[Cite as State v. Tate, 2016-Ohio-7149.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                           LAKE COUNTY, OHIO


STATE OF OHIO,                                      :      OPINION

                 Plaintiff-Appellee,                :
                                                           CASE NO. 2015-L-120
        - vs -                                      :

DAVID L. TATE,                                      :

                 Defendant-Appellant.               :


Criminal Appeal from the Lake County Court of Common Pleas, Case No. 15 CR
000085.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor, Karen A. Sheppert and Teri R. Daniel,
Assistant Prosecutors, Lake County Administration Building, 105 Main Street, P.O. Box
490, Painesville, OH 44077 (For Plaintiff-Appellee).

David L. Tate, pro se, PID: A673-337, Lake Erie Correctional Institution, P.O. Box
8000, 501 Thompson Road, Conneaut, OH 44030. (Defendant-Appellant).



CYNTHIA WESTCOTT RICE, P.J.

        {¶1}     Appellant, David L. Tate, appeals from the judgment of the Lake County

Court of Common Pleas, convicting him on two counts of trafficking in heroin, third- and

fourth-degree felonies, in violation of R.C. 2925.03(A)(1). We affirm.

        {¶2}     This matter arose from a narcotics investigation of which appellant was

the target. Two controlled buys of heroin took place in Mentor, Ohio, one on November
11, 2014 and one on December 16, 2014.          Both buys were made by confidential

informant, S.B.

      {¶3}   In the fall of 2014, S.B. and a friend were stopped by law enforcement in

Cleveland, Ohio after purchasing heroin. In order to avoid potential criminal charges,

S.B. agreed to become a confidential informant. Cleveland detective, Bob Sauterer,

contacted Detective Dennis Collins, of the Mentor Police Department, and mentioned a

dealer named David Tate who lived in Mentor, Ohio.         Detective Collins obtained a

photograph of appellant. Later, S.B. confirmed the photo was a dealer who used the

alias “Fresh.” S.B. stated she had known “Fresh” for two years and he sold heroin in

Mentor.

      {¶4}   Prior to the first controlled buy, S.B. contacted appellant and set up a time

and location for the purchase. This call was not monitored. Once appellant agreed, she

again phoned him to confirm the time, location, amount of heroin, as well as the cost.

This conversation was recorded.     She stated she wanted “two” for $280; appellant

replied he would give her a little more for an “even three.” They agreed to meet in 20

minutes at the designated location, a residence on 5645 Hillcrest Avenue, Mentor Ohio.

      {¶5}   Prior to the deal, S.B.’s person and vehicle were searched. She ultimately

drove herself to the residence while Mentor Police Department officers situated

themselves in the surrounding area. Detective Collins with another officer observed the

Hillcrest home from a distance and, shortly after S.B. arrived, they observed appellant

arrive at the home in a black Kia Soul. The officers photographed the vehicle, but were

unable to see anything after it entered the driveway due to various obstructions. They

later determined that appellant was not the owner of the Kia.




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      {¶6}     S.B. stated appellant exited the Kia and entered her vehicle. He removed

a piece of paper from her glove compartment, wrapped it around the heroin and

exchanged the drug for the $300. As he exited the vehicle, S.B. is heard saying “Bye

Freshy Fresh.” Appellant did not respond and exited the vehicle. S.B. then returned to

the station, officers recovered the recording device and the heroin; a subsequent search

of her person and vehicle revealed no other contraband.

      {¶7}     S.B. later set up a second controlled buy on December 16, 2014 for one

gram of heroin in exchange for $140.    During the call, which was recorded, S.B. refers

to appellant as “Fresh” in the course of negotiating where the purchase will occur. They

ultimately agree to meet at the Hillcrest residence. Prior to initiating controlled buy,

S.B.’s person and vehicle were again searched; she was given a digital recorder with a

wireless microphone and $140 in marked bills.

      {¶8}     Upon her arrival at the Hillcrest address, S.B. observed several unnamed

men standing outside. Appellant arrived shortly thereafter driving a Hyundai Sonata, his

personal vehicle. Officers again were positioned near the residence and observed the

vehicle as it passed them. Appellant entered the driveway and walked to S.B.’s driver-

side window. During the exchange, S.B. referred to appellant as “Fresh.” Appellant,

however, did not acknowledge the statement. After the deal took place, S.B. returned to

the Mentor police station, where she turned over the recording device and the heroin. A

search of her person and vehicle revealed no additional contraband.

