[Cite as State v. Houser, 2014-Ohio-3753.]


                                        COURT OF APPEALS
                                      HOLMES COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                :       JUDGES:
                                             :       Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                   :       Hon. Sheila G. Farmer, J.
                                             :       Hon. John W. Wise, J.
-vs-                                         :
                                             :
JOHN R. HOUSER                               :       Case No. 14-CA-002
                                             :
        Defendant-Appellant                  :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 13-CR-085




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    August 28, 2014




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

F. CHRISTOPHER OEHL                                  DAVID M. HUNTER
164 East Jackson Street                              244 West Main Street
Millersburg, OH 44654                                Loudonville, OH 44842
Holmes County, Case No. 14-CA-002                                                     2

Farmer, J.

      {¶1}   On August 19, 2013, the Holmes County Grand Jury indicted appellant,

John Houser, on one count of trafficking in marijuana in violation of R.C. 2925.03(A)(1)

and (C)(3)(a) and (b) and one count of aggravated trafficking (Ecstasy) in violation of

R.C. 2925.03(A)(1) and (C)(1)(a) and (b) committed on January 7, 2013, and one count

of aggravated trafficking (Ecstasy) in violation of R.C. 2925.03(A)(1) and (C)(1)(c)

committed on February 26, 2013. Said charges arose from two controlled drug buys by

a confidential informant, Mark Mullins, in the vicinity of a school.       During both

transactions, appellant was driving a red Tahoe.

      {¶2}   A jury trial commenced on January 6, 2014. The jury found appellant

guilty as charged. By judgment entry filed January 23, 2014, the trial court sentenced

appellant to an aggregate term of five years in prison.

      {¶3}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                             I

      {¶4}   "THE     CONVICTION       FOR        TRAFFICKING   IN   MARIJUANA     AND

AGGRAVATED TRAFFICKING, BEING COUNTS ONE AND TWO OF THE

INDICTMENT AND WHICH ALLEGEDLY OCCURRED ON JANUARY 7, 2013, WERE

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."

                                             II

      {¶5}   "THE CONVICTION FOR AGGRAVATED TRAFFICKING, BEING COUNT

TWO OF THE INDICTMENT AND WHICH ALLEGEDLY OCCURRED ON FEBRUARY

26, 2013, WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."
Holmes County, Case No. 14-CA-002                                                      3


                                            III

       {¶6}   "THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO

DISMISS UNDER CRIM.R. 29(A) AT THE CLOSE OF THE STATE'S CASE."

                                            IV

       {¶7}   "THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF

COUNSEL."

                                         I, II, III

       {¶8}   Appellant claims his convictions for trafficking in marijuana and

aggravated trafficking on January 7, 2013 and aggravated trafficking on February 26,

2013 were against the manifest weight of the evidence. Appellant also claims the trial

court erred in denying his Crim.R. 29 motion for acquittal. We disagree.

       {¶9}   On review for manifest weight, a reviewing court is to examine 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 jury 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. Martin, 20 Ohio App.3d 172, 175 (1st

Dist.1983). See also, State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. The

granting of a new trial "should be exercised only in the exceptional case in which the

evidence weighs heavily against the conviction." Martin at 175.

       {¶10} Crim.R. 29 governs motion for acquittal.       Subsection (A) states the

following:
Holmes County, Case No. 14-CA-002                                                        4


             The court on motion of a defendant or on its own motion, after the

      evidence on either side is closed, shall order the entry of a judgment of

      acquittal of one or more offenses charged in the indictment, information, or

      complaint, if the evidence is insufficient to sustain a conviction of such

      offense or offenses. The court may not reserve ruling on a motion for

      judgment of acquittal made at the close of the state's case.



      {¶11} The standard to be employed by a trial court in determining a Crim.R. 29

motion is set out in State v. Bridgeman, 55 Ohio St.2d 261 (1978), syllabus: "Pursuant

to Crim.R. 29(A), a court shall not order an entry of judgment of acquittal if the evidence

is such that reasonable minds can reach different conclusions as to whether each

material element of a crime has been proved beyond a reasonable doubt."

                        CONVICTIONS FOR JANUARY 7, 2013

      {¶12} Appellant was convicted of aggravated trafficking in violation of R.C.

2925.03(A)(1) and (C)(1)(b) and trafficking in marijuana in violation of R.C.

2925.03(A)(1) and (C)(3)(b) which state the following, respectively:



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

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

      substance analog;

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

      the following:
Holmes County, Case No. 14-CA-002                                                       5


            (1) If the drug involved in the violation is any compound, mixture,

     preparation, or substance included in schedule I or schedule II, with the

     exception of marihuana, cocaine, L.S.D., heroin, hashish, and controlled

     substance analogs, whoever violates division (A) of this section is guilty of

     aggravated trafficking in drugs.     The penalty for the offense shall be

     determined as follows:

            (b) Except as otherwise provided in division (C)(1)(c), (d), (e), or (f)

     of this section, if the offense was committed in the vicinity of a school or in

     the vicinity of a juvenile, aggravated trafficking in drugs is a felony of the

     third degree, and division (C) of section 2929.13 of the Revised Code

     applies in determining whether to impose a prison term on the offender.

