[Cite as State v. Jefferson, 2011-Ohio-6471.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                        JUDGES:
STATE OF OHIO                                   :       Hon. W. Scott Gwin, P.J.
                                                :       Hon. John W. Wise, J.
                          Plaintiff-Appellee    :       Hon. Patricia A. Delaney, J.
                                                :
-vs-                                            :
                                                :       Case No. 2011-CA-0010
CLYDE ALEX JEFFERSON                            :
                                                :
                     Defendant-Appellant        :       OPINION




CHARACTER OF PROCEEDING:                            Criminal appeal from the Richland County
                                                    Court of Common Pleas, Case No. 09-CR-
                                                    913H

JUDGMENT:                                           Affirmed




DATE OF JUDGMENT ENTRY:                             December 14, 2011




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

ANDREW BENOIT                                       KRISTIN E. BROWN
JILL COCHRAN                                        Calhoun, Kademenos & Childress, L.P.A.
Richland County Prosecutor's Office                 Ste. 200
38 South Park Street                                6 West third Street
Mansfield, OH 44902                                 Mansfield, OH 44901
[Cite as State v. Jefferson, 2011-Ohio-6471.]


Gwin, P.J.

        {1}      Defendant-appellant Clyde Jefferson appeals his convictions and

sentences in the Richland County Court of Common Pleas on three counts of trafficking

in drugs, each a felony of the fifth degree. Plaintiff-appellee is the State of Ohio.

                                  STATEMENT F THE FACTS AND CASE

        {2}      John Hawkins, aka C.l. 0801, had a deal with Metrich to attempt to buy

drugs. In exchange, he would be paid $50.00 for every successful buy. In May 2008,

Mr. Hawkins went to Metrich officers and told them that he could make purchases from

a dealer known to him as Bumpy J, later identified as appellant. Mr. Hawkins had met

appellant a week to a week and a half prior to the first controlled buy.

        {3}      On May 19, 2008, Mr. Hawkins went to the Metrich unit and met with

Officers Steve Blust, Keith Porch and Perry Wheeler in order to conduct a controlled

buy from appellant. As required by procedure, the detectives performed a thorough

search of Mr. Hawkins and the vehicle he was driving that day. After the search, Mr.

Hawkins was fitted with a wire, which was turned on and tested by the officers. The CI

does not have the ability to turn off the wire at any point and the listening officers would

detect any tampering with the instrument. Mr. Hawkins was then given money to

purchase the drugs. The money was photocopied. The officer making the copy then

initialed and dated the photocopy for the file.

        {4}      Mr. Hawkins drove to the target address. Metrich officers followed behind

him in two separate vehicles. One vehicle contained a single officer who was watching

the transaction. The other vehicle contained a driver and the “buy controller.” It was the

job of the buy controller to take notes about the transaction and the information heard
Richland County, Case No. 2011-CA-0010                                                   3


on the wire to compare to the statement that would be given by the informant later

during debriefing. All of the officers were able to hear the transaction via the wire worn

by Mr. Hawkins.

      {5}     Mr. Hawkins drove to the address of 765 Floral Court. This apartment

complex with four units is located on the corner of two streets. The apartment complex

also has the address of 765 Bums Street in the emergency dispatch system. Mr.

Hawkins parked his vehicle and exited the car. He approached the apartment from the

back and went up the back stairs. He was seen entering an apartment on the right.

       {6}    Upon entering the unit, Mr. Hawkins spoke with a woman named Ruth

Ann. Ruth Ann was introduced to Mr. Hawkins as appellant's wife. Mr. Hawkins

discussed the purchase with Ruth Ann and handed her the money. Ruth Ann handed

Mr. Hawkins two foil balls of heroin for fifty dollars. Mr. Hawkins indicated that Ruth Ann

received the drugs from appellant. Further, Mr. Hawkins had called appellant previously

and arranged the sale.

       {7}    After completing the transaction, Mr. Hawkins left the apartment, returned

to his vehicle, and drove back to Metrich. The Metrich officers followed him. At Metrich,

the drugs were turned over to officers and the wire was deactivated and removed. Mr.

