[Cite as State v. Watson, 2017-Ohio-1402.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                             BUTLER COUNTY




STATE OF OHIO,                                     :

        Plaintiff-Appellee,                        :     CASE NO. CA2016-07-138

                                                   :           OPINION
    - vs -                                                      4/17/2017
                                                   :

MAURICE L. WATSON,                                 :

        Defendant-Appellant.                       :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2016-02-0153



Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Mark W. Raines, 246 High Street, Hamilton, Ohio 45011, for defendant-appellant



        PIPER, J.

        {¶ 1} Defendant-appellant, Maurice Watson, appeals his conviction in the Butler

County Court of Common Pleas for aggravated trafficking in drugs within the vicinity of a

school.

        {¶ 2} The Butler County Sheriff's Office began investigating Watson after a

confidential informant indicated Watson was involved in drug activity. Agents with the Butler

County Undercover Regional Narcotics Unit ("BURN") worked with the confidential informant
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to perform a controlled buy. The confidential informant was given an audio and video

recording device and money to purchase drugs. The confidential informant then approached

Watson's residence.

      {¶ 3} Joanice Sharp, Watson's girlfriend who lived with Watson in his home, unlocked

the door to the residence and entered with the confidential informant. Sharp and the

confidential informant then discussed the increase cost of drugs, and that Sharp was a drug

user herself. Sharp told the confidential informant that she had to pay for her drugs because

Watson did not "feed her" for free. During that conversation, Watson walked into the room

and sat on the couch.

      {¶ 4} Within the video taken by the confidential informant, Watson can be seen with a

baggie in his hand that contained a substance. After Watson handed the confidential

informant the bag, the confidential informant complained that the bag was not tied in the

manner that Sharp normally tied the bag. Watson then stated that he did not "work in

customer service."

      {¶ 5} The confidential informant returned to the BURN agent's car, and handed him

the baggie.   The substance was tested, and proven to contain fentanyl, a controlled

substance. Watson was arrested and indicted for aggravated drug trafficking and aggravated

possession. The charges carried an enhancement that Watson committed the drug-related

crimes within the vicinity of a school. Watson pled not guilty, and the matter proceeded to a

two-day trial. The jury found Watson guilty of both charges, and the trial court merged the

counts before sentencing Watson to 30 months in prison.          Watson now appeals his

conviction and sentence, raising the following assignments of error.

      {¶ 6} Assignment of Error No. 1:

      {¶ 7} THE TRIAL COURT ERRED IN FAILING TO GRANT DEFENDANT'S RULE 29

MOTION FOR ACQUITTAL AS EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW
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TO SUPPORT THE CONVICTION OF AGGREVATED [SIC] TRAFFICKING.

         {¶ 8} Watson argues in his first assignment of error that his Crim.R. 29 motion should

have been granted.

         {¶ 9} Crim.R. 29(A) provides that "[t]he 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 * * * if the evidence is insufficient to sustain a conviction of such offense or

offenses." An appellate court reviews the denial of a Crim.R. 29(A) motion pursuant to the

same standard as that used to review a sufficiency-of-the-evidence claim. State v. Mota,

12th Dist. Warren No. CA2007-06-082, 2008-Ohio-4163, ¶ 5.

         {¶ 10} When reviewing the sufficiency of the evidence underlying a criminal

conviction, an appellate court examines the evidence to determine whether such evidence, if

believed, would convince the average mind of the defendant's guilt beyond a reasonable

doubt.     State v. Paul, 12th Dist. Fayette No. CA2011-10-026, 2012-Ohio-3205, ¶ 9.

Therefore, "[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." State v. Jenks, 61 Ohio St.3d 259 (1991),

paragraph two of the syllabus.

         {¶ 11} Watson was convicted of aggravated trafficking in drugs in violation of R.C.

2925.03(A)(1), which provides, "No person shall knowingly do any of the following: sell or

offer to sell a controlled substance or a controlled substance analog."

         {¶ 12} During the jury trial, the state presented evidence, that when viewed in a light

most favorable to the prosecutor, proves that Watson was guilty of aggravated trafficking in

drugs.1


1. As will be addressed within Watson's second assignment of error, the enhancement for committing the crime
within the vicinity of the school was also proven by the state. Although Watson was also convicted of aggravated
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        {¶ 13} The state called an agent with the BURN unit, who testified that he was

involved in an investigation of Watson that started with a tip from a confidential informant that

Watson was involved in drug activity. The agent testified that the investigation included

conducting a controlled buy involving the confidential informant at Watson's home. The

agent testified that Sharp and Watson lived in Watson's home, and that he gave the

confidential informant a video and audio device to use during the buy. After the confidential

informant was patted down to ensure that she was not carrying any drugs or paraphernalia,

the agents gave the device to the confidential informant. Agents also gave the confidential

informant $60.00 to purchase the drugs.

