Potts, 2016-Ohio-5555, 69 N.E.3d 1227, ¶ 96 (3d Dist.), quoting State v.

Bailey, 1st Dist. Hamilton No. C-104129, 2015-Ohio-2997, ¶ 76, citing Ruff at

paragraph three of the syllabus.

       {¶11} If the offenses are committed with the same conduct but with a

separate animus, multiple convictions can be sustained. State v. Hadding, 3d Dist.


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Case Nos. 13-19-18 and 13-19-19


Auglaize No. 2-12-14, 2013-Ohio-643, ¶ 14. “The Supreme Court of Ohio has

defined animus as ‘purpose, or more properly, immediate motive.’” Id. quoting

State v. Logan, 60 Ohio St.2d 126, 131, 397 N.E.2d 1345 (1979). Further, “two or

more offenses of dissimilar import exist within the meaning of R.C. 2941.25(B)

when the defendant’s conduct constitutes offenses involving separate victims or if

the harm that results from each offense is separate and identifiable.” Ruff at ¶ 26.

       {¶12} When addressing the issue of allied offenses, “the question is not

whether a particular sentence is justified, but whether the defendant may be

sentenced upon all the offenses.” Sergent at ¶ 28, quoting Underwood at ¶ 27.

“Whether offenses are allied offenses of similar import is a question of law that this

court reviews de novo.” Potts at ¶ 93, citing State v. Stall, 3d Dist. Crawford No. 3-

10-12, 2011-Ohio-5733, ¶ 15.

                                   Legal Analysis

       {¶13} In this case, the State charged Parks with two separate counts of

aggravated trafficking in drugs because he was selling twenty-milligram tablets of

oxycodone and thirty-milligram tablets of oxycodone. Docket 1: 2. Parks argues

that these two counts should merge because both classes of tablets are composed of

oxycodone. We begin our analysis by noting that the fact that the thirty-milligram

tablets of oxycodone and the twenty-milligram tablets of oxycodone were composed

of the same substance is not, in and of itself, dispositive of this issue. State v.

Cartlidge, 3d Dist. Seneca No. 13-18-33, 2019-Ohio-1283, ¶ 32.

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Case Nos. 13-19-18 and 13-19-19


       {¶14} At trial, the State introduced text messages that indicated that Parks

offered tablets of oxycodone to a network of potential purchasers. Parks reached

out to his contacts with text messages that read “20s 30s” or “Blues and greens.”

Ex. 22, 24, 26, 28, 30, 31, 34, 36, 38, 42, 43, 45, 50, 52, 55. Officer Bell testified

at trial that, in his training and experience, “30s” referred to thirty-milligram tablets

of oxycodone and that “20s” would refer to twenty-milligram tablets of oxycodone.

Tr. 134, 139.    Similarly, Officer Bell explained that the different dosages of

oxycodone come in tablets that are different colors. Tr. 136. For this reason,

individuals will often refer to a specific strength of oxycodone by the color of the

tablet in which that dosage comes. Tr. 136. Officer Bell explained that Parks was

referring to the two different dosages of oxycodone that he had available when he

informed his contacts that he had “blues” and “greens.” Tr. 136.

       {¶15} Throughout these text messages, Parks was consistently offering the

two different strengths of oxycodone as two distinct purchase options. The text

messages also reveal that he was offering these two different strengths of oxycodone

at two different prices. He was selling thirty-milligram tablets of oxycodone for

thirty-five dollars each and was selling twenty-milligram tablets of oxycodone for

twenty-six dollars each. Ex. 32, 51. Parks also stored the thirty-milligram tablets

and twenty-milligram tablets in separate baggies, maintaining distinct inventories

of each strength of oxycodone. See State v. Sowers, 5th Dist. Perry No. 16 CA



                                          -8-
Case Nos. 13-19-18 and 13-19-19


00002, 2016-Ohio-7500, ¶ 18. This evidence indicates that Parks did not treat the

two different strengths of oxycodone as interchangeable.

