[Cite as State v. Thornton, 2014-Ohio-2773.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 100592




                                      STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                DARRELL THORNTON
                                                     DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-13-575107-A

        BEFORE: E.T. Gallagher, J., Rocco, P.J., and Kilbane, J.

        RELEASED AND JOURNALIZED: June 26, 2014
ATTORNEY FOR APPELLANT

Allison S. Breneman
1220 West 6th Street
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Ryan Bokoch
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:

          {¶1} Defendant-appellant, Darrell Thornton (“Thornton”), appeals his drug

trafficking and permitting drug abuse convictions. We find no merit to the appeal and

affirm.

          {¶2} Thornton was charged with two counts of drug trafficking in violation of

R.C. 2925.03(A)(1) and (A)(2), one count of drug possession in violation of R.C.

2925.11(A), and one count of permitting drug abuse in violation of R.C. 2925.13(A).

The trafficking and permitting drug abuse charges each included a juvenile specification,

alleging that the offenses were committed within 100 feet or within view of a juvenile.

The case proceeded to a jury trial.

          {¶3} One of the prospective jurors, Mr. Rodriguez (“Rodriguez”), was a police

officer with the Cuyahoga Metropolitan Housing Authority (“CMHA”). During voir

dire, he stated that he knew two CMHA officers who were expected to testify for the state

and that he would be biased. He also admitted that he would give “an automatic stamp

of credibility to them” as he has trained and worked with them.             Rodriguez was

ultimately excused for cause.

          {¶4} Three witnesses testified for the state. Detective Michael Duller (“Duller”),

a detective in the Cleveland Police Department vice unit, testified that on June 5, 2013, he

conducted a “controlled buy” with a confidential reliable informant (“CRI”).             He

considered the informant reliable because he has consistently provided accurate

information to police for over nine years. On the evening of June 5th, Duller gave the
CRI a $20 bill that had been marked and photocopied with its serial number. The CRI

also wore a wire that could transmit any conversation he had with the suspects to Duller’s

radio.

         {¶5} Duller parked his unmarked vehicle across the street from a Dairy Mart

located at the corner of West 89th Street and Detroit Avenue in Cleveland. Duller

observed two men exit a white Oldsmobile parked at the Dairy Mart and approach the

CRI. He recognized one of the men as Walter Cockrell (“Cockrell”) from prior arrests.

The other man was later identified as Thornton. A few minutes later, another group of

males entered the parking lot, and a juvenile, who was later identified as G.J., got into the

back seat of the white Oldsmobile with the CRI. Thornton sat in the driver’s seat and

Cockrell sat in the front passenger seat.

         {¶6} When the sale was complete, the CRI gave Duller a verbal signal and G.J.

then exited the vehicle.     Duller, who continued to listen to the conversation, heard

someone demanding a piece of the crack as “commission” for the sale. Duller explained

that drug dealers in this area often use “middle men.” Middle men

         are usually addicted to narcotics and are seeking narcotics but may not have
         the money to purchase them on their own behalf so they will negotiate deals
         for other addicts. And, as a result of that, they will then take a portion of
         the proceeds of that purchase for their own behalf, and that was the case.

Tr. 368.
After reaching an agreement on the commission, the CRI exited the vehicle. The white

Oldsmobile, driven by Thornton, proceeded down Detroit Avenue, where takedown units
arrested him.    Meanwhile, other takedown units were directed to arrest G.J., and

recovered from him the marked “buy” money.

       {¶7} Police searched Thornton, Cockrell, and the vehicle at the time of Thornton’s

arrest and did not find any cocaine or other contraband. Duller testified that he has

witnessed drug trafficking suspects swallow small pieces of crack cocaine in an effort to

conceal them. The pieces given as “commission” may be as small as a crumb. Duller

suggested that Thornton may have swallowed the cocaine to hide it from police.

       {¶8} Detective Clinton Ovalle (“Ovalle”), of CMHA, and Lieutenant Lou Pipoly

(“Pipoly”), who head the Cleveland Police Department First District vice unit, also

participated in the “controlled buy.” They corroborated Duller’s testimony. Pipoly, who

initiated the stop of Thornton’s vehicle, testified that Thornton cooperated with police.

       {¶9} The jury found Thornton guilty of one count of drug trafficking, in violation

of R.C. 2925.03(A)(1), and one count of permitting drug abuse, in violation of R.C.

2925.13(A). They found him not guilty of the other two counts in the indictment. The

court sentenced Thornton to community control sanctions. Thornton now appeals and

raises three assignments of error.



