[Cite as State v. Moore, 190 Ohio App.3d 102, 2010-Ohio-4575.]




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




THE STATE OF OHIO,                                   :


        Appellee,                                    :    Case No. 09CA886


        v.                                           :


MOORE,                                               :           DECISION AND JUDGMENT
                                                                 ENTRY


        Appellant.                                   :


_________________________________________________________________


                                            APPEARANCES:


COUNSEL FOR APPELLANT:                   Michael P. Kelly.


COUNSEL FOR APPELLEE:                    Aaron Haslam, Adams County Prosecuting Attorney, and
                                         Rebecca L. Bennett, Assistant Prosecuting Attorney.
_____________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 9-16-10
ADAMS, 09CA886                                                                                 2




       ABELE, Judge.


       {¶ 1} This is an appeal from an Adams County Common Pleas Court judgment of


conviction and sentence. A jury found Perry Moore, defendant below and appellant herein,


guilty of (1) two counts of trafficking in drugs in violation of R.C. 2925.03(A)(1) and (2)


carrying a concealed weapon in violation of R.C. 2923.12(A).


       {¶ 2} Appellant assigns the following errors for review:1


       First Assignment of Error:


       The trial court erred in allowing the testimony of a state’s witness with an admitted


       recent use of drugs.




       Second Assignment of Error:




       1
           Appellant’s brief does not contain a separate statement of the assignments of error.
See App.R. 16(A)(3). Thus, we have assembled these assignments of error from portions
of his argument.
ADAMS, 09CA886                                                                                   3




       “The trial court erred in finding that the state had proven beyond a reasonable


       doubt that appellant had violated ORC §2925.03.”




       {¶ 3} In September 2008, Rachel Silvia was jailed in Adams County for the “fraudulent


use of a credit card” when Sheriff's Detective Richard Demint approached her and asked for


assistance with an investigation into local drug trafficking. She agreed to assist the authorities.


       {¶ 4} Authorities provided Silvia with money and a tape recorder and directed her to


make Oxycontin purchases from appellant. The first purchase occurred on September 20,


2008. The second purchase occurred three days later. On September 24, 2008, Sheriff's


Investigator Shawn Cooley obtained and executed a search warrant on appellant’s home.


Although appellant was not initially present, when he returned home during the search,


authorities conducted a pat-down search on him and found a 22-caliber handgun.


       {¶ 5} Subsequently, the Adams County Grand Jury returned an indictment charging
ADAMS, 09CA886                                                                                 4


appellant with the aforementioned offenses, as well as drug possession in violation of R.C.


2925.11(A). Appellant pleaded not guilty, and the matter came on for a jury trial over several


days in July 2009.


       {¶ 6} At trial, the state first called Rachel Silvia to testify. Before Silvia began


testifying, however, defense counsel requested that the trial court order her to submit to a drug


test to determine her competency. After the court overruled the motion, the witness recounted


her recollection of the evening and explained what had transpired, as the state played for the


jury the recordings of the controlled buys. Demint and Cooley also corroborated Silvia's version


of events. At trial, Joseph Bramer, a pharmacist employed at the local WalMart, related that


appellant has serious medical problems and regularly filled prescriptions for Oxycontin at the


pharmacy. As a result, the court dismissed the third count of the indictment (possession).


       {¶ 7} After hearing the evidence, the jury returned guilty verdicts on the remaining three


counts. The trial court sentenced appellant to serve four years on the first trafficking count,


one year on the second trafficking count, and one year on the concealed-weapon count, with
ADAMS, 09CA886                                                                                  5


all sentences to be served concurrently with the four-year sentence. This appeal followed.


