[Cite as State v. Ayers, 194 Ohio App.3d 812, 2011-Ohio-3500.]




          IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

                                                    :
THE STATE OF OHIO,
     Appellee,                                      :     C.A. CASE NO. 24060

v.                                                  :     T.C. CASE NO. 2009-CR-1010

                                                    :     (Criminal Appeal from
AYERS,                                                     Common Pleas Court)
     Appellant.                           :

                                      . . . . . . . . .

                                          O P I N I O N

                    Rendered on the 15th day of July, 2011.

                                      . . . . . . . . .

Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and
Timothy J. Cole, Assistant Prosecuting Attorney, for appellee.

Michael T. Columbus, for appellant.

                                      . . . . . . . . .

        GRADY, Presiding Judge.

        {¶ 1} Defendant, Nesbitt Ayers, appeals from his conviction

and sentence for trafficking in marijuana.

        {¶ 2} On March 26, 2009, at around 9:30 p.m., Dayton police

officer Keith Coberly was patrolling the high-drug-activity area

in downtown Dayton near Fourth and Main Streets, when he noticed

defendant standing on the corner of the next intersection at Fourth

and Jefferson Streets.                  Officer Coberly is a 20-year veteran of
                                                                  2

the Dayton police department who has worked in drug interdiction

for nine years.    Officer Coberly recognized defendant and knew

him as a downtown drug dealer.        Officer Coberly watched as

defendant walked to the RTA bus shelter on the corner of Fourth

and Main Streets.     Officer Coberly knew that defendant had

previously been “trespassed off” all RTA property.

     {¶ 3} Defendant approached a man, later identified as David

Dewberry, who was sitting on a bench inside the RTA bus shelter.

 The area was well lit, and Officer Coberly could observe both

men’s movements.    Officer Coberly watched as defendant reached

forward with his right hand and handed something to Dewberry, who

took the item with his left hand, placed it onto a small white

piece of paper he had on his knee, folded it up, and placed it

in his right front pants pocket.    Officer Coberly could not see

what the item was, but based upon his experience, he believed that

he had just witnessed a hand-to-hand drug transaction.

     {¶ 4} After the exchange, defendant walked away south on Main

Street, and Dewberry walked north on Main Street.   Officer Coberly

radioed Officer August and told him to arrest defendant for

trespassing on RTA property.   Officer Coberly also radioed Officer

Hurley and told him that Dewberry was walking in his direction

and to stop him because Dewberry had drugs in his right front pants

pocket.   Defendant was arrested for trespassing and searched, but
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no drugs were found.   Officer Hurley stopped and searched Dewberry,

finding 1.2 grams of marijuana wrapped in a white piece of paper

in Dewberry’s right front pants pocket.     Dewberry gave police a

written statement admitting that he had gotten the marijuana from

defendant.

     {¶ 5} Defendant was indicted on one count of trafficking in

marijuana, R.C. 2925.03(A)(1), a felony of the fifth degree.

Defendant waived his right to a jury trial and was tried to the

court on March 15, 2010.     At trial, Dewberry denied purchasing

or getting any marijuana from defendant.     Dewberry claimed that

he gave police a false statement, saying he got that marijuana

from defendant so he did not have to go to jail.    The trial court

found defendant guilty of trafficking in marijuana and sentenced

him to five years of community-control sanctions.         Defendant

timely appealed to this court from his conviction and sentence.

FIRST ASSIGNMENT OF ERROR

     {¶ 6} “The verdict was not supported by sufficient evidence.”

     {¶ 7} Defendant argues that his conviction for trafficking

in marijuana is not supported by legally sufficient evidence and

is against the manifest weight of the evidence.

     {¶ 8} Defendant was found guilty of trafficking in marijuana

in violation of R.C. 2925.03(A)(1), which provides:      “No person

shall knowingly do any of the following: Sell or offer to sell
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a controlled substance.”      “Sale” includes delivery, barter,

exchange, transfer, gift, or offer thereof.       R.C. 2925.01(A),

3719.01(AA).