                   Sufficiency and Manifest Weight of the Evidence

       {¶10} In the first assignment of error, Thornton argues his convictions were

against the manifest weight of the evidence. In the second assignment of error, he argues

there was insufficient evidence to sustain his convictions.           Although the terms
“sufficiency” and “weight” of the evidence are “quantitatively and qualitatively

different,” we address these issues together because they are closely related, while

applying the distinct standards of review to Thornton’s arguments. State v. Thompkins,

78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).

       {¶11} The test for sufficiency requires a determination of whether the prosecution

met its burden of production at trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266,

2009-Ohio-3598, ¶ 12. The 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, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

       {¶12} In contrast to sufficiency, “weight of the evidence involves the inclination of

the greater amount of credible evidence.” Thompkins at 387. While “sufficiency of the

evidence is a test of adequacy as to whether the evidence is legally sufficient to support a

verdict as a matter of law, * * * weight of the evidence addresses the evidence’s effect of

inducing belief.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d

1264, ¶ 25, citing Thompkins at 386-387. “In other words, a reviewing court asks whose

evidence is more persuasive — the state’s or the defendant’s?” Id. The reviewing court

must consider all the evidence in the record, the reasonable inferences, and the credibility

of the witnesses, to 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.’” Thompkins at 387, quoting State v. Martin, 20

Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

       {¶13} Thornton argues there was no evidence that he knowingly sold or offered to

sell cocaine to the CRI because police found no drugs or buy money in his possession at

the time of his arrest. He also asserts that none of the witnesses identified his voice on

the audio recording taken from the CRI’s wire and that there was no evidence proving

that G.J. was a juvenile.

       {¶14} Thornton was convicted of trafficking in violation of R.C. 2925.03(A)(1),

which states, in pertinent part, that “[n]o person shall knowingly * * * [s]ell or offer to

sell a controlled substance.” He was also convicted of permitting drug abuse in violation

of R.C. 2925.13(A), which states that “[n]o person who is the owner, operator * * * of [a]

vehicle, as defined in division (A) of section 4501.01 of the Revised Code, shall

knowingly permit the vehicle to be used for the commission of a felony drug abuse

offense.”

       {¶15} Although no one identified Thornton’s voice on the audio recording, which

was played for the jury, circumstantial evidence established that he was complicit in the

crimes as an aider and abettor. Ohio’s complicity statute, R.C. 2923.03(A)(2), states, in

relevant part, that “[n]o person, acting with the kind of culpability required for the

commission of an offense, shall * * * [a]id or abet another in committing the offense[.]”

R.C. 2923.03(F) further provides that “[w]hoever violates this section is guilty of
complicity in the commission of an offense, and shall be prosecuted and punished as if he

were a principal offender.”

      {¶16} To prove a defendant’s complicity through aiding and abetting “[t]he

evidence must show that the defendant supported, assisted, encouraged, cooperated with,

advised, or incited the principal in the commission of the crime and that the defendant

shared the criminal intent of the principal.” State v. Johnson, 93 Ohio St.3d 240, 245,

754 N.E.2d 796 (2001). Proof of a shared criminal intent may be inferred from the

circumstances surrounding the offense including presence, companionship, and conduct

before and after the offense is committed. Id. at 243.

      {¶17} Duller testified that he observed Thornton and Cockrell approach the CRI in

the Dairy Mart parking lot where he overhead them discussing the sale of cocaine. They

informed the CRI that neither of them had any cocaine and offered to transport the CRI in

Thornton’s white Oldsmobile to a location where cocaine was readily available.

Moments later G.J. arrived in the parking lot and entered the back seat of Thornton’s

white Oldsmobile with the CRI. Thornton sat in the driver’s seat, and Cockrell sat in the

front passenger seat. Referring to G.J., either Thornton or Cockrell informed the CRI

that “he’s one of our people.” Shortly thereafter, the CRI gave Duller a verbal signal that

the transaction was complete.

      {¶18} After G.J. exited the car, Duller heard Thornton and Cockrell demanding a

larger piece of cocaine as commission. Although Thornton’s voice was not identified in

the recording and no drugs were found in his possession, the fact that he allowed the sale
to occur inside his vehicle is sufficient to prove that he knowingly permitted drug abuse

and that he aided and abetted G.J. in the sale of drugs.

       {¶19} We find no reason to question Duller’s credibility. The testimony of all

three witnesses was consistent with each other and corroborated one another’s testimony

that Thornton arranged the sale of drugs with G.J. Therefore, the jury’s conclusion that

he aided and abetted the sale of cocaine and allowed the sale to take place inside his car is

sustained by the manifest weight of the evidence.

