[Cite as State v. Mann, 2011-Ohio-6468.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


                                              :   JUDGES:
STATE OF OHIO                                 :   William B. Hoffman, P.J.
                                              :   Sheila G. Farmer, J.
                         Plaintiff-Appellee   :   Julie A. Edwards, J.
                                              :
-vs-                                          :   Case No. 11-CA-2
                                              :
                                              :
ROBERT A. MANN                                :   OPINION

                    Defendant-Appellant




CHARACTER OF PROCEEDING:                           Criminal Appeal from Licking County
                                                   Court of Common Pleas Case No.
                                                   10-CR130

JUDGMENT:                                          Affirmed In Part and Reversed and
                                                   Remanded In Part

DATE OF JUDGMENT ENTRY:                            December 13, 2011

APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

EARL L. FROST                                      DENNIS W. McNAMARA
Assistant County Prosecuting Attorney              88 East Broad Street – Suite 1350
Licking County Prosecutor’s Office                 Columbus, Ohio 43215
20 South Second Street
Newark, Ohio 43055
[Cite as State v. Mann, 2011-Ohio-6468.]


Edwards, J.

        {¶1}    Appellant, Robert A. Mann, appeals a judgment of the Licking County

Common Pleas Court convicting him of trafficking in marijuana (R.C. 2925.03(A)(2)),

possession of marijuana (R.C. 2925.11(A)) and aggravated possession of drugs (R.C.

2925.11(C)(1)).

                               STATEMENT OF FACTS AND CASE

        {¶2}    On August 3, 2009, appellant traveled to Columbus with his friend,

Michael Fletcher, to purchase marijuana from a man named Chris Clark. The pair had

purchased marijuana from Clark in the past and divided it between them at home.

Fletcher had purchased marijuana from appellant in the past and owed him money.

Fletcher worked on paying this debt by setting up the drug deal in Columbus.

        {¶3}    The two men traveled to Columbus where they met up with Clark.

Appellant paid for the drugs and placed the drugs in the trunk of the vehicle, which was

owned by Fletcher’s girlfriend. Fletcher was high on the day in question because during

the trip, he used a pill crusher to crush prescription medication, which he injected into

his arm.

        {¶4}    After they picked up the marijuana, the vehicle was stopped by Trooper

Michael Wilson of the Ohio State Highway Patrol. Appellant was driving. The trooper

noted that appellant was quiet and avoided eye contact, while Fletcher appeared to be

under the influence. The officer saw flakes of marijuana on the center console of the

car.   Upon searching appellant, the officer found a collapsible knife, Percocet and

$1,230.00 on his person. In the car, the trooper found a syringe, a burnt spoon with

white powder on it and a pill crusher.      The officer noted fresh needle tracks on
Licking County App. Case No. 11-CA-2                                                  3


Fletcher’s arm. In the trunk of the car, the officer found an Aldi’s bag containing 10

pounds of marijuana and marijuana bale wrappers.

      {¶5}   Appellant was indicted by the Licking County Grand Jury with trafficking in

marijuana, possession of marijuana and aggravated possession of drugs. Following

jury trial he was convicted as charged and sentenced to five years community control.

He assigns two errors on appeal:

      {¶6}   “I. THE JURY’S VERDICTS AS TO COUNTS ONE AND TWO WERE

NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE.

      {¶7}   “II. THE TRIAL COURT ERRED WHEN IT IMPOSED SENTENCES FOR

BOTH TRAFFICKING AND POSSESSION OF THE SAME MARIJUANA.”

                                               I

      {¶8}   In his first assignment of error, appellant argues that the convictions on

the two marijuana charges are against the manifest weight of the evidence.

      {¶9}   In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire

record, weighs the evidence and all reasonable inferences, considers the credibility of

witnesses, and determines whether in resolving conflicts in 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. Thompkins, 78 Ohio St.3d 380, 387, 678

N.E.2d 541, 1997-Ohio-52, quoting State v. Martin (1983), 20 Ohio App.3d 172, 175,

485 N.E.2d 717.

      {¶10} Appellant was convicted of trafficking marijuana in violation of R.C.

2925.03(A)(2):
Licking County App. Case No. 11-CA-2                                                     4


       {¶11} “(A) No person shall knowingly do any of the following:

       {¶12} “(2) Prepare for shipment, ship, transport, deliver, prepare for distribution,

or distribute a controlled substance, when the offender knows or has reasonable cause

to believe that the controlled substance is intended for sale or resale by the offender or

another person.”

       {¶13} He was also convicted of possession of marijuana in violation of R.C.

2925.11(A):

       {¶14} “(A) No person shall knowingly obtain, possess, or use a controlled

substance.”