            (3) If the drug involved in the violation is marihuana or a compound,

     mixture, preparation, or substance containing marihuana other than

     hashish, whoever violates division (A) of this section is guilty of trafficking

     in marihuana. The penalty for the offense shall be determined as follows:

            (b) Except as otherwise provided in division (C)(3)(c), (d), (e), (f),

     (g), or (h) of this section, if the offense was committed in the vicinity of a

     school or in the vicinity of a juvenile, trafficking in marihuana is a felony of

     the fourth degree, and division (B) of section 2929.13 of the Revised Code

     applies in determining whether to impose a prison term on the offender.



     {¶13} Pursuant to R.C. 2925.01(P):
Holmes County, Case No. 14-CA-002                                                     6


             An offense is "committed in the vicinity of a school" if the offender

      commits the offense on school premises, in a school building, or within

      one thousand feet of the boundaries of any school premises, regardless of

      whether the offender knows the offense is being committed on school

      premises, in a school building, or within one thousand feet of the

      boundaries of any school premises.



      {¶14} Appellant argues the evidence failed to establish he offered to sell and/or

sold marijuana and Ecstasy pills within one thousand feet of a school as the distance to

a school when the drug buy occurred was contradictory. Also, appellant argues the

offer to sell was done via texting on a cell phone and evidence was not presented that

appellant was the one texting.

      {¶15} The confidential informant, Mark Mullins, testified he and appellant texted

to set up the sale. T. at 140-141, 143. The cell phone number used was identified as

appellant's via testimony from Roger Estill, Chief Probation Officer, and Ginnie

Sandison, Deputy Clerk with the Clerk of Court's Office, and via court documents. T. at

215-217, 219-221; State's Exhibits 14 and 15. In addition, appellant's own witnesses

identified the cell phone number as being used by appellant as well as other family

members. T. at 246, 302-303, 322-323, 328-329. Photographs of the text messages

on January 7, 2013 were admitted as State's Exhibit 3. T. at 96, 226.

      {¶16} On January 7, 2013, the day of the sale, Millersburg Police Chief Thomas

Vaughn, assisting in the surveillance, observed appellant driving a red Tahoe that

entered Millersburg at the appointed time. T. at 48-49, 59. Chief Vaughn was familiar
Holmes County, Case No. 14-CA-002                                                        7


with appellant from past encounters. T. at 53-54. Mr. Mullins testified he entered the

vehicle and appellant was driving and Jeffrey Perrine was seated in the passenger's

seat. T. at 143-144, 168-169. Appellant continued driving and Mr. Mullins grabbed a

brown paper bag containing the marijuana and Ecstasy pills from the center console

and he placed his money on the center console. T. at 145-146. The entire transaction

was audio recorded and played for the jury. T. at 93; State's Exhibit 1. Both Holmes

County Sheriff's Deputy Sergeant Joe Mullet and Mr. Mullins identified appellant's voice

on the tape. T. at 93-94, 156-157.

      {¶17} Sergeant Mullet testified Mr. Mullins was picked up at the intersection of

Clinton Street and Monroe Street which was five hundred and fifty-two feet from a Head

Start Preschool. T. at 105. During the drive wherein the drug buy took place, appellant

drove north and then turned around, getting closer to the preschool. Id. A videotape of

the red Tahoe's movements taken by Holmes County Sheriff's Deputy Detective Robert

McVicker and a GIS map of the area showing an aerial view were admitted as State's

Exhibits 11 and 16, respectively. T. at 128-129, 184-185, 187-188, 226. While it is true

that Mr. Mullins was unable to identify the location of the school during the drive around,

testimony from the surveillance officers and the videotape established the vehicle's

route was within one thousand feet of a school.

