[Cite as State v. Makin, 2017-Ohio-2649.]



                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 104010




                                      STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                   HAKEEN K. MAKIN
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-15-594103-A

        BEFORE: Laster Mays, J., Keough, A.J., and Blackmon, J.

        RELEASED AND JOURNALIZED:                    May 4, 2017
                               -i-
ATTORNEY FOR APPELLANT

Richard Agopian
1415 West Ninth Street, 2nd Floor
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

By:   Marc Bullard
      Jennifer King
Assistant Prosecuting Attorney
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ANITA LASTER MAYS, J.:

      {¶1} Defendant-appellant, Hakeen K. Makin (“Makin”), appeals his jury trial

conviction and sentence on multiple drug related counts.   We affirm the trial court’s

decision.

I.    BACKGROUND AND FACTS

      {¶2} On March 13, 2015, a 28-count indictment was issued:

Statute                   Description               Disposition
2925.03.A(1)              Trafficking Offense             Guilty - Jury
2925.03.A(2)              Trafficking Offense             Guilty - Jury
2925.11.A                 Drug Possession                 Guilty - Jury
2925.03.A(1)              Trafficking Offense             Guilty - Jury
2925.03.A(2)              Trafficking Offense             Guilty - Jury
2925.11.A                 Drug Possession                 Guilty - Jury
2925.03.A(1)              Trafficking Offense             Guilty - Jury
2925.03.A(2)              Trafficking Offense             Guilty - Jury
2925.11.A                 Drug Possession                 Guilty - Jury
2925.03.A(1)              Trafficking Offense             Guilty - Jury
2925.03.A(2)              Trafficking Offense             Guilty - Jury
2925.11.A                 Drug Possession                 Guilty - Jury
2925.03.A(2)              Trafficking Offense             Guilty - Jury
2925.11.A                 Drug Possession                 Guilty - Jury/Rule 29
2925.03.A(1)              Trafficking Offense             Guilty - Jury
2925.03.A(2)              Trafficking Offense             Guilty - Jury
2925.11.A                 Drug Possession                 Guilty - Jury
2925.03.A(1)              Trafficking Offense             Guilty - Jury
2925.03.A(2)              Trafficking Offense             Guilty - Jury
2925.11.A                 Drug Possession                 Guilty - Jury
2925.03.A(1)              Trafficking Offense             Guilty - Jury
2925.03.A(2)              Trafficking Offense             Guilty - Jury
2925.11.A                 Drug Possession                 Guilty - Jury
2925.03.A(1)              Trafficking Offense             Guilty - Jury
2925.03.A(2)              Trafficking Offense             Guilty - Jury
2925.11.A                    Drug Possession                    Guilty - Jury
2925.03.A(2)                 Trafficking Offense                Guilty - Jury
2925.11.A                    Drug Possession                    Guilty - Jury/Rule 29

       {¶3} The indictments resulted from a series of controlled drug buys, occurring on

March 19, 2014 (Counts 1, 2, and 3, 26.4 grams cocaine); April 14, 2014 (Counts 4, 5,

and 6, 27.6 grams cocaine); June 10, 2014 (Counts 7, 8, and 9, 56.8 grams cocaine); and

June 20, 2014 (Counts 10, 11, and 12, 70.4 grams cocaine). Counts 13 and 14 are

aggregate for the prior transactions.    Counts 15, 16, and 17 relate to a fifth controlled

buy that took place on July 8, 2014, involving 11.9 grams of heroin. Counts 18, 19, and

20 arise from a July 15, 2014 controlled buy involving 12 grams of heroin. Counts 21,

22, and 23 arise from a July 22, 2014 controlled buy involving 27.6 grams of heroin.

Counts 24, 25, and 26 arise from an August 14, 2014 controlled buy involving 27.7 grams

of heroin. Counts 27 and 28 are the aggregate counts for July 8, 2014, through August 14,

2014, including major drug offender specifications (“MDOs”) under R.C. 2941.1410(A).

       {¶4} Codefendant and ex-girlfriend Tiffany Harmon (“Harmon”) was charged in

complicity with Count 1 and agreed to testify in exchange for a plea agreement.          The

jury trial was held in December 2015.      The trial court retained jurisdiction to determine

the MDOs after the jury’s verdict.      Codefendant Derek I. Woods (“Woods”) was found

not guilty of all charges.