      {¶9}     After the second controlled buy, Detective Sergeant Richard Slovenkay

and his partner followed appellant to a KFC restaurant. Appellant exited the vehicle and

went inside.    The officers observed appellant continuously glancing around in all




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directions.   Detective Sergeant Slovenkay characterized this behavior as a form of

“counter surveillance,” i.e., appellant was attempting to determine whether anyone had

followed him. Appellant subsequently left the restaurant.

         {¶10} The next day, Officer Don Swindell observed a silver Hyundai Sonata

while on routine patrol, which matched the vehicle description in a recent advisory

bulletin issued by the Mentor Police Department relating to appellant. Officer Swindell

initiated a traffic stop. A canine search of the vehicle was performed but did not yield a

positive alert. The officer’s dashboard camera photographed the vehicle and its license

plate.

         {¶11} Based upon the controlled buys, appellant was indicted on two counts of

trafficking in heroin, third- and fourth-degree felonies, in violation of R.C. 2925.03(A)(1).

He entered pleas of “not guilty” at his arraignment. The matter proceeded to jury trial

after which appellant was found guilty on both counts. The trial court sentenced him to

consecutive prison terms of 30 and 15 months, for an aggregate term of 45 months

imprisonment. This appeal follows.

         {¶12} Appellant asserts the following as his sole assignment of error:

         {¶13} “A.D. conviction was not supported pursuant to Jackson v. Virginia, 443

U.S. 307, 99 S.Ct. 2788.61 [sic.]”

         {¶14} Under his sole assignment of error, appellant appears to assert the state

failed to produce sufficient evidence to support his conviction beyond a reasonable

doubt. We conclude the conviction was supported by sufficient, credible evidence.

         {¶15} A “sufficiency” argument raises a question of law as to whether the

prosecution offered some evidence concerning each element of the charged offense.




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State v. Windle, 11th Dist. Lake No. 2010-L-0033, 2011-Ohio-4171, ¶25. “[T]he proper

inquiry is, after viewing the evidence most favorably to the prosecution, whether the jury

could have found the essential elements of the crime proven beyond a reasonable

doubt.” State v. Troisi, 179 Ohio App.3d 326, 2008-Ohio-6062, ¶9 (11th Dist.).

       {¶16} When considering a challenge to the weight of the evidence, this court sits

as a “thirteenth juror,” weighing the evidence, considering the credibility of testimony,

and evaluating whether the jury lost its way such that a manifest injustice occurred. See

e.g. State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). Although this analysis

requires an appellate court to consider whether the state met its burden of persuasion,

where evidence is susceptible to more than one interpretation, a reviewing court must

defer to the jury’s findings. Warren v. Simpson, 11th Dist Trumbull. No. 98-T-0183, 2000

Ohio App. LEXIS 1073, (Mar. 17, 2000), see also State v. DeHass, 10 Ohio St.2d 230,

227 N.E.2d 212 paragraph one of the syllabus (1967) (the jury is in the best position to

assess the credibility of witnesses). In effect, “[t]he discretionary power to grant a new

trial should be exercised only in the exceptional case in which the evidence weighs

heavily against the conviction.” Martin, supra, at 175.

       {¶17} It is well settled that circumstantial evidence and direct evidence possess

the same probative values. State v. Jenks, 61 Ohio St.3d 259, 272 (1991). Thus, proof

beyond a reasonable doubt may be established by circumstantial evidence, direct

evidence, or a combination of each. Id.

       {¶18} Under his sole assignment of error, appellant makes various obscure

allegations to support his position that there was insufficient, persuasive evidence to

find him guilty.




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       {¶19} First, he alleges the jury was “dead locked” in its deliberations prior to

returning a verdict of guilty. It is unclear how the jury’s status during deliberations has

any effect on the quality or quantity of the evidence produced by the state. Appellant’s

observation regarding the jury has no impact upon the evidence produced by the state.

       {¶20} Next, appellant contends his conviction is suspect because Detective

Collins only obtained a “fairly” good look at appellant prior to one of the buys. Although

the detective could not independently confirm appellant was the dealer, S.B., the

confidential informant, identified appellant with certainty. And even though S.B. was the

only eye witness to testify that appellant was the dealer, the surrounding circumstances

of the purchases demonstrate her testimony was credible.