        {¶ 14} The state then showed the jury the video captured by the confidential

informant's recording device during the controlled buy. Within the video, Watson is seen

sitting on the couch with a baggie in his hands. The confidential informant is looking at

Watson when she takes out her money, and then an exchange occurs between the two, with

Watson handing the confidential informant the baggie. The baggie was later determined to

contain the controlled substance fentanyl.

        {¶ 15} The agent then testified that after the controlled buy, the confidential informant

returned to the agent's car and gave him the baggie. The agent also confirmed that the

confidential informant returned to the car with no money.

        {¶ 16} The state also called a forensic scientist who was employed with the Bureau of

Criminal Identification as a chemical analyst. The analyst testified that the substance

contained in the baggie, as given to the BURN agent by the confidential informant after the

controlled buy, was fentanyl.          The analyst also testified that fentanyl is a controlled

substance.


possession of drugs, that count was merged for the purposes of sentencing, and Watson does not challenge that
conviction on appeal.
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       {¶ 17} After viewing this evidence in a light most favorable to the prosecution, we find

that any rational trier of fact could have found the essential elements of aggravated drug

trafficking proven beyond a reasonable doubt. As such, the trial court properly denied

Watson's Crim.R. 29 motion, and Watson's first assignment of error is overruled.

       {¶ 18} Assignment of Error No. 2:

       {¶ 19} THE CONVICTION AS RELATED TO THE ENHANCEMENT FOR DRUG

TRAFFICKING IN THE VICINITY OF A SCHOOL WAS INSUFFICIENT TO PROVE THE

INCIDENT TOOK PLACE IN THE VICINITY OF A SCHOOL.

       {¶ 20} Watson argues in his second assignment of error that the state failed to prove

that his crimes were committed within the vicinity of a school.

       {¶ 21} According to R.C. 2925.03(C)(1)(b), if the offense was committed within the

vicinity of a school or juvenile, aggravated trafficking in drugs is a third-degree felony. R.C.

2925.01(P) and (Q) define "in the vicinity of a school" as being "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" within these

specified areas.

       {¶ 22} School, as used in defining school premises, is defined within R.C. 2925.01(Q)

as:

              any school operated by a board of education, any community
              school established under [R.C. Chapter 3314], or any nonpublic
              school for which the state board of education prescribes
              minimum standards under [R.C. 3301.07], whether or not any
              instruction, extracurricular activities, or training provided by the
              school is being conducted at the time a criminal offense is
              committed.

       {¶ 23} The school enhancement specification increases the felony level for the

offense and must be separately established beyond a reasonable doubt. State v. Howard,

12th Dist. Warren No. CA2012-04-034, 2013-Ohio-1489, ¶ 55. As such, it is "an essential
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element of the state's case-in-chief." Id. The intent behind the school enhancement

specification is "to punish more severely those who engage in the sale of illegal drugs in the

vicinity of our schools and our children." Id.

       {¶ 24} The state called a BURN drug task force sergeant who supervises daily

activities of the unit such as undercover buys, execution of search warrants, and arrests.

The sergeant testified that Watson's apartment building backs up to the Highland Elementary

School, which is part of the Hamilton School District. The sergeant further testified regarding

pictures of Watson's apartment, which depicted the closeness of the school to Watson's

apartment, as well as a measuring device utilized by the BURN unit to measure the distance

between Watson's apartment and the school.

       {¶ 25} The sergeant then testified about measuring the distance between Watson's

apartment and the Highland Elementary School. The sergeant measured 65 feet, 1 inch

between the school property and the apartment building, and 121 feet between the

apartment building and Watson's apartment. Therefore, the total distance between the

school and Watson's apartment was approximately 186 feet. The sergeant then testified that

the school was in use on the day of Watson's arrest.

       {¶ 26} While Watson argues that the state did not present sufficient evidence

because "merely calling a building a school does not meet the required level of proof to

establish the school vicinity enhancement," this court has previously held that "circumstantial

evidence may be used to prove that a building falls under the definition of 'school' required by

R.C. 2925.01(Q)." Howard at ¶ 66.

       {¶ 27} The state provided testimony from the BURN sergeant that Watson's

apartment was within 186 feet of the Highland Elementary School, and that such school was

part of the Hamilton City School District. The state also presented maps of the area that

showed the proximity of Watson's apartment to the school. As such, and when viewed in a
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light most favorable to the prosecution, the school enhancement was supported by sufficient

evidence. Watson's second assignment of error is, therefore, overruled.

      {¶ 28} Judgment affirmed.


      HENDRICKSON, P.J., and M. POWELL, J., concur.




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