Hawkins and his vehicle were searched. Mr. Hawkins was then debriefed. A statement

was taken and compared to the controller's notes about the drug transaction. No

contraband was found on Mr. Hawkins or in his vehicle and his statement was

consistent with the audio from the transaction. Mr. Hawkins was shown a photo array

containing six photographs. Mr. Hawkins was able to positively identify appellant as

Bumpy J, the person he was dealing with in the purchase of the heroin. The suspected
Richland County, Case No. 2011-CA-0010                                                4


heroin was submitted to the lab and determined to be heroin, a Schedule 1 drug, in the

amount of .11 grams.

      {8}    On May 20, 2008, Mr. Hawkins returned to Metrich and indicated that he

could perform a second buy from appellant. Mr. Hawkins and his vehicle were searched

and he was fitted with a wire. Mr. Hawkins then drove his vehicle, followed by Metrich

officers, to the same address where he had purchased from appellant the previous day.

He parked in the parking lot while Metrich officers parked nearby to observe and

monitor the audio.

      {9}    During this transaction, Mr. Hawkins testified that he gave the money

directly to appellant and appellant gave him the heroin. There was an argument over the

amount of heroin given to Mr. Hawkins. There had been a telephone discussion

regarding what Mr. Hawkins intended to purchase. Appellant had only given Mr.

Hawkins one foil ball of heroin and Mr. Hawkins had expected two. They renegotiated

and were able to seal the deal. The weight in the single foil ball was the same as the

combined amount of the two foil balls from the previous day.

      {10}   Mr. Hawkins testified that Ruth Ann was present in the apartment on this

day as well, but merely walked in and out of the room. He did not engage in any drug

negotiation or transaction with Ruth Ann on this date. A third person was present during

the transaction. Mr. Hawkins observed this white male pull out a bundle of more than

one hundred hits of heroin. Upon leaving the apartment after the drug transaction, Mr.

Hawkins informed the Metrich officers that there was a white male present with more

than one hundred hits of heroin.
Richland County, Case No. 2011-CA-0010                                                  5


      {11}   Mr. Hawkins then entered his vehicle and returned to the Metrich office,

followed by one of the Metrich vehicles. The other Metrich vehicle remained at the

location of 765 Floral Court/Bums Street and waited to see if the white male would

leave. An undetermined time later, the white male did leave and the Metrich vehicle

followed him. The Metrich officer was able to observe the male commit a traffic violation

and called for a marked vehicle to perform a traffic stop. A marked vehicle made a traffic

stop of the white male and the vehicle was eventually searched as well as the male,

identified as T. Thornsberry. However, no drugs were found.

      {12}   Mr. Hawkins turned over the foil ball of suspected heroin, was searched

and debriefed. His vehicle was also searched. No contraband was found on Mr.

Hawkins or in his vehicle and no inconsistencies were noted in his statement. The

suspected heroin was turned over to the lab and was confirmed to be .11 grams of

heroin.

      {13}   A third buy was conducted on May 22, 2008. Only one Metrich car was

used during this transaction. Mr. Hawkins came to the Metrich office. He was searched

thoroughly, as was his vehicle. Mr. Hawkins was given buy money, this time consisting

of two twenty dollar bills. Instead of heroin, Mr. Hawkins intended to purchase two

twenties of crack cocaine.

      {14}   Mr. Hawkins drove to the address of 765 Floral Court/Bums Street, taking

a direct route, with the Metrich vehicle behind him. Appellant was not present at the

address when Mr. Hawkins arrived. Ruth Ann attempted to call appellant. Mr. Hawkins

told Ruth Ann that he wanted to get forty of “hard” off the appellant, meaning that he

wanted to purchase forty dollars of crack cocaine. Ruth Ann was unable to reach
Richland County, Case No. 2011-CA-0010                                                6


appellant by telephone. Appellant arrived at the apartment a few moments later.

However, he did not have any drugs at that time as he had not "re-upped" and was

waiting for more drugs to arrive, presumably from his supplier.

      {15}   When more drugs did not arrive in a timely manner, Mr. Hawkins told

appellant that he had to leave due to a construction job and left the apartment. Mr.