      {¶16} Further, while Parks offered his buyers both strengths of oxycodone,

there is no evidence that his buyers purchased both strengths of oxycodone in one

transaction. Across these text messages, Parks’s contacts frequently reached out to

him to request one specific strength of oxycodone. Ex. 18, 20, 27, 29, 39, 40, 44,

45, 49. One contact wrote “Any 30s?” Ex. 18. Another contact requested four

“30s.” Ex. 27. There was even a contact who wanted to trade two “20s” for one of

Parks’s “30s.” Ex. 39. Through these text messages, the purchasers consistently

requested either the twenty-milligram tablets of oxycodone or the thirty-milligram

tablets of oxycodone. Ex. 18, 27, 35, 39, 40, 45, 46, 48, 49, 51, 54, 55. None of

Parks’s contacts, in any of the text messages introduced at trial, requested a

combination of “20s” and “30s” together. The text messages do not contain any

indication that Parks combined “20s” and “30s” in one transaction to provide a

purchaser with a desired aggregate amount of oxycodone in exchange for one lump

sum price. These text messages, which were sent in between August 3, 2018 and

August 12, 2018, reveal that Parks distributed these twenty-milligram tablets of

oxycodone and thirty-milligram tablets of oxycodone in a consistent pattern.

      {¶17} The text messages that Parks sent in the immediate lead up to Officer

Boes’s discovery of the oxycodone tablets in Parks’s possession continue this

pattern. In between 6:17 P.M. and 7:56 P.M. on the evening of August 9, 2018,

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Case Nos. 13-19-18 and 13-19-19


Parks texted thirteen different individuals with the messages “20s 30s” or “Blues

and 20s.” Ex. 22, 24, 26, 28, 30, 31, 34, 36, 38, 45, 50, 52, 55. Parks received six

requests for oxycodone. Ex. 18, 32, 45, 49, 51, 55. Three of these contacts

requested thirty-milligram tablets of oxycodone, and the other three contacts

requested twenty-milligram tablets of oxycodone.1 Ex. 18, 32, 45, 49, 51, 55. None

of these contacts requested both thirty-milligram tablets and twenty-milligram

tablets of oxycodone. Parks texted these offers in close proximity to the discovery

of these tablets in his possession because Officer Bell executed a search warrant at

1:44 P.M. on August 10, 2019 after Officer Boes had already discovered marijuana

in Parks’s house. Ex. 10.

           {¶18} These text messages indicate that Parks not only stored the two

different strengths of oxycodone in separate baggies, but he, in practice, also

separately offered, sold, and distributed these different strengths of oxycodone.

These different strengths were going from different baggies to different individuals

at different prices in different transactions. These text messages demonstrate that

Parks held these two classes of tablets in preparation for their distribution in two

different sets of transactions. State v. Jeffries, 2018-Ohio-2160, 112 N.E.3d 417, ¶

68 (1st Dist.). Thus, we conclude that Parks held each strength of these tablets of

oxycodone with a separate animus.



1
    Two of these requests came after the oxycodone was discovered in Parks’s bedroom. Ex. 18, 49.

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Case Nos. 13-19-18 and 13-19-19


       {¶19} Parks argues that this Court should follow State v. Painter, 12th Dist.

Clermont No. CA2014-03-022, 2014-Ohio-5011. In Painter, the defendant sold

two different strengths of oxycodone to one buyer in one transaction for the lump

sum price of $400.00. Painter at ¶ 3. The State charged him with two counts of

aggravated trafficking in drugs because he sold two different strengths of

oxycodone. Id. On appeal, the Twelfth District held that these two counts were

allied offenses of similar import “[b]ecause Painter sold these tablets in a single

transaction, regardless of their milligram strength, with the same animus and

conduct * * *.” Id. at ¶ 22. However, we find Painter to be distinguishable.