                                                I


       {¶ 8} Appellant asserts in his first assignment of error that the trial court erred by


allowing Silvia to testify without ordering her to undergo a drug test to determine her competency


as a witness. As support for that contention, he cites Prudential Ins. Co. v. Hashman (1982),


7 Ohio App.3d 55, 58-59, 454 N.E.2d 149, wherein this court held that it is error not to conduct


an appropriate inquiry into whether a witness’s intoxication is so great as to render him


incompetent. As we stated in Hashman, however, the determination of witness competency


rests solely in the province of the trial judge. Id. at 58. Here, when defense counsel moved


to strike Silvia’s testimony, the trial court overruled the motion on the following bases:


               The Court witnessed her throughout all her testimony, both on direct and


       cross, she was attentive to the questions, did not seem incompetent to answer


       of the questions, and was somewhat painfully blunt and honest * * *.
ADAMS, 09CA886                                                                               6


       {¶ 9} Obviously, a trial court judge sits in the best position to evaluate witness


competency. In the case at bar, not only are we disinclined to second-guess the trial court's


judgment on this issue, our reading of Silvia's trial testimony does not suggest incompetence.


We readily acknowledge that Silvia admitted addiction to prescription medication and further


admitted that she planned to go “to detox” on July 15 (the same month as the trial). We,


however, do not find these statements to be dispositive of the issue. Appellant cites no


authority, and we are aware of none, that holds that a drug addict cannot testify in a court


proceeding. If Silvia was incoherent or under the influence of drugs on the day she testified,


we would certainly agree that she should not have been permitted to offer her version of the


events. However, we find nothing in the record on appeal to suggest that this was the case.


       {¶ 10} As we stated in Hashman, the decision to allow a witness to testify, over


objections on competency grounds, should not be reversed absent an abuse of discretion. 7


Ohio App.3d at 58; see also State v. Adkins (Jan. 20, 1982), Scioto App. No. 1307. As we


have noted many times, an abuse of discretion is more than an error of law or judgment; rather,
ADAMS, 09CA886                                                                                   7


it implies that the trial court's attitude was unreasonable, arbitrary, or unconscionable. See,


e.g., Landis v. Grange Mut. Ins. Co. (1998), 82 Ohio St.3d 339, 342, 695 N.E.2d 1140;


Malone v. Courtyard by Marriott L.P. (1996), 74 Ohio St.3d 440, 448, 659 N.E.2d 1242.


When applying the abuse-of-discretion standard, an appellate court may not simply substitute


its judgment for that of the trial court. State ex rel. Duncan v. Chippewa Twp. Trustees (1995),


73 Ohio St.3d 728, 732, 654 N.E.2d 1254; In re Jane Doe 1 (1991), 57 Ohio St.3d 135,


137-138, 566 N.E.2d 1181. Instead, to establish an abuse of discretion, a party must show that


the result is so palpably and grossly violative of fact or logic that it evidences not the exercise


of will but the perversity of will, not the exercise of judgment but the defiance of judgment, and


not the exercise of reason but instead passion or bias. Nakoff v. Fairview Gen. Hosp. (1996),


75 Ohio St.3d 254, 256, 662 N.E.2d 1; Bragg v. Hatfield, Vinton App. No. 02CA567,


2003-Ohio-1441, at ¶ 22.


       {¶ 11} In the case sub judice, after our review of the record, we find nothing to suggest


that Silvia was not competent to testify. In the absence of a clear indication that Silvia was
ADAMS, 09CA886                                                                                   8


not competent, we cannot hold that the trial court abused its discretion by allowing her to testify


or by refusing to strike her testimony once it was concluded.


       {¶ 12} Moreover, another factor buttresses our decision on this point. Even assuming,


arguendo, that Silvia was incompetent to testify and the trial court should have excluded her


testimony, we believe that the court's decision to allow her testimony would be, at most,


harmless error. See Crim.R. 52(A). Silvia's testimony that she purchased Oxycontin from


appellant was cumulative of the recorded controlled buys. Those recordings were played for


the jury, and Demint and Cooley identified Silvia’s voice and appellant’s voice for the jury.