       {¶5}    Special agent Kirk Johns, Task Force Officers Luke Combs, and Michael

Gardner were involved in the drug buys and testified regarding Makin’s activities. The
state drug task force utilized a confidential “reliable” informant (“CI”) to effect the

transactions.

       {¶6}     The CI would contact Makin and arrange the transaction.    The money was

copied prior to use in the transaction and then given to the CI, the state conducted a

“cursory search” of the CI and the CI’s vehicle prior to the meeting. The task force agent

trailed the CI to the meeting place where the event was recorded by audio, and/or video,

and/or photographed.     After the purchase, the CI met the task force agent to turn over

the drugs, and another “cursory” search of the CI and the CI’s vehicle was conducted.

Harmon testified to participating in the first buy with Makin and the CI and that she

completed the sale at Makin’s direction.

       {¶7}     The CI was recruited for assistance in 2014 after the CI’s sale of drugs to

task force members.     The CI told the task force that Makin was the CI’s drug supplier.

The CI would purchase, cut, and resell the drugs.    An agreement was executed by the CI

containing the terms and conditions of his CI status. Trial testimony included a detailed

description of each controlled buy transaction.

       {¶8}      Counts 14, 28, and the schoolyard specifications for Counts 15 and 16

were dismissed pursuant to Crim.R. 29. The jury found Makin guilty of the remaining

offenses. Makin was sentenced on the major drug specification to 11 years at the Lorain

Correctional Institution.    He was also advised of postrelease control.      This appeal

ensued.

II.    ASSIGNMENTS OF ERROR
       {¶9}     Makin presents 12 assignments of error.       Each error is recited below,

preceding the applicable legal analysis.

       I.      The appellant was denied his right to a jury trial guaranteed by the
               Sixth and Fourteenth Amendments to the U.S. Constitution in
               determining the MDO Specification.

       {¶10}      Trafficking or possession of more than 100 grams of cocaine is an

MDO. R.C. 2925.11(C)(4)(g) and 2925.11(C)(4)(f). According to R.C. 2941.1410(B),

the trial court is required to determine the MDO specification.          As we previously

recognized, “[t]his appears to be inconsistent with the principle that elements necessary

for a penalty enhancement must be found by the        trier of fact, not the court.” State v.

Dues, 2014-Ohio-5276, 24 N.E.3d 751, ¶ 49 (8th Dist.), citing State v. Fort, 8th Dist.

Cuyahoga No. 100346, 2014-Ohio-3412, 17 N.E.3d 1172, ¶ 28, and Alleyne v. United

States, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). However, as was the case in Dues, we

are not required to make a determination on that issue as the jury determined in Count 13

that the aggregate amount of cocaine exceeded 100 grams. Dues at ¶ 50.

       {¶11}     The first assigned error is overruled.

       II.     The appellant was denied due process of law and effective assistance
               of counsel when the trial court refused to order the state to provide
               an agreement with its key witness until the day of trial.

       III.    The appellant was denied due process of law, a fair trial, and
               effective assistance of counsel because the court did not order
               disclosure of an informant’s identity.

       {¶12}     The second and third assigned errors are combined for purposes of

judicial economy. We review the errors for an abuse of discretion, an indication that the
trial court’s decision is unreasonable, unconscionable, or arbitrary. State v. Jackson, 8th

Dist. Cuyahoga No. 93699, 2010-Ohio-3723, ¶ 7, citing State v. Bays, 87 Ohio St.3d 15,

1999-Ohio-216, 716 N.E.2d 1126, and Blakemore v. Blakemore, 5 Ohio St.3d 217, 219,

450 N.E.2d 114 (1983).

       {¶13}    In May 2015, the state filed a Crim.R. 16(D) certification to maintain the

confidentiality of the CI. Crim.R. 16(D) requires that the state establish one or more of

the following elements:

       (1)     The prosecuting attorney has reasonable, articulable grounds to
       believe that disclosure will compromise the safety of a witness, victim, or
       third party, or subject them to intimidation or coercion;

       (2)    The prosecuting attorney has reasonable, articulable grounds to
       believe that disclosure will subject a witness, victim, or third party to a
       substantial risk of serious economic harm;

       (3) Disclosure will compromise an ongoing criminal investigation or a
       confidential law enforcement technique or investigation regardless of
       whether that investigation involves the pending case or the defendant;

       (4) The statement is of a child victim of sexually oriented offense under
       the age of thirteen; and

       (5)     The interests of justice require non-disclosure.

Crim.R. 16(D)(1)-(5).