     {¶ 9} A    sufficiency-of-the-evidence   argument     challenges

whether the state has presented adequate evidence on each element

of the offense to allow the case to go to the jury or sustain the

verdict as a matter of law.    State v. Thompkins (1997), 78 Ohio

St.3d 380.     The proper test to apply to the inquiry is the one

set forth in paragraph two of the syllabus of State v. Jenks (1991),

61 Ohio St.3d 259:

     {¶ 10} “An appellate court's function when reviewing the

sufficiency of the evidence to support a criminal conviction is

to examine the evidence admitted at trial to determine whether

such evidence, if believed, would convince the average mind of

the defendant's guilt beyond a reasonable doubt.         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.”

     {¶ 11} Evidence presented to prove the elements of a crime

may be direct or circumstantial, and both have the same probative

value.   Jenks.

     {¶ 12} Defendant argues that his conviction for trafficking
                                                                         5

in marijuana is not supported by legally sufficient evidence

because there is no evidence that he sold or offered to sell

marijuana to Dewberry.   At most, the evidence shows that defendant

may have given marijuana to Dewberry as a gift.      The state responds

that, at the very least, the evidence shows that much.

     {¶ 13} Although Dewberry testified at trial that he did not

purchase or receive any marijuana from defendant, the evidence

presented at trial, when construed in a light most favorable to

the state, especially Officer Coberly’s testimony, demonstrates

otherwise.   Officer Coberly observed defendant, a person he knew

to be a drug dealer, in a high-drug-activity area, hand an item

to Dewberry, which Dewberry wrapped in a white piece of paper and

placed in his right front pants pocket.      Officer Coberly, although

he could not see what the item was due to its small size, and did

not see any money change hands, reasonably believed, based upon

his experience, that drugs had been transferred from defendant

to Dewberry in a hand-to-hand drug transaction.          When Dewberry

was stopped by Officer Hurley and his right front pants pocket

was searched, 1.2 grams of marijuana wrapped inside a white piece

of paper were discovered.

     {¶ 14} Any   delivery,     exchange,   transfer,   or   gift   of   a

controlled substance constitutes a “sale” for purposes of R.C.

2925.03(A)(1).     See   R.C.   2925.01(A)    and   3719.01(AA).     The
                                                                         6

credibility of the witnesses and the weight to be given their

testimony are matters for the triers of fact, the trial court here,

to decide.     State v. DeHass (1967), 10 Ohio St.2d 230.

     {¶ 15} This exchange between defendant and Dewberry took place

in a high-drug-activity area, and the behavior of defendant and

Dewberry was consistent with drug activity.              State v. Ousley,

Montgomery App. Nos. 23496, 23506, 2010-Ohio-3116.             Based upon

the evidence presented and the reasonable inferences that may be

drawn from that evidence, a rational trier of facts could find

the essential elements of trafficking in marijuana in violation

of R.C. 2925.03(A)(1) proven beyond a reasonable doubt.

     {¶ 16} In setting forth the penalties for trafficking in

marijuana, R.C. 2925.03(C)(3)(a) provides that generally, the

offense   is   a   felony   of   the   fifth   degree.     However,   R.C.

2925.03(C)(3)(g) provides:

     {¶ 17} “Except as otherwise provided in this division, if the

offense involves a gift of twenty grams or less of marihuana,

trafficking in marihuana is a minor misdemeanor upon a first offense

and a misdemeanor of the third degree upon a subsequent offense.

 If the offense involves a gift of twenty grams or less of marihuana

and if the offense was committed in the vicinity of a school or

in the vicinity of a juvenile, trafficking in marihuana is a

misdemeanor of the third degree.”
                                                                    7

     {¶ 18} The evidence was sufficient to prove that the transfer

of drugs by defendant to Dewberry was either a gift or a sale.

In that circumstance, it was necessary also to determine whether

defendant’s transfer of marijuana to Dewberry was a gift or a sale.

State v. Monroe (July 26, 1995), Montgomery App. No. 14842.