Hawkins indicated that this was an excuse; he did not have any current construction

jobs, but did not want to keep the Metric officers waiting. He entered his vehicle and

returned to Metrich. Mr. Hawkins was searched along with his vehicle, the wire and

money were collected and then Mr. Hawkins left Metrich.

      {16}   Mr. Hawkins returned an hour or so later with the intention to try to carry

out the buy. The entire procedure was started again with a search of Mr. Hawkins and

his vehicle. The wire was replaced and he was given the buy money for a second time

Mr. Hawkins and the Metrich vehicle returned to 765 Floral Court/Burns Street and once

more Mr. Hawkins entered appellant's apartment. Appellant was there on this occasion

and was engaged in cutting someone's hair. Appellant pointed to Ruth Ann so Mr.

Hawkins gave the money to her. After appellant had finished the barbering job,

appellant went into another room, came back, and handed Mr. Hawkins the crack

cocaine.

      {17}   Mr. Hawkins returned to Metrich, with the Metrich officers following behind

him. Upon return, Mr. Hawkins turned over the suspected drugs, had the wire

deactivated, submitted to a search of his person and vehicle and then made out a

statement. No contraband was found and his statement was consistent with the audio
Richland County, Case No. 2011-CA-0010                                                   7


from the transaction. The suspected cocaine was submitted to the lab and was

determined to be .43 grams of cocaine base, a Schedule II drug.

         {18}   On December 11, 2009, appellant was indicted on three counts of

trafficking in drugs, two counts for heroin and one count for crack cocaine. Each of

these offenses was a felony in the fifth degree. Appellant's jury trial commenced on

December 20, 2010 and lasted for two days. The jury found appellant guilty of all three

counts in the indictment. A sentencing hearing was held on the same day. The trial

court sentenced appellant to consecutive terms of eight months on each count, for a

total sentence of twenty-four months.

         {19}   Appellant has timely appealed raising the following three assignments of

error,

         {20}   “I. APPELLANT'S CONVICTIONS ARE AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.

         {21}   “II. THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING

CONSECUTIVE RATHER THAN CONCURRENT SENTENCES, FAILED TO MAKE

THE STATUTORY FINDINGS REQUIRED BY R.C. 2929.14(E)(4), AND THE

SENTENCES ARE CONTRARY TO LAW.

         {22}   “III. THE TRIAL COURT'S DECISION TO ORDER CONSECUTIVE RATHER

THAN CONCURRENT SENTENCES WAS NOT SUPPORTED BY THE RECORD.”

                                                 I.

         {23}   In his First Assignment of Error, appellant argues that his convictions are

based upon insufficient evidence and are against the manifest weight of the evidence.

We disagree.
Richland County, Case No. 2011-CA-0010                                                     8


       {24}    Our review of the constitutional sufficiency of evidence to support a

criminal conviction is governed by Jackson v. Virginia (1979), 443 U.S. 307, 319, 99

S.Ct. 2781, which requires a court of appeals to determine whether “after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” Id.; see

also McDaniel v. Brown (2010), ––– U.S. ––––, 130 S.Ct. 665, 673, 175 L.Ed.2d 582

(reaffirming this standard); State v. Fry, 125 Ohio St.3d 163, 926 N.E.2d 1239, 2010–

Ohio–1017 at ¶ 146; State v. Clay, 187 Ohio App.3d 633, 933 N.E.2d 296, 2010–Ohio–

2720 at ¶ 68

       {25}    Weight of the evidence addresses the evidence's effect of inducing belief.

State v. Thompkins (1997), 78 Ohio St.3d 380, 386-387, 678 N.E .2d 541, superseded

by constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio

St.3d 89, 1997–Ohio–355, 684 N.E.2d 668. When a court of appeals reverses a

judgment of a trial court on the basis that the verdict is against the weight of the

evidence, the appellate court sits as a “thirteenth juror” and disagrees with the fact

finder’s resolution of the conflicting testimony. Id. at 387, 678 N.E.2d 541, citing Tibbs v.

Florida (1982), 457 U.S. 31, 42, 102 S.Ct. 2211.(Internal quotation marks omitted).