       {¶20} Where the defendant in Painter engaged in one transaction with one

buyer, Parks communicated with at least twenty contacts who were seeking

oxycodone and arranged at least nine meetings with these different contacts. Ex.

18, 19, 21, 23, 25, 27, 29, 31, 33, 35, 37, 39, 40, 41, 48, 51, 52, 53, 54, 55. See

Painter, supra, at ¶ 3. The text messages demonstrate that Parks sold oxycodone to

his contacts independently of each other, not in one single transaction. Ex. 20, 25,

35, 37, 39, 44, 47, 49, 51. Even setting aside the fact that Parks was engaged in

multiple transactions with multiple buyers, these transactions, when considered

individually, still do not resemble the transaction in Painter. The purchaser, in

Painter, bought both kinds of oxycodone in one transaction. Painter, supra, at ¶ 3.

In the case before this Court, the text messages document a number of transactions

in which Parks sold either twenty-milligram tablets of oxycodone or thirty-

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Case Nos. 13-19-18 and 13-19-19


milligram tablets of oxycodone, but these text messages do not document a single

situation in which Parks sold both strengths of oxycodone in one transaction.

       {¶21} In Painter, the defendant sold two different strengths to one buyer in

one transaction for one lump sum price with the same conduct and the same animus.

Painter, supra, at ¶ 3, 32. In the case before this Court, the text messages indicate

that Parks maintained separate inventories of each of these strengths of oxycodone

for the purpose of offering two different purchase options with different prices to

different buyers in his network. See Cartlidge, supra, at ¶ 32. Under the facts of

this particular case, we cannot conclude that the trial court erred in determining that

a separate animus motivated Parks to maintain these separate inventories of

oxycodone. Thus, Parks’s two convictions for aggravated trafficking in drugs are

not allied offenses of similar import. Parks’s first assignment of error is overruled.

                            Second Assignment of Error

       {¶22} Parks argues that his convictions for aggravated trafficking in drugs

are not supported by sufficient evidence.

                                       Legal Standard

       {¶23} A challenge to the sufficiency of the evidence supporting a conviction

“is a question of law and a ‘test of adequacy rather than credibility or weight of the

evidence.’” State v. Beaver, 3d Dist. Marion No. 9-17-37, 2018-Ohio-2438, ¶ 40,

quoting State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19. “The

sufficiency-of-the-evidence analysis addresses the question of whether adequate

                                         -12-
Case Nos. 13-19-18 and 13-19-19


evidence was produced for the case to be considered by the trier of fact and, thus,

whether the evidence was ‘legally sufficient to support the verdict * * *.’” State v.

Luebrecht, 3d Dist. Putnam No. 12-18-02, 2019-Ohio-1573, ¶ 36, quoting State v.

Worthington, 3d Dist. Hardin No. 6-15-04, 2016-Ohio-530, ¶ 12. On appeal, the

applicable standard

       is whether, after viewing the evidence in the light most favorable
       to the prosecution, any rational trier of fact could have found that
       the essential elements of the crime were proven beyond a
       reasonable doubt.

State v. Brown, 3d Dist. Hancock No. 5-17-19, 2018-Ohio-899, ¶ 8, quoting State

v. Plott, 2017-Ohio-38, 80 N.E.3d 1108, ¶ 73 (3d Dist.).

       {¶24} In order to establish a conviction for trafficking in drugs in violation

of R.C. 2925.03(A)(2), the State had to prove that the defendant “[1] knowingly * *

* [2] “[p]repare[d] for shipment, ship[ped], transport[ed], deliver[ed], prepare[d] for

distribution, or distribute[d] [3] a controlled substance * * * [4] 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.” R.C. 2925.03(A)(2).