Thus, Silvia’s testimony identifying appellant as the person who sold her Oxycontin, even if


tainted by her own status as an addict, is but one piece of evidence adduced at trial. Therefore,


any error on the part of the trial court as to the issue of competency would have been harmless.


       {¶ 13} Accordingly, we find appellant's first assignment of error to be without merit, and


it is hereby overruled.
ADAMS, 09CA886                                                                                   9


                                                 II


       {¶ 14} In his second assignment of error, appellant asserts that his trafficking conviction


is against the manifest weight of the evidence.2 Specifically, he contends that his “conviction


was based entirely upon the actions and testimony of one person, Rachel Silvia.” “Without her


testimony,” appellant continues, “the State did not have a case against [him.]” He concludes


that her status as an addict makes her unreliable and that her desperation to avoid further jail


time provided her an incentive to help the sheriff’s office in this case, tamper with the evidence,


and even to include some of her own Oxycontin in the drugs she gave to the authorities to bolster


the chance of getting a conviction.


       {¶ 15} First, Silvia’s admitted status as prescription-drug addict goes to the weight and


credibility of her testimony, not its sufficiency or its admissability. We will not reverse a


       2
           To the extent that the text of his assignment of error suggests that appellant is making
a sufficiency-of-the-evidence argument, we note that sufficiency and manifest weight are two
distinct concepts. State v. Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541.
Although appellant’s argument is couched in terms of manifest weight, we would also conclude
that sufficient evidence supports his conviction for trafficking.
ADAMS, 09CA886                                                                                 10


conviction on manifest-weight-of-the-evidence grounds unless it is obvious that the trier of fact


lost its way and created a manifest miscarriage of justice that requires reversal and a new trial.


See State v. Earle (1997), 120 Ohio App.3d 457, 473, 698 N.E.2d 440; State v. Garrow


(1995), 103 Ohio App.3d 368, 370-371, 659 N.E.2d 814. We are not persuaded this was


the case here. As we noted above, we find nothing to suggest that Silvia’s testimony was


unreliable. The trial judge, who is in the best position to view the witness, her demeanor,


gestures, and voice inflections, concluded that she was competent to testify. We find nothing


to contradict that finding.


       {¶ 16} Further, during cross-examination, defense counsel pointedly questioned Silvia


about her drug addiction, as well as her convictions for drug-related offenses. It is axiomatic


that witness credibility and evidence weight are issues that the trier of fact must determine. See


State v. Dye (1998), 82 Ohio St.3d 323, 329, 695 N.E.2d 763; State v. Williams (1995),


73 Ohio St.3d 153, 165, 652 N.E.2d 721. A trier of fact may believe all, part, or none of the


testimony of any witness who appears before it. State v. Nichols (1993), 85 Ohio App.3d 65,
ADAMS, 09CA886                                                                                   11


76, 619 N.E.2d 80; State v. Caldwell (1992), 79 Ohio App.3d 667, 679, 607 N.E.2d 1096.


Here, the jury apparently opted to believe Silvia's testimony, despite the evidence of her


addiction.


       {¶ 17} We also point out that, contrary to appellant’s assertion, Silvia’s testimony was


not the only evidence adduced at trial that implicated him. The recording of the two controlled


drug buys, as well as the testimony of Demint and Cooley, placed appellant at the scene and


identified his voice on the recordings. These recordings of the controlled buys were produced


at trial. Although neither officer personally witnessed those buys, they did see appellant arrive


at and leave Silvia’s residence. The recordings were also played several times during the trial,


and the transcript reveals that money and medication were counted.


       {¶ 18} In light of all this, we cannot conclude that the jury clearly lost its way and created


a manifest miscarriage of justice by finding appellant guilty of the charges. Thus, we overrule


appellant's second assignment of error.


       {¶ 19} Having reviewed all the errors assigned and argued in the briefs and having found
ADAMS, 09CA886                                                               12


merit in none, we hereby affirm the trial court's judgment.


                                                              Judgment affirmed.


       HARSHA and KLINE, JJ., concur.