       {¶14}    On November 3, 2015, the trial court entertained the Crim.R. 16(D)

discussion on the record.    The state sought to certify the CI’s name, address, recordings,

and or other reports that would lead to the CI’s identity.   The state also informed defense

counsel that it would make the information available for defense counsel’s viewing only,
in the event the state elected to use any of the information at trial.    The state expressed

concern that the disclosure would subject the CI to risk of harm by third parties possibly

at Makin’s request.

        {¶15} The state also informed the court that, during the period of time that Makin

was at large, Makin and a family member threatened “to hunt down the informant.”           (Tr.

65.)    The trial court responded that the information indicated Makin already knew the

CI’s identity.      The state said, “[h]e may have his ideas, he may not, maybe or maybe

not.”   (Tr. 65.)     However, the state indicated Makin would know for certain the identify

of the CI if the information was revealed. The state further justified its position by

describing Makin’s escape attempts when tracked down and arrested.

        {¶16}       Defense counsel countered that the state failed to state reasonable,

articulable grounds to support their motion, and that the state’s emphasis on the statement

of an unknown third party to the CI that Makin and his son said they were going to hunt

down “the informant” is not directly attributable to Makin. The state also failed to

establish additional Civ.R. 16(D) elements such as economic harm, ongoing

investigations, or interest of justice.    The court granted the certification based on the

alleged threat of harm to the CI, the “extreme measures” taken by Makin during his

attempt to evade arrest, and the fact that Makin had access to large amounts of funds.

        {¶17}       Defense counsel also argued that the consideration provided to the CI for

participating in the buys had not been revealed.     The state replied that it sent a request to

a detective “in an effort to identify the deal” and inquired about the existence of any
“exculpatory information,” and that the state had just sent a response to the defense’s

request via the “portal.”

       {¶18}     The state then orally revealed some of the consideration involved,

explaining that the consideration information was being revealed in a way that prevented

identification of the CI.    The state asserts on appellate review that it delivered the

information on October 15, 2015, four weeks before the trial.

       {¶19}     Prosecutors are prohibited from concealing favorable evidence from the

defense, however, “‘[t]here is no general constitutional right to discovery in a criminal

case.’” State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 60,

quoting Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977).

It is further wholly within a trial court’s discretion to delay “‘disclosure of a prospective

witness’s identity in order to protect his or her safety.’”      Id., quoting, Alvarado v.

Superior Court, 23 Cal.4th 1121, 1150, 99 Cal.Rptr.2d 149, 5 P.3d 203 (Cal.2000).

       {¶20}     Each of the controlled buys were observed by the agents. Jackson, 8th

Dist. Cuyahoga No. 93699, 2010-Ohio 3723, at ¶ 9. Further, the CI actually testified in

this case.   We do not find any error or prejudice to Makin.

       {¶21}    To prevail on the ineffective assistance of counsel claim, Makin must

demonstrate that counsel was deficient in some aspect of his representation, and there is a

reasonable probability that, were it not for counsel’s errors, the result of the trial would

have been different. Dues, 2014-Ohio-5276, 24 N.E.3d 751, at ¶ 55, citing Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).                “‘Counsel’s
performance will not be deemed ineffective unless and until the performance is proven to

have fallen below an objective standard of reasonable representation and, in addition,

prejudice arises from counsel’s performance.’” Dues at ¶ 57, quoting State v. Iacona, 93

Ohio St.3d 83, 105, 752 N.E.2d 937 (2001). Thus, in light of our finding that the errors

are unsubstantiated errors, we do not find that counsel was ineffective.

         {¶22} The second and third assignments of error are overruled.

         IV.     The trial court erred by failing to give a correct accomplice
                 testimony jury instruction, R.C. 2923.03(D).

         {¶23}    Makin argues here that the trial court erred in failing to give the correct

accomplice testimony jury instruction relating to Harmon. The state correctly asserts that

Makin failed to make this argument before the trial court, restricting our analysis to plain

error.    State v. Steele, 138 Ohio St.3d 1, 2013-Ohio-2470, 3 N.E.3d 135, ¶ 29.

         “On appeal, a party may not assign as error the giving or the failure to give
         any instructions unless the party objects before the jury retires to consider
         its verdict, stating specifically the matter objected to and the grounds of the
         objection.” Crim.R. 30(A).

Dues at ¶ 40.

