[Cite as State v. Hirbawi, 2020-Ohio-54.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

STATE OF OHIO                                        C.A. No.       18CA011252

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
ZIYAD HIRBAWI                                        COURT OF COMMON PLEAS
                                                     COUNTY OF LORAIN, OHIO
        Appellant                                    CASE Nos. 15CR092114
                                                                16CR093218

                                  DECISION AND JOURNAL ENTRY

Dated: January 13, 2020



        TEODOSIO, Presiding Judge.

        {¶1}     Appellant, Ziyad Hirbawi, appeals from his convictions for trafficking and

possession of drugs in the Lorain County Court of Common Pleas. This Court affirms.

                                                I.

        {¶2}     The Lorain Police Department began investigating a local convenience store

(“611 Market”) owned by Mr. Hirbawi for allegedly buying and selling stolen merchandise. The

police conducted five controlled sales of purportedly stolen merchandise to the store and, in turn,

obtained a search warrant for the premises. During execution of the search warrant, the police

seized a cigar box containing all twenty-dollar bills next to a large plastic bag containing a

vegetable-like matter thought to be the illegal type of the drug “spice” from inside a cubbyhole,

under an unused deli counter, in the back corner of the store. The substance was later identified

by the crime lab as AB-CHMINACA, an illegal, synthetic cannabinoid.
                                                2


       {¶3}    The Elyria Police Department also began its own investigation into 611 Market

following several overdoses from spice. They conducted a controlled buy of spice from Mr.

Hirbawi at his store, and thereafter obtained a search warrant for 611 Market. During execution

of the search warrant, the police discovered vegetable matter thought to be synthetic marijuana,

packaging materials, a scale, a bottle of acetone, and cash. The vegetable matter was later

identified by the crime lab as AB-CHMINACA.

       {¶4}    Mr. Hirbawi was charged in case number 15CR092114 with one count of

trafficking in drugs, a felony of the second degree, one count of possession of drugs, a felony of

the second degree, one count of trafficking in drugs, a felony of the fourth degree, and one count

of drug paraphernalia offense, a misdemeanor of the fourth degree.              In case number

16CR093218, he was charged with one count of trafficking in drugs, a felony of the second

degree, one count of possession of drugs, a felony of the second degree, one count of receiving

stolen property, a felony of the fifth degree, and one count of possession of criminal tools, a

felony of the fifth degree.

       {¶5}    The two cases were consolidated and the matter proceeded to a bench trial. The

trial court ultimately found Mr. Hirbawi guilty of all counts. The court sentenced him to an

aggregate total of two years in prison, but granted his motion for bond pending appeal.

       {¶6}    Mr. Hirbawi now appeals only from his trafficking and possession convictions,

and raises two assignments of error for this Court’s review.

                                                II.

                              ASSIGNMENT OF ERROR ONE

       APPELLANT’S CONVICTIONS FOR TRAFFICKING IN DRUGS AND
       POSSESSION OF DRUGS ARE BASED ON INSUFFICIENT EVIDENCE.
                                                 3


       {¶7}    In his first assignment of error, Mr. Hirbawi argues that, due to his mistake of fact

in believing he was selling a legal type of spice, the State could not present sufficient evidence

that he knowingly trafficked or possessed illegal drugs. We disagree.

       {¶8}    Whether a conviction is supported by sufficient evidence is a question of law,

which this Court reviews de novo.        State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).

“Sufficiency concerns the burden of production and tests whether the prosecution presented

adequate evidence for the case to go to the jury.” State v. Bressi, 9th Dist. Summit No. 27575,

2016-Ohio-5211, ¶ 25, citing Thompkins at 386. “‘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.’” Id., quoting State

v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. However, “we do not resolve

evidentiary conflicts or assess the credibility of witnesses, because these functions belong to the

trier of fact.” State v. Hall, 9th Dist. Summit No. 27827, 2017-Ohio-73, ¶ 10.