       {¶20} As previously stated, Thornton’s convictions included a juvenile

specification, which required the state to prove, beyond a reasonable doubt, that

Thornton:

       commit[ted] the offense within one hundred feet of a juvenile or within the
       view of a juvenile, regardless of whether the offender knows the age of the
       juvenile, whether the offender knows the offense is being committed within
       one hundred feet of or within view of the juvenile, or whether the juvenile
       actually views the commission of the offense.

R.C. 2925.01(BB). Thornton argues there was insufficient evidence to prove that G.J.

was a juvenile because the state did not offer his birth certificate into evidence to

establish his exact age.

       {¶21} R.C. 2925.01(N) defines “juvenile” as “a person under eighteen years of

age.” Although the statute does not require proof of the specific age or identity of the

alleged juvenile, the state must prove beyond a reasonable doubt that any such individual

is under the age of 18.      State v. Creech, 12th Dist. Fayette No. CA2006-05-019,

2007-Ohio-2558, ¶ 18.
        {¶22} In this case, when Ovalle described the events immediately following the

drug sale, he stated that he observed “the young male” exiting the white Oldsmobile.

Pipoly testified that G.J. was 17 years old and that his date of birth was February 18,

1996.    In response to defense questioning, Duller testified that there were charges

pending against G.J. in juvenile court. This testimony, which provided the juvenile’s

precise age and date of birth, is sufficient to establish G.J. was a juvenile at the time

Thornton committed the offenses giving rise to this case. The jury found this evidence

credible, and we find nothing in the record to contradict this evidence. Therefore, the

juvenile specifications are sustained by sufficient evidence and the manifest weight of the

evidence.

        {¶23} Accordingly, the first and second assignments of error are overruled.

                                        Voir Dire

        {¶24} In the third assignment of error, Thornton argues he was prejudiced by

statements made by a juror during voir dire. During voir dire, juror Rodriguez admitted

that he trained and worked alongside two potential witness as CMHA officers. Thornton

contends Rodriguez’s statements about his relationship with these officers unfairly

influenced the other jurors into believing they should be credible witnesses.

        {¶25} Thornton did not object to Rodriguez’s statements and therefore forfeited all

but plain error. State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶

52. Crim.R. 52(B) provides that, “[p]lain errors or defects affecting substantial rights

may be noticed although they were not brought to the attention of the court.”   To prevail
under a plain error analysis, appellant bears the burden of demonstrating that the outcome

of the trial clearly would have been different but for the error. State v. Long, 53 Ohio

St.2d 91, 372 N.E.2d 804 (1978), paragraph two of the syllabus.

      {¶26} During voir dire, the judge questioned every juror in an obvious attempt to

uncover biases. Rodriguez candidly admitted that he would be biased in favor of Ovalle

because they worked together, often in arresting drug traffickers. During the voir dire,

the following dialogue took place:

      THE COURT: How do you feel about sitting in judgment in a case where 2
      of your colleagues are expected to be called as witnesses?

      THE JUROR: The problem with that is, I train them. I admire the men.
      So I can’t really say I would be unbiased.
      *    *      *

      THE COURT: You mentioned that you thought that you may not be able to
      be unbiased. Can we talk about that a little further?

      THE JUROR: Okay. Yes.

      THE COURT: If you would take it from the perspective of the accused for a
      moment — I mean, this is with great respect to you — would you want to
      select you as a juror in this case?

      THE JUROR: I think I honestly work alongside them too closely to be
      involved in this case. So —

      THE COURT: Okay. If you were convinced that the state did not meet
      their burden of proof of convincing you beyond a reasonable doubt as to the
      essential elements of the crimes charged, what would you do?

      THE JUROR: If I was going to find reasonable doubt, that they didn’t meet
      the requirements, then he would be found not guilty.

      THE COURT: Okay.
      THE JUROR: I would decide that he’s not guilty, if that[’s] what it came
      down to.
      *    *     *
      THE COURT: What kind of pressure would you feel, real or otherwise,
      imposed upon you by virtue of sitting in judgment in a case where 2 fellow
      officers with whom you trained were testifying?

      THE JUROR: None. None at all.
      {¶27} None of Rodriguez’s responses mentioned anything about the officers

being good, honest people. Rodriguez merely stated that he would be biased in favor of

the officers because he trained them and regularly works alongside them. We find

nothing prejudicial about Rodriguez’s responses to the court’s questions. Furthermore,

when the court questioned every other juror, they agreed they would not give police

officers any more credibility than any other witness. Nothing in the record indicates that

the jury was influenced by Rodriguez’s statements.        Thornton bears the burden on

plain-error review, and he has not met that burden.

      {¶28} Therefore, the third assignment of error is overruled.

      {¶29} Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



EILEEN T. GALLAGHER, JUDGE

KENNETH A. ROCCO, P.J., and
MARY EILEEN KILBANE, J., CONCUR