         {¶24}    R.C. 2923.03(D) sets forth the proper instruction:

         If an alleged accomplice of the defendant testifies against the defendant in a
         case in which the defendant is charged with complicity in the commission
         of or an attempt to commit an offense, an attempt to commit an offense, or
         an offense, the court, when it charges the jury, shall state substantially the
         following:

         “The testimony of an accomplice does not become inadmissible because of
         his complicity, moral turpitude, or self-interest, but the admitted or claimed
       complicity of a witness may affect his credibility and make his testimony
       subject to grave suspicion, and require that it be weighed with great caution.

       “It is for you, as jurors, in the light of all the facts presented to you from the
       witness stand, to evaluate such testimony and to determine its quality and
       worth or its lack of quality and worth.”

       {¶25}     After defining “accomplice” for the jury, the trial court informed them that

the weight and testimony to be given to Harmon’s testimony is up to the jury to determine

based on all of the facts and circumstances.       Addressing the statutory requirement, the

trial court stated:

       The testimony of an accomplice does not become inadmissible because of
       her complicity, moral turpitude, or self-interest, but the admitted or claimed
       complicity of a witness may affect her ability and make her testimony
       subject to grave suspicion and require that it be weighed with great caution.


       It is for you as jurors, in light of all the facts presented to you and from the
       witness stand, to evaluate such testimony and to determine its quality and
       worth or its lack of quality and worth.

(Emphasis added.)     Thus, the word “ability” was employed instead of “credibility.”

       {¶26}     R.C. 2923.03(D) requires that the trial court’s recitation of the instruction

“state substantially” the statutory instruction.   “Jury instructions are to be viewed as a

whole to determine whether they contain prejudicial error.” Dues, 2014-Ohio-5276, 24

N.E.3d 751, at ¶ 43-44. To demonstrate plain error, Makin must point to “an obvious

defect in a trial’s proceedings” that “affected substantial rights,” and “ affected the

outcome of the trial.” Id. at ¶ 40, citing Steele at ¶ 30.           In this case, the record

indicates that the word “ability” in the verbal instruction was properly stated as
“credibility” in the printed jury instruction provided to the jury. As a result, Makin was

not prejudiced by the misstatement during verbal jury instructions. Dues at ¶ 44.

       {¶27}     The fourth assigned error is without merit.

       V.      The trial court erred by failing to give a comprehensive instruction
               on informant testimony.

       VI.     The trial court erred by failing to instruct the jury that prior
               convictions could be used to evaluate the credibility of a witness.

       {¶28}    Makin’s failure to make this argument before the trial court bars all but

plain error.   Steele, 138 Ohio St.3d 1, 2013-Ohio-2470, 3 N.E.3d 135, at ¶ 29. “A trial

court’s decision on jury instructions is treated with deference, and an appellate court will

not reverse absent an abuse of discretion.” State v. Malone, 8th Dist. Cuyahoga No.

101305, 2015-Ohio-2150, ¶ 44.       The jury was aware of the CI’s criminal history and

benefits received for the testimony.

       {¶29} The trial court’s general instruction on witness credibility advised the jury to

consider a broad range of factors including:    candor and frankness, interest and bias the

witness may have in the outcome of the case, and all other facts and circumstances

surrounding the testimony that add or detract from a witness’s credibility.

       {¶30}    The trial court also reminded the jury that:

       [Y]ou are not required to believe testimony of any witness simply because I
       placed that witness under oath. You may believe or disbelieve all or any
       part of the testimony of a witness. So it’s within your province to
       determine what testimony is worthy of your belief and what testimony is not
       worthy of your belief.
       {¶31}     The CI testified at the trial, revealing the CI’s history of dealing drugs

and the cocaine sale to narcotics agents that led to becoming a CI.    The CI described the

terms of the agreement with the drug task force to serve as a CI in the current case and

then detailed the activities that took place prior to, during, and after each controlled drug

buy. The CI admitted that the motive behind the testimony was to get out of trouble,

that the narcotics agents provided input in the CI’s favor during the CI’s sentence in a

separate case, and that the CI had not yet been charged or sentenced for the initial sale of

cocaine to agents that led to his CI status.

       {¶32} The fact that a CI has received promises or benefits does not mean that the

testimony may not be believed.                 Malone, 8th Dist. Cuyahoga No. 101305,

2015-Ohio-2150, at ¶ 47, citing State v. Covington, 10th Dist. Franklin No. 06AP-826,

2007-Ohio-5008, ¶ 8. Further, as to both assigned errors, where the general instruction

adequately covers credibility, there is no need for a special comment or instruction.