       {¶9}    Mr. Hirbawi was convicted of trafficking in drugs under R.C. 2925.03(A), which

states: “No person shall knowingly * * * (1) Sell or offer to sell a controlled substance or a

controlled substance analog; (2) Prepare for shipment, ship, transport, deliver, prepare for

distribution, or distribute a controlled substance or a controlled substance analog, when the

offender knows or has reasonable cause to believe that the controlled substance or a controlled

substance analog is intended for sale or resale by the offender or another person.” He was also

convicted of possession of drugs under R.C. 2925.11(A), which states: “No person shall

knowingly obtain, possess, or use a controlled substance or a controlled substance analog.”

       {¶10} Mr. Hirbawi argues that the State presented insufficient evidence to demonstrate

that he knowingly trafficked and possessed the illegal type of spice.         Because he has not
                                                 4


challenged his convictions for the remaining counts, and only challenges the knowingly element

of his trafficking and possession offenses, we will likewise limit our analysis accordingly. “A

person acts knowingly, regardless of purpose, when the person is aware that the person’s conduct

will probably cause a certain result or will probably be of a certain nature. A person has

knowledge of circumstances when the person is aware that such circumstances probably exist.”

R.C. 2901.22(B).

       {¶11} Mr. Hirbawi raised mistake of fact as a defense at trial and, in turn, now argues on

appeal that his mistake of fact⸺a mistaken belief that the spice he was selling and possessing

was of the legal variety⸺precluded the State from presenting sufficient evidence that he

knowingly trafficked and possessed drugs. “‘Mistake of fact is widely recognized as a defense to

specific intent crimes * * * since, when the defendant has an honest purpose, such a purpose

provides an excuse for an act that would otherwise be deemed criminal. * * * When [the]

defendant, due to a mistake of fact, does not have the specific mens rea required by the statute,

the maxim ignorantia facti excusat applies.’” (Emphasis sic.) State v. Brumback, 109 Ohio

App.3d 65, 75 (9th Dist.1996), quoting State v. Snowden, 7 Ohio App.3d 358, 363 (10th

Dist.1982).

       {¶12} A review for sufficiency of the evidence, however, does not apply to affirmative

defenses because this review does not consider the strength of defense evidence. State v.

Mohamed, 9th Dist. Medina No. 11CA0050-M, 2012-Ohio-3636, ¶ 7. Because a claim of

insufficient evidence only challenges the sufficiency of the State’s evidence, Mr. Hirbawi cannot

challenge the fact finder’s rejection of his mistake of fact defense on the basis of insufficiency of

the evidence. See id., citing State v. Campbell, 10th Dist. No. 07AP-1001, 2008-Ohio-4831, ¶

21, citing State v. Cooper, 170 Ohio App.3d 418, 2007-Ohio-1186, ¶ 15 (4th Dist.) (“An
                                                 5


affirmative defense does not negate the legal adequacy of the state’s proof for purposes of

submitting it to the jury.”). Nevertheless, after a review of the record, this Court determines that

the State presented sufficient evidence, if believed, that Mr. Hirbawi knowingly trafficked and

possessed illegal drugs.

       {¶13} Detective Jacob Morris of the Lorain Police Department testified that he began an

investigation into 611 Market in October of 2014 following allegations that the store had been

purchasing stolen property. In 2015, the police conducted several controlled sales of purportedly

stolen merchandise by a confidential informant to 611 Market. In later executing a search

warrant at the store on June 3, 2015, Detective Morris testified that the police discovered a large

bag containing a vegetable-like matter⸺believed to be illegal “spice”⸺near a cigar box

containing all twenty-dollar bills in a cubbyhole underneath an out-of-use, dusty, deli counter,

located away from the store’s cash register, in the opposite corner of the room. The detective

testified that they also found a bag containing several empty Ziploc bags as well as several

opened, empty, manufacturer packages of spice on top of an out-of-use, stand up cooler in an

adjacent storage room, the top of which could only be seen if using a stepstool ladder. He

testified that these items were all in an “out-of-view area[,]” unlike the regular merchandise for

sale and on display in the store. Detective Morris testified that Mr. Hirbawi admitted the spice

was his, admitted to repackaging and selling it for $20.00 per bag, and said he was “just trying to

make some money.” Mr. Hirbawi told the detective he would retrieve the spice from the back of

the store and ring it up at the cash register under a generic term, such as “taxable grocery” or