       {¶21} First, Detective Collins testified that when he was contacted regarding the

use of S.B. as a confidential informant, the Cleveland officer provided him with both

appellant’s name and a photograph. When Detective Collins showed S.B. the photo,

she positively identified appellant as “Fresh.”

       {¶22} Moreover, S.B. testified that she has known appellant approximately two

years and identified him in open court as the individual who sold her the heroin during

the two controlled buys.       S.B. further testified she referred to him as “Fresh” or “Freshy

Fresh” throughout their acquaintanceship.              And during the audio recordings of the

November and December the controlled heroin buys, S.B. can be heard referring to the

dealer as “Fresh” or “Freshy Fresh.”1 S.B. testified she had been in his presence 20 or


1. Even though the dealer in the controlled buys never verbally acknowledges the name “Fresh,” the
dealer’s failure to acknowledge the name “Fresh” is of little consequence. It is not uncommon for a
person to be non-responsive to the use of one’s name or nickname in the course of a face-to-face
meeting. This may be especially so in the course of a would-be clandestine drug deal. And, in any event,
the dealer’s silence, under the circumstances, could be reasonably viewed as a simple acquiescence to
that name.



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30 times and spoke with him on the phone frequently.         And she testified appellant

drove a Hyundai Sonata and she commonly saw him at 5645 Hillcrest, Mentor Ohio, the

residence where he regularly sold heroin.

       {¶23} Furthermore, it is undisputed that appellant arrived at 5645 Hillcrest, a

residence out of which heroin was trafficked, immediately after S.B. for each drug deal,

and left shortly after she departed. While this does not provide direct evidence that

appellant was the dealer, the jury could reasonably infer his presence at the location

and the limited time he remained at the residence, provided additional circumstantial

evidence of participation in the transaction.

       {¶24} Moreover, Detective Brian Butler of the County Sheriff’s Office testified

that Lake County Jail inmates have the opportunity to provide a name identifying

themselves to those they call outside the jail. The recording is connected with the

inmate’s unique personal identification number (“PIN”) to which he or she is assigned

during the booking process. The recording associated with appellant’s PIN appeared to

identify him as “Fresh.” The recording was played twice to the jury.

       {¶25} We acknowledge that S.B. may have had a self-serving motivation for

assisting police and the prosecution; indeed, S.B. acknowledged she agreed to become

a confidential informant because she was stopped in Cleveland after she and her

roommate had purchased heroin. And Detective Dennis Collins testified that individuals

who agree to work with police as confidential informants do so to avoid potential

criminal charges. The jury was therefore fully aware of the circumstances surrounding

S.B.’s role as a confidential informant and was in the best position to evaluate her

testimony in light of her potential stake in the case.




                                                7
       {¶26} Appellant next asserts the evidence does not support his conviction

because his DNA was not found on the evidence. Dr. Stephen LaBonne testified that

he tested paper in which the heroin was wrapped during the transactions for touch DNA.

The doctor testified that touch testing involves an attempt to detect skin cells transferred

to an object. He further testified that he identified three contributors, one major, a

woman, and two minor, both men. Dr. LaBonne testified he was not able to include

appellant as a contributor of the more abundant of the two minor contributors, but

asserted this does not mean appellant did not touch the paper. The doctor simply

stated appellant may not have touched the paper, or he may have touched it and left too

little DNA to be detected. Simply because appellant could not be positively identified

does not undermine the state’s theory of the case.

       {¶27} Appellant next contends that Detective Collins testified that his supervisor,

Detective Sergeant Slovenkay, inspected the substance purchased during one of the

controlled buys and initialed the evidence on December 15, 2014. He asserts that if the

Detective Sergeant Slovenkay did so, it would have been impossible for appellant to

have purchased the same on December 16, 2014.               A review of the proceedings

demonstrates, however, that the evidence initialed on December 15, 2014 was the

heroin purchased on November 11, 2014.           Accordingly, we perceive no temporal

irregularity in the manner the evidence was processed or the dates on which appellant

was alleged to have sold S.B. the contraband.

       {¶28} Given the evidence adduced at trial, we conclude there was sufficient,

credible evidence to sustain appellant’s convictions. We therefore hold the jury’s verdict

is consistent with the manifest weight of the evidence.




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      {¶29} Appellant’s sole assignment of error is without merit.

      {¶30} For the reasons discussed in this opinion, the judgment of the Lake

County Court of Common Pleas is affirmed.



THOMAS R. WRIGHT, J.,

COLLEEN MARY O’TOOLE, J.,

concur.




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