State v. Group, 98 Ohio St.3d 248, 2002-Ohio-7247, 781 N.E.2d 980, ¶ 117.

       {¶33} Makin has not established prejudice, or that “but for” the trial court’s failure

to provide a confidential informant instruction, the outcome of the trial would have been

different. Steele, 138 Ohio St.3d 1, 2013-Ohio-2470, 3 N.E.3d 135, at ¶ 30.        The fifth

and sixth assigned errors are without merit.
       VII.    Prosecutorial misconduct during closing arguments deprived
               Makin of a fair trial in violation of his rights under the Fifth, Sixth,
               Eighth, and Fourteenth Amendments to the United States
               Constitution and the corresponding provisions of the Ohio
               Constitution.

       {¶34}       Makin offers that the prosecutor “denigrated” defense counsel by making

personal and derogatory remarks by stating that defense counsel’s arguments were

“laughable.”    We disagree.

       {¶35}       Due to the absence of objection before the trial court, we again review

for plain error.    State v. Slagle, 65 Ohio St.3d 597, 605 N.E.2d 916 (1992). While a

prosecutor is not permitted to express a personal opinion as to witness credibility,

defendant’s guilt, or otherwise refer to inadmissible evidence in support of an argument,

prosecutors have “wide latitude” in presenting a closing argument.          State v. Wiley, 8th

Dist. Cuyahoga No. 99576, 2014-Ohio-27, ¶ 60-61, citing State v. Lott, 51 Ohio St.3d

160, 165, 555 N.E.2d 293 (1990), quoting       State v. Stephens, 24 Ohio St.2d 76, 82, 263

N.E.2d 773 (1970).

       {¶36}        The remarks of a prosecutor constitute misconduct where they

“prejudicially affected substantial rights of the defendant.”    Wiley at     ¶ 58, citing State

v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 149, citing State v.

Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984). The barometer of this analysis “‘is

the fairness of the trial, not the culpability of the prosecutor.’”   Wiley at ¶ 58, quoting

Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982).
       {¶37}   “A prosecutor’s comments are not to be taken out of context and ‘given

their most damaging meaning.’”        Wiley at ¶ 61, citing State v. Williams, 8th Dist.

Cuyahoga No. 2012-Ohio-1741, ¶ 12, and          State v. Hill, 75 Ohio St.3d 195, 204, 661

N.E.2d 1068 (1996).

       {¶38}    Makin cites page 1,887 of the transcript for the conduct complained of;

however, the transcript contains fewer pages. A search of the transcript reveals the term at

page 1588 where the prosecutor used himself as an example of why a drug dealer was

used as a convincing confidential informant:

       STATE:         Do you think I can go and infiltrate all these drug trades?

                      I’ll just walk out there and go, Hey, Hakeem, let’s do this.
                      Let’s get some dope, get it on the table. Hold on, this is just a
                      cell phone, don’t pay any attention to it, I’m pointing it at
                      your face. These are their arguments. Laughable.

(Tr. 1588.)

       {¶39}   Makin has made no showing that the remarks of the prosecutor affected

the outcome of his trial. Wiley at ¶ 61.     His seventh assignment of error is overruled.

       VIII. The appellant was denied the effective assistance of counsel and was
             not afforded his constitutional right to counsel pursuant to the Sixth
             Amendment and due process and a fair trial pursuant to the Fifth and
             Fourteenth Amendments of the United States Constitution.

       {¶40}   This argument stems from defense counsel’s asserted failure to request the

jury instructions discussed under prior errors in this opinion, and to object to the

prosecutor’s improper comments. To prevail here, Makin must show that counsel’s

representation fell below “an objective standard of reasonable representation and, in
addition, prejudice arises from counsel’s performance.”        Dues, 2014-Ohio-5276, 24

N.E.3d 751, at ¶ 57, citing       Iacona, 93 Ohio St.3d at 105, 752 N.E.2d 937. Our

findings that Makin was not prejudiced by any of these asserted errors extinguishes this

argument.    The eighth assigned error lacks merit.

      IX.      The appellant’s convictions are against the weight of the evidence.

      X.       The evidence was insufficient to convict the defendant of drug possession
               and drug trafficking.

      {¶41}        Makin argues that his convictions are against the weight and sufficiency

of the evidence.    We combine the related ninth and tenth errors for response.