“taxable item.” The detective testified that Mr. Hirbawi could not produce any order forms, bills

of sale, or anything to trace the legitimacy of his spice purchases, but instead claimed he would

go to a website and “[buy] it off a guy who he contacted when he needed some.”
                                                6


       {¶14} Detective Todd Straub of the Elyria Police Department testified that, in July of

2015, he began an unrelated investigation following seven-to-ten overdoses from spice over the

Fourth of July weekend, which included several juveniles. He testified that his investigation led

to two different stores as the source of the spice, including 611 Market. The police conducted a

controlled buy, in which a wired confidential informant bought two packs of spice for $40.00

from Mr. Hirbawi inside of 611 Market. Detective Straub testified that the video recording of

the buy from the wired informant reveals a “discreet” hand-to-hand transaction, i.e., a quick

exchange back and forth that was not made at the front counter or cash register. The detective

testified that, in his experience, this indicated Mr. Hirbawi was not selling spice out in the open

and did not want other customers knowing he was selling “[s]pice or synthetic marijuana or

something that could potentially be illegal.”

       {¶15} Elyria police executed a search warrant at 611 Market on July 14, 2015.

Detective Straub testified that, underneath the front counter, they discovered a cigar box

containing several baggies of vegetable matter suspected to be synthetic marijuana. Right behind

the doorway to the back storage room, police found a digital scale on a table in plain view.

Inside a drawer near the scale, they found some spice packaging. In another back room, they

found multiple bags containing large amounts of the same packaging material. Above a drop

ceiling tile, they found a two-gallon “foil Ziploc bag” containing more green, vegetable matter.

Inside of a first-aid kit hanging on the wall, they found more vegetable matter along with some

cash. They also found a bottle of acetone on the floor in a back room, which Detective Straub

testified is commonly used in the processing and manufacturing of spice.

       {¶16} According to the detective, the location of all of the aforementioned items in

comparison to the items for sale in plain view for normal consumer sales indicated that the
                                                 7


sellers of the spice “didn’t want everyday or every customer to come in there and see it, be able

to purchase it because they were aware that it was most likely not legal.” Detective Straub

learned from an employee of 611 Market⸺who was indicted separately, but whose cases were

tried jointly with Mr. Hirbawi’s cases⸺that spice was sold and restocked daily at the store.

       {¶17} Elizabeth Doyle, a forensic drug analyst in the Lorain County Crime and Drug

Lab, testified that, in July of 2015, she performed lab testing on the “vegetable matter substance”

she received from the police. She determined, to a reasonable degree of scientific certainty, that

the substance tested positive for AB-CHMINACA, and likewise recorded her findings in her

written lab report. She testified that the Drug Enforcement Agency has listed AB-CHMINACA

as a Schedule I controlled substance. According to Ms. Doyle, “[i]t was placed in temporary

Schedule I in December of 2014 and permanent Schedule I in January of 2015.” See 21 C.F.R.

1308.11(d)(69).

       {¶18} After viewing the evidence in a light most favorable to the prosecution, this Court

concludes that the State presented sufficient evidence, if believed, to establish that Mr. Hirbawi

knowingly trafficked and possessed illegal drugs, rather than a substance he believed to be legal.