However, an appellate court may not merely substitute its view for that of the jury, but

must find that “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.” State v.

Thompkins, supra 78 Ohio St.3d at 387. (Internal quotation marks and citations

omitted). Accordingly, reversal on manifest weight grounds is reserved for “the

exceptional case in which the evidence weighs heavily against the conviction.” Id.
Richland County, Case No. 2011-CA-0010                                                  9


       {26}   In the case at bar, appellant was charged with selling or offering to sell

heroin and crack cocaine in violation of R.C. 2925.02(A)(1).

       {27}   As noted in the Statement of Facts, supra the informant testified that he

obtained the drugs in question from appellant. Sergeant Keith Porch testified that he

monitored the listening device worn by appellant during the three transactions. Sergeant

Porch verified and corroborated appellant’s version of event. Further, the jury was

permitted to hear the actual recordings of each of the three transactions.

       {28}   Because the trier of fact is in a better position to observe the witnesses'

demeanor and weigh their credibility, the weight of the evidence and the credibility of

the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d

230, syllabus 1.

       {29}   In the case at bar, reasonable minds could find, beyond a reasonable

doubt, that appellant sold or offered to sell heroin and crack cocaine. Upon a careful

review of the record and upon viewing the direct and circumstantial evidence in the light

most favorable to the prosecution, this court cannot conclude that the jury lost its way

and created a manifest miscarriage of justice when it found appellant guilty of three

counts of trafficking in controlled substances.

       {30}   We conclude the jury, in resolving the conflicts in the evidence, did not

create a manifest injustice so as to require a new trial. Viewing this evidence in a light

most favorable to the prosecution, we further conclude that a rational juror could have

found beyond a reasonable doubt that appellant had sold or offered to sell heroin and

crack cocaine as alleged in the Indictment.
Richland County, Case No. 2011-CA-0010                                                     10


       {31}   Accordingly, appellant’s convictions are not against the manifest weight or

the sufficiency of the evidence.

       {32}   Appellant’s First Assignment of Error is overruled.

                                               II & III

       {33}   Appellant’s Second and Third Assignments of Error raise common and

interrelated issues; therefore, we will address the arguments together.

       {34} In his Second Assignment of Error appellant argues that his consecutive

sentences in this case are contrary to the law due to a failure by the trial court to make

statutory findings required by R.C. 2929.14(E)(4). In his Third Assignment of Error

appellant maintains that consecutive sentences were not supported by the record.

       {35} In a plurality opinion, the Supreme Court of Ohio established a two-step

procedure for reviewing a felony sentence. State v. Kalish, 120 Ohio St.3d 23, 2008-

Ohio-4912, 896 N.E.2d 124. The first step is to "examine the sentencing court's

compliance with all applicable rules and statutes in imposing the sentence to determine

whether the sentence is clearly and convincingly contrary to law." Kalish at ¶ 4. If this

first step "is satisfied," the second step requires the trial court's decision be "reviewed

under an abuse-of-discretion standard." Id.

       {36} The relevant sentencing law is now controlled by the Ohio Supreme Court's

decision in State v. Foster, i.e. " * * * trial courts have full discretion to impose a prison

sentence within the statutory range and are no longer required to make findings or give

their reasons for imposing maximum, consecutive, or more than the minimum

sentences." 109 Ohio St.3d 1, 30, 2006-Ohio-856 at ¶ 100, 845 N.E.2d 470, 498.
Richland County, Case No. 2011-CA-0010                                                  11


       {37} In the first step of our analysis, we review whether the sentence is contrary

to law. Appellant was sentenced for three counts of trafficking in drugs, each a felony of

the fifth degree. Upon conviction for a felony of the fifth degree, the potential sentence

that the trial court can impose is six, seven, eight, nine, ten, eleven, or twelve months.

R.C. 2929.14 (A)(5). In the case at bar, appellant was sentenced to a term of eight

months of each count, consecutively, for an aggregate prison term of twenty-four

months.