                                   Legal Analysis

       {¶25} In this case, Officer Chaz Boes testified that he discovered baggies

that contained a number of tablets in the pocket of a jacket in the appellant’s

bedroom. Tr. 108. These pills were divided into two baggies. Tr. 123. Sara Tipton

(“Tipton”), who is a forensic scientist at BCI, testified that she determined that both


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Case Nos. 13-19-18 and 13-19-19


baggies contained tablets of oxycodone. Tr. 163. Her tests revealed that one baggie

held forty-three tablets of thirty-milligram strength oxycodone. Tr. 169. The other

baggie contained eighteen tablets of twenty-milligram strength oxycodone. Tr. 169.

Tipton also testified that oxycodone is a Schedule II controlled substance. Tr. 165.

       {¶26} Officer Bell testified that he performed an OARRS search that

revealed Parks did not have any prescriptions recorded for oxycodone. Tr. 121. The

police also did not find a bottle for the oxycodone tablets. Tr. 124. The testimony

at trial also indicates that the police found marijuana and paraphernalia associated

with drug use in Parks’s place of residence. Tr. 119. The police also found a digital

scale and $693.00 in cash under Parks’s mattress. Ex. 10. See Tr. 118. Officer Bell

stated that people involved in trafficking drugs often use digital scales “to divi up

the drugs before selling them on the streets.” Tr. 120. He also testified that Parks

initially stated that the tablets belonged to his girlfriend but eventually admitted to

owning the tablets after he was informed that she could face criminal sanctions. Tr.

120-121.

       {¶27} Further, the police discovered multiple phones in Parks’s bedroom.

Tr. 151. Officer Bell affirmed that, in his experience, this “was indicative of drug

trafficking.” Tr. 151. When the police examined Parks’s phone, they discovered

text messages that indicated Parks was contacting potential buyers. Ex. 17-55.

Several of his contacts were asking for “20s,” “30s,” “15s,” “greens,” and “blues.”

Ex. 18, 22, 25, 27. At trial, Officer Bell testified that “30s” referred to thirty-

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Case Nos. 13-19-18 and 13-19-19


milligrams of oxycodone. Tr. 134. Thus, “15s” would refer to fifteen-milligram

tablets of oxycodone, and “20s” would refer to twenty-milligram tablets of

oxycodone. Tr. 135. He also testified that “blues” and “greens” refer to the colors

that the tablets for different dosages of oxycodone come in. Tr. 136.

       {¶28} In these text messages, Parks communicated with at least twenty

individuals. Ex. 18, 19, 21, 23, 25, 27, 29, 31, 33, 35, 37, 39, 40, 41, 48, 51, 52, 53,

54, 55. In some of these texts, several of Parks’s contacts reached out to him, asking

for specific strengths of oxycodone or inquiring about dosages he had available. Ex.

20, 21, 23, 27, 29, 33, 34, 35, 39, 40, 41, 45, 53. In response to these requests from

others, Parks repeatedly stated he had “15s,” “20s,” “30s,” and “blues.” Ex. 18, 19,

21, 24, 25, 27, 29, 34, 35, 36, 46. Other times, Parks initiated contact, informing

the other person that he had “20s” and “30s” available. Ex. 22, 24, 26, 28, 31, 37,

42, 43, 52, 55. On the day before Parks was found to be in possession of twenty-

milligram tablets of oxycodone and thirty-milligram tablets of oxycodone, he

contacted thirteen individuals to inform them that he had “20s” and “30s” available.

Ex. 22, 24, 26, 28, 30, 31, 34, 36, 38, 45, 50, 52, 55.

       {¶29} Parks was also asked for the prices of different dosages of oxycodone.

Ex. 20, 29, 30. In response, Parks texted, “15s for 20.” Ex. 30. Officer Bell testified

that a common price for oxycodone was one dollar per milligram. Tr. 136. Thus,

this text indicated that Parks was selling fifteen-milligram tablets for twenty dollars.