      {¶42}     The Ohio Supreme Court has explained that, “[t]he legal concepts of

sufficiency of the evidence and weight of the evidence are both quantitatively and

qualitatively different.” State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541

(1997).    “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, but 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.           An appellate

court, “may determine that a judgment of a trial court is sustained by sufficient evidence,

that court may nevertheless conclude that the judgment is against the weight of the

evidence.” Thompkins at 387.

      {¶43}        The question of “whether the evidence is legally sufficient to sustain a

verdict is a question of law.     State v. Robinson, 162 Ohio St. 486, 124 N.E.2d 148
(1955).”   Thompkins at 386. It is “an inquiry about due process, * * * the resolution of

which does not allow the court to weigh the evidence.” State v. Martin, 20 Ohio App.3d

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

       {¶44}     In a sufficiency inquiry, an appellate court does not assess whether the

state’s evidence is to be believed but whether, if believed, the evidence admitted at trial

supported the conviction.        State v. Starks, 8th Dist. Cuyahoga No. 91682,

2009-Ohio-3375,¶ 25, citing Thompkins at 387.       “‘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. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, quoting State v.

Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus. The weight to

be given the evidence and the credibility of the witnesses are primarily for the trier of

fact. State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386.

       {¶45}   After consideration of whether the evidence is sufficient as a matter of

law, a manifest weight inquiry looks at whether the evidence was substantial enough for a

jury to reasonably conclude that all of the elements of the alleged crime have been proved

beyond a reasonable doubt.         The appellate court sits “‘as a thirteenth juror.’”

Thompkins at 387, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d

652 (1982).    The appellate court reviews the entire record, considers the credibility of

the witnesses, weighs the evidence and all reasonable inferences, and determines whether
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. Martin at 175; Leonard at 68.

       {¶46}    In weighing the evidence, we consider whether a greater amount of

credible trial evidence supports “one side of the issue rather than the other.” Thompkins,

78 Ohio St.3d at 387, 1997-Ohio-52, 678 N.E.2d 541.

       It indicates clearly to the jury that the party having the burden of proof
       will be entitled to their verdict, if, on weighing the evidence in their minds,
       they shall find the greater amount of credible evidence sustains the issue
       which is to be established before them. Weight is not a question of
       mathematics, but depends on its effect in inducing belief.” Black’s Law
       Dictionary 1594 (6 Ed.1990).

Id.   We sit as a “thirteenth juror,” reviewing the entire record to determine whether 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.”      Martin, 20 Ohio App.3d at 175,

485 N.E.2d 717.

       {¶47}    The jury heard testimony from Harmon who was present at the first

controlled buy, the task force members present at each of the controlled buys, testimony

from the CI regarding each controlled buy, and both video and audio evidence of the

buys. Testimony included the amount of the drugs purchased, the payment, and testing of

the drugs to confirm chemical composition.

       {¶48}      Based on a thorough review of the record, we do not find that the verdict

in this case is against the manifest weight of the evidence, nor is the evidence insufficient

as a matter of law.   The ninth and tenth errors are overruled.
       XI.     Appellant’s rights to due process and equal protection under the
               Ohio and United States Constitutions were violated when the state
               excluded an African-American juror without providing a satisfactory
               race-neutral reason and without the trial court correctly applying the
               law.

       {¶49}    In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986), the court

determined that the exclusion of jurors on the basis of race denies a defendant’s rights

under the Equal Protection Clause of the Fourteenth Amendment to the United States

Constitution. We will not disturb a trial court’s ruling on a challenge under Batson

unless it is clearly erroneous.   State v. Johnson, 144 Ohio St.3d 518, 2015-Ohio-4903,

45 N.E.3d 208, ¶ 23, citing State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, 23

N.E.3d 1096, ¶ 53.

       {¶50}    A tripartite evaluation is made by a trial court where a defendant claims

racial discrimination during peremptory challenges:       (1) the defendant must make a

prima facie showing that a prosecutor is engaged in racial discrimination; (2) if that

burden can somehow be surmounted, the prosecutor must find a racially neutral

explanation for the challenge; and (3) the court must consider all of the circumstances in

determining whether the prosecutor’s explanation is a pretext.      Johnson at ¶ 23, citing

Batson at 96-98.

       {¶51}       In State v. Bolton, 8th Dist. Cuyahoga No. 81638, 2003-Ohio-3020,

Bolton was convicted of drug trafficking and appealed the removal of two

African-American jurors.      “Juror L” was excluded because his brother had a long

criminal record, his son had previously been prosecuted, and the juror opined that the
crack cocaine sentencing laws were discriminatory as compared to powdered cocaine.