See State v. Jackson, 9th Dist. Summit Nos. 27132, 27200, 27133, and 27158, 2015-Ohio-5246,

¶ 125. The trial court, as trier of fact, could reasonably infer Mr. Hirbawi’s state of mind from

the surrounding circumstances in this case. The drugs were neither on display for the general

public to see nor kept solely behind the front counter like other commonly stolen items, but were

instead completely hidden from sight in various places throughout the store, e.g., in a cubbyhole

under an unused deli counter in the back of the store, in back storage rooms, inside a first-aid kit

hanging on the wall, and above drop ceiling tiles. See id. (noting the location of the drugs in a

back room, not on display for the general public). One could also draw conclusions about Mr.
                                                 8


Hirbawi’s culpability based on the fact that he claimed to ring up his sales of spice at the cash

register as a generic “taxable grocery” or “taxable item.” See id. (noting the store’s cash register

had a button labeled “Joy” for sales of that particular drug, which would instead ring up as the

sale of a t-shirt). Accordingly, based on our review of the record and the evidence presented at

trial, we conclude that a rational trier of fact could have reasonably determined the knowingly

mens rea of both trafficking and possession of illegal drugs was proven beyond a reasonable

doubt. See Jenks at paragraph two of the syllabus.

       {¶19} Mr. Hirbawi’s first assignment of error is overruled.

                              ASSIGNMENT OF ERROR TWO

       APPELLANT’S CONVICTION WAS AGAINST THE MANIFEST WEIGHT
       OF THE EVIDENCE.

       {¶20} In his second assignment of error, Mr. Hirbawi argues that his convictions for

trafficking and possession of drugs were against the manifest weight of the evidence because the

evidence presented at trial “weighs heavily in favor of the fact that [he] did not know the

substance he possessed and sold at his store was illegal.” We disagree.

       {¶21} This Court has stated:

       In determining whether a criminal conviction is against the manifest weight of the
       evidence, an appellate court must review 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 trier of fact 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). “[W]hen reversing a conviction on the

basis that it was against the manifest weight of the evidence, an appellate court sits as a

‘thirteenth juror,’ and disagrees with the factfinder’s resolution of the conflicting testimony.”

State v. Tucker, 9th Dist. Medina No. 06CA0035-M, 2006-Ohio-6914, ¶ 5. This discretionary
                                               9


power “should be exercised only in the exceptional case in which the evidence weighs heavily

against the conviction.” State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting State v.

Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). See also Otten at 340.

       {¶22} Mr. Hirbawi took the witness stand in his own defense and admitted to selling

spice at 611 Market. Although he told the police he bought the spice online from a guy he would

contact when he needed some, Mr. Hirbawi testified at trial that a Chicago salesman who would

sell him incense and “all potpourri types of stuff” sold him the spice. According to Mr. Hirbawi,

the salesman assured him it was one hundred percent legal. Mr. Hirbawi testified that he read

the spice packages and recalled seeing “not for human consumption” on the label. He could not

recall the salesman’s name and could not provide any contact information for him, but testified

that he simply called the man “Buddy.” He testified that, at one point, Buddy told him the spice

he currently had in the store was no longer legal, so Buddy exchanged the older spice for newer,

legal spice. Mr. Hirbawi recalled a similar situation occurring with Four Loko, a drink he would

sell in his store until it was “outlawed” and the salesman came back to take it all off of the

shelves. On cross-examination, he admitted that the Four Loko he had for sale in his store was

never hidden above any drop ceiling tiles. Mr. Hirbawi further explained that he kept spice

hidden in the deli counter because “[i]t’s stuff that people would want to steal * * *.” He

testified that he would mix or cut the spice with oregano to “make some extra money.” He

would then bring however many packets of spice he believed he would sell that day to the front

counter and keep them on a shelf underneath the counter, near 5-hour Energy drinks and

electronic cigarettes, which were products commonly stolen when on display.