In other texts, Parks indicated that the was selling thirty-milligram tablets for thirty-

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Case Nos. 13-19-18 and 13-19-19


five dollars.   Tr. 136.   One contact asked for the price of twenty-milligram

oxycodone tablets. Ex. 51. Parks replied “26.” Ex. 51. His contact then reported

to Parks that she “needed one” and had cash. Ex. 51. In a text, Parks was asked if

a specific dosage of oxycodone was still available. Ex. 46. Parks responded that he

“don’t sell [that] anymore.” (Emphasis added.) Ex. 46.

       {¶30} Parks also appears to have arranged meetings with these contacts

through these texts. On multiple occasions, Parks either designated a meeting place

or disclosed his current location to his contact. Ex. 19, 20, 25, 27, 35, 44, 47, 48,

49, 51. Several of his contacts also referred Parks to other individuals who might

be interested in “20s” or “30s.” Ex. 22. In one text, Parks told one of his contacts

“jus[t] move these blues for 40 give me 35 I make 5 u make 5.” Ex. 32.

       {¶31} After examining the evidence in a light most favorable to the

prosecution, we conclude that the State produced evidence to establish each of the

essential elements for the crime of trafficking in drugs. Based on the evidence

presented at trial, a rational trier of fact could have found that Parks was guilty of

the crimes as charged. Thus, these convictions are supported by sufficient evidence.

For these reasons, Parks’s second assignment of error is overruled.

                             Third Assignment of Error

       {¶32} Parks asserts that his convictions for aggravated trafficking in drugs

are against the manifest weight of the evidence.



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Case Nos. 13-19-18 and 13-19-19


                                   Legal Standard

       {¶33} “In a manifest weight analysis, ‘an appellate court’s function * * * is

to determine whether the greater amount of credible evidence supports the verdict.’”

State v. Dayton, 3d Dist. Seneca No. 13-18-41, 2019-Ohio-2635, ¶ 13, quoting Plott,

supra, at ¶ 73. Thus, “the appellate court sits as a ‘thirteenth juror’ * * *.” State v.

Davis, 3d Dist. Seneca No. 13-16-30, 2017-Ohio-2916, ¶ 17, quoting State v.

Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). Appellate courts

       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. Brentlinger, 2017-Ohio-2588, 90 N.E.3d 200, ¶ 36 (3d Dist.), quoting

Thompkins at 387.

       {¶34} “A reviewing court must, however, allow the trier of fact appropriate

discretion on matters relating to the weight of the evidence and the credibility of the

witnesses.” State v. Sullivan, 2017-Ohio-8937, 102 N.E.3d 86, ¶ 38 (3d Dist.),

quoting State v. Coleman, 3d Dist. Allen No. 1-13-53, 2014-Ohio-5320, ¶ 7. “[I]t is

well established that the * * * credibility of the witnesses [is] primarily a matter for

the trier of fact.” State v. Gervin, 2016-Ohio-8399, 79 N.E.3d 59, ¶ 142 (3d Dist.),

quoting State v. Clark, 101 Ohio App.3d 389, 409, 655 N.E.2d 795 (8th Dist.1995).

“Only in exceptional cases, where the evidence ‘weighs heavily against the


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Case Nos. 13-19-18 and 13-19-19


conviction,’ should an appellate court overturn the trial court’s judgment.” State v.

Little, 2016-Ohio-8398, 78 N.E.3d 323, ¶ 27 (3d Dist.), quoting State v. Hunter, 131

Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 119.

                                  Legal Analysis

       {¶35} We herein reincorporate the evidence examined during our analysis of

Parks’s second assignment of error and proceed to examine the evidence presented

at trial under the manifest weight of the evidence standard. During Officer Boes’s

cross-examination, defense counsel elicited the names of a number of other people

who lived with Parks and asked Officer Boes if he questioned any of these

individuals about the tablets that were found in Parks’s bedroom. Tr. 110-111.

Officer Boes stated that he did not remember speaking with these other individuals.

Tr. 111. The Defense also asked Officer Boes if Parks admitted to him that the

tablets belonged to him. Tr. 111. Officer Boes stated that he could not say with

certainty that Parks admitted to owning the tablets. Tr. 111.