Bolton at ¶ 9.    The second peremptory challenge of an African-American juror was to

“Juror C.”     A close family member of “Juror C’s” was prosecuted for obstruction of

justice relating to a homicide.      The prosecutor informed the court that he personally

worked on that case and it was extremely contentious, so the state believed “Juror C” was

unable to remain fair and unbiased.       Id. at ¶ 10.1

       {¶52}     The trial court, observing that two white jurors were also removed, held

that the challenges were proper.     Id. at ¶ 12.     Bolton argued on appeal that permitting a

peremptory challenge because a juror’s relative was convicted of a crime “is inherently

discriminatory, in light of statistics which demonstrate that blacks are convicted of crimes

at a substantially higher rate than whites.”        Id. at ¶ 13.   “[W]e decline[d] to address the

defendant’s specific contention, as we determined that the record was clear that the facts

supported a “race-neutral peremptory challenge.”

       Juror [L] was excused because his brother committed the exact same crime
       as the one the defendant was being tried for and because Juror [L] led the
       prosecutor to believe that his views on sentencing for crack cocaine were
       not favorable to the state’s position. Further, Juror [C] was excused
       because of the particularly contentious nature of the prosecution between
       her grandson and the Cuyahoga County prosecutors office in connection
       with a very recent homicide investigation.




             The peremptory challenge to “Juror C” was not based on her statements that her son had
       1


been murdered 20 years earlier, her daughter was murdered 10 years earlier, and her son recently
acquitted of child molestation charges. Id. at ¶ 10, fn. 2.
Id. at ¶ 13.     We determined that there was no “intent to exclude the juror on the basis of

race.”       Id. at ¶ 20.2

         {¶53}       Makin contests the peremptory removals of two African-American

female jurors because of family members who had been charged with drug crimes.                  The

first juror said that her son had been accused in a drug case but that she could fairly

deliberate the current case.     The trial court requested that the state supply a race-neutral

reason for peremptory challenge of that juror. The state responded that “one of the

detectives said that he may have been the investigator on the drug case.”

         {¶54}     The second juror said that two cousins were imprisoned and her brother

placed on probation for drug trafficking, but also stated she could be fair in entertaining

the current case.       The state’s basis for the peremptory challenge was that the drug

charges against the family members were the same type of charges currently before the

trial court.

         {¶55}     Of the jury members ultimately selected, several responded during voir

dire about their experience with criminal activities.        No. 4’s good male friend was shot

and paralyzed due to drug related activity.         No. 19 (African-American male) revealed

that a close friend had been accused of a crime, that he did not know if the friend was

treated fairly, but he could fairly decide the case.      The son of No. 17 (African-American

female) was charged with possession of drug paraphernalia and imprisoned. She did not



            The concurring opinion, recognizing the defendant’s cited statistical disparity in black
         2


versus white convictions, explained that because the Bolton case challenge did not rely solely on the
know if he was treated fairly, but said that she could be fair during the trial.    Of the three

alternates, the brother of No. 2 has had drug issues and was treated fairly and she felt she

could be fair in the current case.

        {¶56}     The trial court advised the state that it did not get the impression that

either of the jurors indicated anything other than they could be fair and impartial.

However, the trial court determined that, though the state “could have built a stronger

record,” the cited basis for removing the two jurors was a “race-neutral reason.”

Further, since there were six African-Americans left after removing the first two, “we do

have respective of the jury not [sic] — of having [an] African-American component to it,

so I’ll deny the request.”

        {¶57}     Based on the foregoing, the record does not support that the trial court’s

decision was clearly erroneous.         “This deferential standard arises from the fact that step

three of the Batson inquiry turns largely on the evaluation of credibility by the trial court.”

 State v. Davenport, 8th Dist. Cuyahoga No. 95911, 2011-Ohio-4635, ¶ 18, citing State v.

Herring, 94 Ohio St.3d 246, 257, 2002-Ohio-796, 762 N.E.2d 940, citing Batson, 476

U.S. at 98.

        {¶58}      The eleventh assignment of error is overruled.

        XII.    The trial court erred by aggregating the weight of the drugs in
                separate counts to meet the major drug offender specification.




criminal “relative exclusion,” the trial court’s ruling was correct.
       {¶59}    Makin’s twelfth assigned error is the trial court’s aggregation of the

drugs involved in the multiple controlled buys. We find no merit to this argument.