Because the trial court as the trier of fact made no factual

determination whether the transaction between defendant and

Dewberry constituted a sale or a gift, the judgment of the trial

court must be reversed and this cause remanded to the trial court

for a factual determination whether the transaction constituted

a sale or a gift, and for the imposition of a sentence appropriate

to that finding.   Monroe.

     {¶ 19} Defendant’s first assignment of error is sustained in

part and overruled in part.

SECOND ASSIGNMENT OF ERROR

     “Even if sufficient evidence was presented, the verdict was

against the manifest weight of the evidence.”

     {¶ 20} A weight of the evidence argument challenges the

believability of the evidence and asks which of the competing

inferences suggested by the evidence is more believable or

persuasive.   State v. Hufnagle (Sept. 6, 1996), Montgomery App.

No. 15563, 1996 WL 501470.   The proper test to apply to that inquiry

is the one set forth in State v. Martin (1983), 20 Ohio App.3d
                                                                           8

172, 175:

      {¶ 21} “The court, reviewing the entire record, weighs the

evidence and all reasonable inferences, considers the credibility

of witnesses and determines whether in resolving conflicts in the

evidence, the jury lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and

a new trial ordered.”          Accord Thompkins, 78 Ohio St.3d 380.

      {¶ 22} The credibility of the witnesses and the weight to be

given to their testimony are matters for the trier of fact to

resolve.    State v. DeHass (1967), 10 Ohio St.2d 230. In State v.

Lawson (Aug. 22, 1997), Montgomery App. No. 16288, we observed:

      {¶ 23} “Because the factfinder * * * has the opportunity to

see   and   hear    the   witnesses,   the   cautious    exercise   of   the

discretionary power of a court of appeals to find that a judgment

is against the manifest weight of the evidence requires that

substantial        deference     be   extended   to     the   factfinder’s

determinations of credibility.         The decision whether, and to what

extent, to credit the testimony of particular witnesses is within

the peculiar competence of the factfinder, who has seen and heard

the witness.”

      {¶ 24} This court will not substitute its judgment for that

of the trier of fact on the issue of witness credibility unless

it is patently apparent that the trier of fact lost its way in
                                                                   9

arriving at its verdict.      State v. Bradley (Oct. 24, 1997),

Champaign App. No. 97-CA-03.

     {¶ 25} Defendant argues that his conviction for trafficking

in marijuana is against the manifest weight of the evidence because

the evidence fails to demonstrate that defendant sold or even gave

marijuana to Dewberry.   As we discussed in resolving defendant’s

first assignment of error, “sale” includes a gift for purposes

of a violation of R.C. 2925.03(A)(1), and the evidence presented

here and the reasonable inferences that may be drawn therefrom

are legally sufficient to prove that defendant at least gave

marijuana to Dewberry.      Dewberry’s testimony at trial that

defendant did not sell or give him marijuana is contradicted by

his written statement that he gave police saying he got the

marijuana from defendant.   The evidence clearly does not support

defendant’s theory that what Officer Coberly witnessed was simply

defendant and Dewberry “bumping fists.”

     {¶ 26} The trial court did not lose its way in this case simply

because it chose to believe the state’s witnesses rather than

defendant’s, which it had a right to do.    The credibility of the

witnesses and the weight to be given to their testimony were matters

for the trier of fact to decide.    DeHass, 10 Ohio St.2d 230.

     {¶ 27} Reviewing this record as a whole, we cannot say that

the evidence weighs heavily against a conviction, that the trier
                                                                     10

of fact lost its way in choosing to believe the State’s witnesses,

or   that   a   manifest   miscarriage   of   justice   has   occurred.

Defendant’s conviction is not against the manifest weight of the

evidence.

     {¶ 28} Defendant’s second assignment of error is overruled.

     {¶ 29} Having sustained defendant’s first assignment of error

in part, we reverse the judgment of the trial court and remand

this cause for a factual determination whether the transaction

charged in the indictment constituted a sale or a gift, and for

the imposition of a sentence appropriate to that finding.




                                          Judgment affirmed in part

                                               and reversed in part,

                                                  and cause remanded



DONOVAN and FROELICH, JJ., concur.