      {¶18} Upon review, we find the evidence was sufficient to establish the sale of

the marijuana and Ecstasy was set up with appellant, and appellant was the driver of

the red Tahoe.    The videotape and aerial map, coupled with the testimony of the

surveillance officers of the vehicle's route, were sufficient to establish the elements of

the offenses beyond a reasonable doubt. We find no manifest miscarriage of justice.
Holmes County, Case No. 14-CA-002                                                     8


                       CONVICTION FOR FEBRUARY 26, 2013

      {¶19} The elements of this count are cited above, R.C. 2925.03(A)(1). Appellant

was also convicted of subsection (C)(1)(c) which states:



             (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, with the

      exception of marihuana, cocaine, L.S.D., heroin, hashish, and controlled

      substance analogs, whoever violates division (A) of this section is guilty of

      aggravated trafficking in drugs.    The penalty for the offense shall be

      determined as follows:

             (c) Except as otherwise provided in this division, if the amount of

      the drug involved equals or exceeds the bulk amount but is less than five

      times the bulk amount, aggravated trafficking in drugs is a felony of the

      third degree, and, except as otherwise provided in this division, there is a

      presumption for a prison term for the offense. If aggravated trafficking in

      drugs is a felony of the third degree under this division and if the offender

      two or more times previously has been convicted of or pleaded guilty to a

      felony drug abuse offense, the court shall impose as a mandatory prison

      term one of the prison terms prescribed for a felony of the third degree. If

      the amount of the drug involved is within that range and if the offense was

      committed in the vicinity of a school or in the vicinity of a juvenile,
Holmes County, Case No. 14-CA-002                                                      9


       aggravated trafficking in drugs is a felony of the second degree, and the

       court shall impose as a mandatory prison term one of the prison terms

       prescribed for a felony of the second degree.



       {¶20} Appellant argues there was no proof that he set up the sale, the drug buy

occurred within one thousand feet of a school, and the amount sold was two times the

bulk amount.

       {¶21} As in the January 7, 2013 drug buy, Mr. Mullins and appellant set up the

sale via texts to appellant's known cell phone number. T. at 148; State's Exhibit 4. Both

Chief Vaughn and Sergeant Mullet observed appellant driving the red Tahoe. T. at 52,

86-87. Appellant picked up Mr. Mullins in the same area as before. T. at 150-151. This

time appellant was alone. T. at 152. They drove around town for a minute, the sale

occurred, and appellant drove "around by the park, up by the school." T. at 151-152.

Appellant then dropped him off on "an alley street across from the school." T. at 154.

This transaction was also audio recorded and appellant's voice was identified in the

recording. T. at 157; State's Exhibit 2.

       {¶22} The drug buy consisted of twenty-one pills. T. at 104-105; State's Exhibit

8. The pills were tested by B.C.I. and were determined to be Ecstasy. Id.; State's

Exhibit 10. Sergeant Mullet testified bulk amount was ten unit doses or more, so there

was twice the bulk amount. T. at 105.

       {¶23} Upon review, we find there was sufficient evidence to substantiate the

elements of the offense beyond a reasonable doubt. We find no manifest miscarriage

of justice.
Holmes County, Case No. 14-CA-002                                                     10


       {¶24} All of the testimony reviewed above was given prior to the Crim.R. 29

motion for acquittal. We find the trial court did not err in denying said motion.

       {¶25} Assignments of Error I, II, and III are denied.

                                              IV

       {¶26} Appellant claims his trial counsel was ineffective for failing to object to

testimony referencing his prior criminal activity and by failing to file a proper alibi

defense. We disagree.

       {¶27} The standard this issue must be measured against is set out in State v.

Bradley, 42 Ohio St.3d 136 (1989), paragraphs two and three of the syllabus. Appellant

must establish the following:



              2. Counsel's performance will not be deemed ineffective unless and

       until counsel's performance is proved to have fallen below an objective

       standard of reasonable representation and, in addition, prejudice arises

       from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2

       O.O.3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S.

       668, 104 S.Ct. 2052, 80 L.Ed.2d 674, followed.)

              3. To show that a defendant has been prejudiced by counsel's

       deficient performance, the defendant must prove that there exists a

       reasonable probability that, were it not for counsel's errors, the result of

       the trial would have been different.
Holmes County, Case No. 14-CA-002                                                      11


       {¶28} Evid.R. 104 places the trial court in the position of determining

admissibility of evidence. Evid.R. 401 defines "relevant evidence" as "evidence having

any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without the

evidence." Evid.R. 402 states the following:



              All relevant evidence is admissible, except as otherwise provided

       by the Constitution of the United States, by the Constitution of the State of

       Ohio, by statute enacted by the General Assembly not in conflict with a

       rule of the Supreme Court of Ohio, by these rules, or by other rules

       prescribed by the Supreme Court of Ohio. Evidence which is not relevant

       is not admissible.



       {¶29} Further consideration is required under Evid.R. 403(A) which states:

"Although relevant, evidence is not admissible if its probative value is substantially

outweighed by the danger of unfair prejudice, of confusion of the issues, or of

misleading the jury."

       {¶30} Appellant complains of the testimony discussed above of Roger Estill and

Ginnie Sandison regarding appellant's cell phone number. T. at 215-217, 219-221.