       {¶23} Mr. Hirbawi also directs us to testimony from both detectives and the forensic

drug analyst that they were unable to tell the difference between legal spice and illegal spice
                                               10


simply by its appearance. As we outlined in our sufficiency discussion above, however, there

was a wealth of circumstantial evidence tending to show that Mr. Hirbawi acted with the

requisite degree of culpability. See Jackson at ¶ 134. The detectives both testified as to their

suspicions the drug was illegal based on the totality of the circumstances. The spice was not

simply for sale behind the front counter as a theft deterrent, but was instead hidden throughout

the store. Mr. Hirbawi could not produce any documentation for his purchases of spice, nor

could he provide any contact information for the mysterious salesman who supplied him with the

spice. A confidential informant conducted a discreet hand-to-hand purchase of spice from Mr.

Hirbawi, and Mr. Hirbawi admitted that he would ring up his sales of spice only as a “taxable

grocery” or “taxable item.”

       {¶24} “[Synthetic cannabinoids] are marketed under hundreds of different brand names,

including ‘Spice[]’ * * *.” 80 Fed.Reg. 5042-01, 5043, effective Jan. 30, 2015 (adding AB-

CHMINACA to the schedule of controlled substances). Mr. Hirbawi admitted he purchased the

spice from an unknown incense/potpourri salesman from Chicago, and noted the label on the

packages read: “[N]ot for human consumption.” However, “[t]he drug products laced with

[synthetic cannabinoids] are often sold under the guise of ‘herbal incense,’ ‘potpourri,’ etc.,

using various product names and routinely labeled ‘not for human consumption.’” Id. These

products “are marketed as a ‘legal high’ or ‘legal alternative to marijuana’ and are readily

available over the Internet, in head shops, and in convenience stores.” Id. “There is an incorrect

assumption that these products are safe and further, that mislabeling these products as ‘not for

human consumption’ is a legal defense to criminal prosecution.” Id.

       {¶25} While Mr. Hirbawi testified that he believed his spice was of the legal variety, this

Court has stated that “‘[a] conviction may be upheld even when the evidence is susceptible to
                                               11


some possible, plausible, or even reasonable, theory of innocence.’” State v. Russo, 9th Dist.

Summit No. 22768, 2006-Ohio-2172, ¶ 27, quoting State v. Cremeans, 9th Dist. Summit No.

22009, 2005-Ohio-261, ¶ 7. We have consistently held that “‘the weight to be given the

evidence and the credibility of the witnesses are primarily for the trier of the facts.’” State v.

Haydon, 9th Dist. Summit No. 27737, 2016-Ohio-4683, ¶ 28, quoting State v. DeHass, 10 Ohio

St.2d 230 (1967), paragraph one of the syllabus. The trial court was best able to view the

witnesses and observe their demeanor, gestures, and voice inflections, and use those observations

in weighing the credibility of the proffered testimony. See State v. Cook, 9th Dist. Summit No.

21185, 2003-Ohio-727, ¶ 30. The trial court in this matter chose to believe that Mr. Hirbawi was

knowingly trafficking and possessing illegal spice. This Court has consistently held that “[w]e

will not overturn a conviction as being against the manifest weight of the evidence simply

because the trier of fact chose to believe the State’s version of events over another version.”

State v. Fry, 9th Dist. Medina No. 16CA0057-M, 2017-Ohio-9077, ¶ 13.

       {¶26} Accordingly, upon review of the record, weighing the evidence and all reasonable

inferences, and considering the credibility of witnesses, we cannot say that the trial court, as

finder of fact, in resolving any conflicts in the evidence, clearly lost its way and created a

manifest miscarriage of justice. See Otten at 340. Mr. Hirbawi has also not demonstrated how

this is an exceptional case where the evidence presented weighs heavily in his favor and against

conviction. See Thompkins at 387.

       {¶27} Mr. Hirbawi’s second assignment of error is overruled.

                                               III.

       {¶28} Mr. Hirbawi’s first and second assignments of error are overruled. The judgment

of the Lorain County Court of Common Pleas is affirmed.
                                                12


                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     THOMAS A. TEODOSIO
                                                     FOR THE COURT



CARR, J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

MICHAEL STEPANIK, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and DANIELLELA BEARDEN, Assistant
Prosecuting Attorney, for Appellee.