       {38} Upon review, we find that the trial court's sentencing on the charges

complies with applicable rules and sentencing statutes. The sentences were within the

statutory sentencing range. Furthermore, the record reflects that the trial court

considered the purposes and principles of sentencing and the seriousness and

recidivism factors as required in Sections 2929.11 and 2929.12 of the Ohio Revised

Code and advised appellant regarding post release control. Therefore, the sentences

are not clearly and convincingly contrary to law.

       {39} Having determined that the sentence is not contrary to law we must now

review the sentence pursuant to an abuse of discretion standard. Kalish at ¶ 4; State v.

Firouzmandi, supra at ¶ 40. In reviewing the record, we find that the trial court gave

careful and substantial deliberation to the relevant statutory considerations.

       {40} The failure to indicate at the sentencing hearing that the court has

considered the factors in R.C. 2929.11 and 2929.12 does not automatically require

reversal. State v. Reed, 10th Dist. No. 09AP–1163, 2010–Ohio–5819, ¶ 8. “When the

trial court does not put on the record its consideration of R.C. 2929.11 and 2929.12, it is

presumed that the trial court gave proper consideration to those statutes.” Id., citing
Richland County, Case No. 2011-CA-0010                                                 12

Kalish at ¶ 18, fn. 4. “The Code does not specify that the sentencing judge must use

specific language or make specific findings on the record in order to evince the requisite

consideration of the applicable seriousness and recidivism factors.” State v. Arnett, 88

Ohio St.3d 208, 215, 2000–Ohio–302.

      {41} Further the Supreme Court of Ohio held in State v. Hodge, 128 Ohio St.3d

1, 2010–Ohio–6320, “For all the foregoing reasons, we hold that the decision of the

United States Supreme Court in Oregon v. Ice [(2009), 555 U.S. 160, 129 S.Ct. 711,

172 L.Ed.2d 517], does not revive Ohio's former consecutive-sentencing statutory

provisions, R.C. 2929.14(E)(4) and 2929.41(A), which were held unconstitutional in

State v. Foster. Because the statutory provisions are not revived, trial court judges are

not obligated to engage in judicial fact-finding prior to imposing consecutive sentences

unless the General Assembly enacts new legislation requiring that findings be made.”

See, State v. Fry, Delaware App. No. 10CAA090068, 2011-Ohio-2022 at ¶ 16-17.

      {42} In the case at bar, the state in requesting maximum consecutive sentences

informed the trial court of appellant's criminal history extending back to the 1970’s

including convictions for rape, robbery, breaking and entering, receiving stolen property,

failure to register as a sex offender, and possession of drugs. The state also cited the

fact that appellant was facing charges in a pending federal case.

      {43} We find the trial court properly considered the purposes and principles of

sentencing set forth in R.C. 2929.11, as well as the applicable factors set forth in R.C.

2929.12, along with all other relevant factors and circumstances. While appellant may

disagree with the weight given to these factors by the trial judge, appellant's sentence

was within the applicable statutory range for a felony of the fifth degree and therefore,
Richland County, Case No. 2011-CA-0010                                               13


we have no basis for concluding that it is contrary to law. Similarly, the trial court's

consecutive sentence cannot be said to be an abuse of discretion given the

circumstances here. See Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219 (an

abuse of discretion “implies that the court's attitude is unreasonable, arbitrary or

unconscionable.”).

         {44} Accordingly, we overrule appellant's Second and Third Assignment of

Error.

         {45} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Richland County, Ohio, is affirmed.




By Gwin, P.J.,

Wise, J., and

Delaney, J., concur


                                         _________________________________
                                         HON. W. SCOTT GWIN

                                         _________________________________
                                         HON. JOHN W. WISE

                                         _________________________________
                                         HON. PATRICIA A. DELANEY

WSG:clw1128
[Cite as State v. Jefferson, 2011-Ohio-6471.]


              IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
CLYDE ALEX JEFFERSON                              :
                                                  :
                                                  :
                        Defendant-Appellant       :       CASE NO. 2011-CA-0010




    For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Court of Common Pleas, Richland County, Ohio, is affirmed. Costs to appellant.




                                                      _________________________________
                                                      HON. W. SCOTT GWIN

                                                      _________________________________
                                                      HON. JOHN W. WISE

                                                      _________________________________
                                                      HON. PATRICIA A. DELANEY