Both testified to the number appellant had placed on court documents (probation

records and a bond). State's Exhibits 14 and 15. The number matched the cell phone

number Mr. Mullins used to text with appellant to set up the drug buys. The testimony

was relevant to prove Mr. Mullins's testimony regarding the number was credible and
Holmes County, Case No. 14-CA-002                                                       12


appellant was the individual setting up the sale. There was a slight reference to the

origin of the court documents.

       {¶31} Appellant also complains of the testimony of Chief Vaughn regarding their

past encounters. Chief Vaughn was testifying to his identification of appellant driving

the red Tahoe.     Chief Vaughn testified he had prior contact with appellant through

Project Stay, a school program, and had been in court with him before. T. at 53. Chief

Vaughn did not elaborate as to the circumstances regarding the court encounter.

Defense counsel objected and the trial court sustained the objection. T. at 54.

       {¶32} We find these references were not unduly prejudicial and do not rise to the

level of ineffective assistance of trial counsel.

       {¶33} Appellant also argues his trial counsel filed an incomplete notice of alibi.

Crim.R. 12.1 governs notice of alibi and states the following:



              Whenever a defendant in a criminal case proposes to offer

       testimony to establish an alibi on his behalf, he shall, not less than seven

       days before trial, file and serve upon the prosecuting attorney a notice in

       writing of his intention to claim alibi.     The notice shall include specific

       information as to the place at which the defendant claims to have been at

       the time of the alleged offense. If the defendant fails to file such written

       notice, the court may exclude evidence offered by the defendant for the

       purpose of proving such alibi, unless the court determines that in the

       interest of justice such evidence should be admitted.
Holmes County, Case No. 14-CA-002                                                          13


       {¶34} The notice of alibi filed December 10, 2013 sets forth five specific

individuals who would testify that appellant was not the driver of the red Tahoe that met

with Mr. Mullins for the drug buys:



              1) Katherine Philips, 616 S. Main St., Apt. B-7, Shreve, Ohio 44676,

       who will testify that she had her daughter rather than the Defendant on

       Sunday, January 6, 2013, the same date as the text allegedly from

       Defendant stating that he had both his daughters.

              2) Laureen Houser, 616 S. Main St., Apt. E-4, Shreve, Ohio 44676,

       who will opine to her belief that the true perpetrator is her other son, Jacob

       Houser.

              3) Samantha Jordan, 76 C.R. 1100, West Salem, Ohio 44287 who

       will testify that she was the owner of the subject vehicle on the dates in

       question and that she allowed Jacob Houser to use said vehicle on or

       about the dates in question.

              4) Jacob Houser, 8171 Twp. Rd. 576, Holmesville, Ohio 44633,

       who may or may not testify to his role in the incidents in question.

              5) Jeffrey Perrine, 71 N. Mad Anthony, Millersburg, Ohio 44654,

       who will testify he was not present in the State of Ohio on one date in

       question.



       {¶35} All of these individuals testified at trial relatively consistent with the stated

subject matter. T. at 243, 253, 254-257, 273, 280-281, 290, 292-293. The trial court
Holmes County, Case No. 14-CA-002                                                          14


ruled after listening to the testimony it was not going to give an alibi instruction "unless I

hear something differently from the last witness." T. at 282-283. The trial court also

determined the alibi notice did not include a specific location as required and therefore

"it can't come in." T. at 286. The last two witnesses were appellant's brother, Jacob

Houser, and appellant's mother, Laureen Houser.

       {¶36} Appellant's present argument is that his mother would have testified that

he was with her instead of in Millersburg during the two drug buys. Appellant's Brief at

15. A proffer of this testimony was not made.

       {¶37} The defense presented considerable testimony about the accessibility and

use of the red Tahoe and the cell phone by all members of the family. T. at 243, 253,

254-256, 273, 290, 292-293, 302, 328-329. Appellant's mother testified extensively to

photographs she had taken of her sons in the red Tahoe, suggesting misidentification.

T. at 303-315; Defendant's Exhibits K-O. Appellant admitted to Samantha Jordan, the

owner of the red Tahoe, that he had used the vehicle on the dates in question. T. at

259-266, 277-279. Considerable issues of credibility of the defense witnesses were

raised during cross-examination, including impeachment with their own prior sworn

testimony.

       {¶38} We note this court must accord deference to defense counsel's strategic

choices made during trial and "requires us to eliminate the distorting effect of hindsight."

State v. Post, 32 Ohio St.3d 380, 388 (1987).

       {¶39} Given the cross-examination and the lack of a specific proffer, we find no

deficiency by trial counsel or any undue prejudice to appellant.

       {¶40} Assignment of Error IV is denied.
Holmes County, Case No. 14-CA-002                                           15


      {¶41} The judgment of the Court of Common Pleas of Holmes County, Ohio is

hereby affirmed.

By Farmer, J.

Hoffman, P.J. and

Wise, J. concur.


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