       {¶15} Appellant does not contest that the substance found in the trunk of the

vehicle he was driving was a controlled substance nor does he contest its weight. He

argues that the state failed to prove a connection between him and the marijuana in the

trunk. He argues that the jury lost its way in believing the testimony of Fletcher. He

argues that Fletcher lied to the trooper initially and gave several versions of the facts,

and Fletcher was drug-dependent. He argues that Fletcher’s trial testimony in which he

blamed appellant for the presence of the drugs was fabricated in the hopes of receiving

probation, thus continuing to have access to drugs.          Appellant notes that even the

trooper testified that Fletcher’s testimony at trial was at times in error:

       {¶16} “Q. Did you determine who owned the vehicle?

       {¶17} “A. Yes.

       {¶18} “Q. Was Mr. Fletcher truthful about that, that it was his girlfriend?

       {¶19} “A. Yes, sir.

       {¶20} “Q. You indicated that Mr. Fletcher had $358 in your testimony?
Licking County App. Case No. 11-CA-2                                                   5


      {¶21} “A. No. I said $308.

      {¶22} “Q. $308?

      {¶23} “A. Yes, sir.

      {¶24} “Q. I think he testified he had $130 or $150 or something.          Was he

mistaken?

      {¶25} “A. Yes, sir.

      {¶26} “Q. He was mistaken about a lot of things in his testimony?” Tr. 217.

      {¶27} “Q. You were here all day, weren’t you - -

      {¶28} “A. Yes, sir.

      {¶29} “Q. - - and heard his testimony?

      {¶30} “A. I came in - - I believe it was maybe after he already started, so I can’t

speculate to what was said up to that point.

      {¶31} “Q. During the time you were here, he was mistaken about a lot of things,

wasn’t he?

      {¶32} “A. Yes.” Tr. 218.

      {¶33} However, the jury was aware that Fletcher was under the influence of

drugs on the day in question, was mistaken in his testimony on the amount of money he

had on his person and gave several versions of the facts to the police, yet the jury

chose to believe his testimony. We cannot find that the jury lost its way in believing

Fletcher’s testimony. Fletcher’s testimony that he and appellant travelled together to

Columbus to pick up marijuana would explain why appellant was driving a car belonging

to Fletcher’s girlfriend. Further, while handling the marijuana the officer got flakes on

his hand similar to those found on the console near the gearshift. The officer testified
Licking County App. Case No. 11-CA-2                                                   6


that he found marijuana bale wrappers in the trunk which had been cut corner to corner,

with remnants of marijuana left in the wrapper. The officer pulled out a portion of the

marijuana in front of the jury, and demonstrated how he had flakes all over his hands

like the flakes found on the center console of the car. He testified that if he cut bales

open, put them in a bag, got in the car and used the gear shift while driving, the flakes

would be consistent with where they were found in the car. The officer further testified

that appellant was the first in thousands of vehicle searches he had conducted who did

not look one time during the search to see what was happening. The officer testified

that he was taught at the patrol academy that people tend to distance themselves from

a vehicle when they know it contains contraband. Fletcher’s testimony that appellant

was aware of the marijuana in the trunk was corroborated by the circumstantial

evidence.

      {¶34} The first assignment of error is overruled.

                                               II

      {¶35} Appellant argues that the court erred in sentencing him for both trafficking

and possession of the same marijuana, as they are allied offenses of similar import.

The state concedes that the court erred in sentencing him for both offenses and agrees

that the matter should be remanded for resentencing.

      {¶36} The second assignment of error is sustained.
Licking County App. Case No. 11-CA-2                                                    7


      {¶37} The judgment of the Licking County Common Pleas Court is reversed only

as to the imposition of sentences for both trafficking and possession of marijuana. In all

other respects the judgment is affirmed.     This cause is remanded to that court for

resentencing.



By: Edwards, J.

Hoffman, P.J. and

Farmer, J. concur

                                                   ______________________________



                                                   ______________________________



                                                   ______________________________

                                                                JUDGES

JAE/r0920
[Cite as State v. Mann, 2011-Ohio-6468.]


               IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                    :
                                                 :
                            Plaintiff-Appellee   :
                                                 :
                                                 :
-vs-                                             :       JUDGMENT ENTRY
                                                 :
ROBERT A. MANN                                   :
                                                 :
                       Defendant-Appellant       :       CASE NO. 11-CA-2




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Licking County Court of Common Pleas is reversed and remanded only

as to the imposition of sentences for both trafficking and possession of marijuana. In all

other respects, the judgment is affirmed. Costs assessed 50% to appellee and 50% to

appellant.




                                                     _________________________________


                                                     _________________________________


                                                     _________________________________

                                                                  JUDGES