       {¶60}   The state relies on State v. Robinson, 8th Dist. Cuyahoga No. 64734, 1994

Ohio App. LEXIS 799 (Mar. 3, 1994), where this court found an aggregation of

transactions to achieve a maximum penalty imposition based on a sufficiency of the

evidence analysis was proper. Robinson was indicted on 45 counts of aggravated drug

trafficking with firearm and violence specifications. Id. at 1. A witness who allowed

Robinson and his girlfriend to use her apartment to sell crack cocaine, testified that 40 to

50 rocks per day were sold during the week, and 140 to 160 rocks per day were sold on

each weekend day. Id. at 4.

       {¶61}   Counts 1 through 15 charged Robinson with trafficking cocaine in an

amount equal to or exceeding three times the bulk amount under the then current version

of R.C. 2925.03(A)(7). Robinson argued that he should not have been indicted for 15

counts, each covering a one week period, first-degree felony for the drug sales where the

evidence reflects “45 to 50 third or fourth degree felonies.” Id. at 8.

       {¶62}   At that time, this court determined that the issue was a case of first

impression in Ohio:

       Whether the [s]tate can aggregate a week of drug sales into one offense of a
       higher degree is a question of first impression for this court. We have
       been unable to find any authority to prevent the [s]tate from charging
       appellant for a course of conduct which took place over a week.
       Testimony existed to support the charges that appellant possessed, sold and
       prepared more than three times the bulk amount of cocaine, [75] unit doses
       or rocks of cocaine, over the course of each of the [15] weeks appellant
         used Jones’s apartment. It is not required that the prosecution prove that
         the entire quantity of cocaine was sold to one individual at one time.
         Appellant is also not entitled to the less onerous possibility of charges,
         when more than one possibility exists. It is within the discretion of the
         [s]tate to charge defendants with the offenses it has the evidence to prove.

(Emphasis added.) Id. at 8-9.      Thus, it appears that the evidence supported the sale of

the bulk amount per weekly count.

         {¶63}    We conducted a similar analysis in State v. Koebler, 8th Dist. Cuyahoga

No. 101172, 2014-Ohio-5283. Koebler argued that the evidence was insufficient to

show that he was in possession of 5 to 50 times the bulk amount, “as there was no

evidence itemizing the number of tablets in his possession at any one moment in time.”

(R.C. 2925.11(A) and 4729.51(C)(3)).      Id at ¶ 19.

         {¶64}    We determined that the state did not have to prove the exact number of

illegal tablets possessed by Koebler at a particular time, based on   R.C. 2925.03(E) and

2925.11(G):

         [I]t is unnecessary to find and return the exact amount of the controlled
         substance involved, and it is sufficient if the finding and return is to the
         effect that the amount of the controlled substance involved is the requisite
         amount, or that the amount of the controlled substance involved is less than
         the requisite amount.

Id. at ¶20.

         {¶65}   Further building on our decision in Robinson, 8th Dist. Cuyahoga

No. 64734, 1994 Ohio App. LEXIS 799, we determined that the state in Koebler need

only prove that the defendant possessed the alleged amount over the “specified period of

time.”    (Emphasis sic.) Id. at ¶ 20.    The state provided sufficient evidence to show
that Koebler possessed more than five times the bulk amount during the July 28, 2011, to

October 31, 2012 period cited in the indictment. Testimony demonstrated that Koebler

received monthly prescriptions amounting to 1,440 Percocet and 780 Viocodin tablets

during the relevant time period, and that Koebler provided those to other witnesses for

sale, constituting the bulk amount for the 13-month period. The trial court’s decision

was affirmed.    Id. at ¶ 26-29.

       {¶66}    Thus, it appears that, to date, the statutes have been construed to vest

broad discretion in the prosecution to prepare counts so as to invoke the maximum

penalty possible under the circumstances.       As long as the evidence is sufficient to

support the conviction, as long as the time periods are listed correctly in the indictments,

the time period involved in aggregating evidence via cumulative events to meet the

greater punitive penalty amount is irrelevant. Id. at ¶ 23. A different result would

require clarification and intervention by the Ohio Supreme Court or legislative action.

       {¶67}    The final assignment of error is without merit.

III.   CONCLUSION

       {¶68}      Judgment is affirmed.

       It is ordered that the 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.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



___________________________________________
ANITA LASTER MAYS, JUDGE

KATHLEEN ANN KEOUGH, A.J., and
PATRICIA ANN BLACKMON, J., CONCUR