       {¶36} On cross-examination, Officer Bell admitted that he did not question

any of the contacts with whom Parks was communicating via text. Tr. 145. He also

admitted that, beyond the text messages, he did not seek further confirmation that

drug sales actually occurred. Tr. 145. Further, Tipton testified that she, during her

examination of these pills, counted a total of sixty-one tablets of oxycodone. Tr.

169.   However, on cross-examination, defense counsel stated that the police



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Case Nos. 13-19-18 and 13-19-19


reported listed that there were sixty-three tablets seized from Parks. Tr. 171. Tipton

stated that she could not account for this difference. Tr. 171.

       {¶37} After reviewing the evidence in the record, we conclude that the facts

of this case do not present the exceptional situation in which the evidence weighs

heavily against the defendant’s conviction. Further, we do not find any indication

in the record that the jury lost its way and returned a verdict that is against the

manifest weight of the evidence. For this reason, Parks’s third assignment of error

is overruled.

                             Fourth Assignment of Error

       {¶38} Parks argues that the trial court erred by ordering him to pay for his

court appointed counsel without first determining whether he had a present or future

ability to pay for the imposed costs.

                                   Legal Standard

       {¶39} R.C. 2941.51 governs the imposition of the costs of court appointed

counsel and reads, in its relevant part, as follows:

       (D) The fees and expenses approved by the court under this
       section shall not be taxed as part of the costs and shall be paid by
       the county. However, if the person represented has, or reasonably
       may be expected to have, the means to meet some part of the cost
       of the services rendered to the person, the person shall pay the
       county an amount that the person reasonably can be expected to
       pay.

R.C. 2941.51(D).



                                         -19-
Case Nos. 13-19-18 and 13-19-19


       [A]n indigent defendant may properly be required to pay his
       attorney fees only after the court makes an affirmative
       determination on the record in the form of a journal entry that
       the defendant has, or reasonably may be expected to have, the
       means to pay all or some part of the cost of the legal services
       rendered to him. The court must then enter a separate civil
       judgment for the attorney fees or any part thereof that the court
       finds the defendant has the ability to repay.



State v. Schaeffer, 3d Dist. Seneca No. 13-19-10, 2019-Ohio-2481, ¶ 8, quoting

State v. Shaffer, 3d Dist. Union No. 14-09-06, 2009-Ohio-4804, ¶ 5.

                                   Legal Analysis

       {¶40} In this case, the record does not contain any indication that the trial

court made an affirmative determination that Parks had the ability to pay for the

costs of his court appointed counsel. Tr. 22. For this reason, “we vacate [the]

portion[s] of the trial court’s judgment[s] imposing the court-appointed attorneys

fees and remand this matter for the trial court to either conduct a hearing as to

[Parks’s] ability to pay the attorney’s fees pursuant to R.C. 2941.51(D) or in the

alternative, to file * * * amended judgment entr[ies] that omit[] the imposition of

those attorney’s fees.” State v. Junod, 3d Dist. Mercer No. 10-18-08, 2019-Ohio-

743, ¶ 68. Parks’s fourth assignment of error is sustained.

                                     Conclusion

       {¶41} Having found no error prejudicial to the appellant in the particulars

assigned and argued in the first, second, and third assignments of error, the judgment


                                        -20-
Case Nos. 13-19-18 and 13-19-19


of Seneca County Court of Common Pleas is affirmed as to these issues in Case

#18-CR-0189. Having found error prejudicial to the appellant in the particulars

assigned and argued in the fourth assignment of error, the judgments of the Seneca

County Court of Common Pleas are reversed as to these issues in Case #18-CR-

0189 and Case #19-CR-0001.

                                                     Judgments Affirmed in Part
                                                               Reversed in Part
                                                         And Cause Remanded

ZIMMERMAN, P.J. and PRESTON, J., concur.

/hls




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