[Cite as State v. Thompson, 2011-Ohio-3631.]


                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                             CRAWFORD COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 3-10-23

        v.

PATRICK A. THOMPSON,                                      OPINION

        DEFENDANT-APPELLANT.




               Appeal from Crawford County Common Pleas Court
                          Trial Court No. 10-CR-0041

                                     Judgment Affirmed

                             Date of Decision:   July 25, 2011




APPEARANCES:

        Shane M. Leuthold for Appellant

        Clifford J. Murphy for Appellee




ROGERS, P.J.
Case No. 3-10-23



      {¶1} Defendant-Appellant,      Patrick    Thompson          (“Thompson”    or

“Defendant”) appeals the judgment of the Court of Common Pleas of Crawford

County, convicting him of one count of trafficking in drugs.            On appeal,

Thompson argues that the conviction was against the manifest weight of the

evidence; and, that the trial court erred in sentencing him to the maximum period

of incarceration authorized by statute. Finding that the evidence supported the

jury’s verdict and that the trial court did not abuse its discretion in imposing

Thompson’s sentence, we affirm the decision of the trial court.

      {¶2} On April 9, 2010, a Crawford County Grand Jury indicted Thompson

on two counts of trafficking in drugs in violation of R.C. 2925.03(C)(6)(a),

felonies of the fifth degree. The two charges stemmed from an investigation by

METRICH, a ten-county regional task force, that conducted two controlled buys

from Thompson through the use of a confidential informant (“CI”). On April 19,

2010, Thompson appeared at arraignment and entered a plea of not guilty. On

September 16, 2010, the matter proceeded to a jury trial. The jury rendered a

verdict of not guilty on count I and guilty on count II. On October 27, 2010, the

trial court sentenced Thompson to twelve months in prison.

      {¶3} At trial, the State presented three witnesses, including: Detective Chris

Hydinger, a deputy sheriff with the Crawford County Sheriff’s Office; Captain Joe

Greathouse of the Bucyrus Police Department; and Anita Hinton (“the CI”), the

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confidential informant. The trial court admitted the State’s two audio recordings

of the controlled buys recorded by a wire worn by the CI, two bags of heroin, the

corresponding lab reports testing the substance from each bag, and the joint

stipulation as to the laboratory results of the substance of each bag. The defense

presented Appellant Thompson. The State’s case in chief adduced the following

relevant evidence.

       {¶4} Detective Heydinger testified that Thompson has been under

investigation by the Crawford County Sheriff’s Office, the Galion Police

Department, and the Ohio State Highway Patrol since 2008 for his involvement

with narcotics. On August 10, 2009, Eric Bohach, a detective with the Galion

Police Department, contacted him stating that the CI had a phone conversation

with Thompson whereby Thompson stated he would sell the CI heroin. On the

evening of August 10, 2009, the CI and her vehicle were searched for contraband

and weapons, the CI was provided with $70.00, and was fitted with an audio

transmitter and digital recorder which allowed the CI and Detective Bohach to

communicate as well as record the transaction. Detective Heydinger testified that,

“at some point in time . . . there was a recovery of heroin” (Trial Tr., p. 67), and

that the CI gave the sheriff’s office a plastic bag, which was later identified to

contain heroin.



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       {¶5} On cross-examination, Detective Heydinger testified that the CI has a

criminal history, but that she is not receiving any preferential treatment for her

assistance in this case, and that he did not know whether the CI used heroin with

Thompson. He further testified that he did not actually see the narcotics purchase

on August 10, 2009.

       {¶6} Captain Greathouse testified that Detective Heydinger contacted him

informing him of an ongoing investigation of Thompson for drug trafficking, and

that a controlled buy was arranged between a CI and Thompson on August 17,

2009. Captain Greathouse testified that on August 17, 2009, the CI’s vehicle and

person were searched for contraband, the CI was given $60.00 to purchase heroin

and was fitted with an audio recording device, and that at about eight o’clock

P.M., he rode with the CI to Thompson’s house. He explained that it was still

daylight by the time he and the CI arrived to Thompson’s house; that when they

pulled into the driveway, the CI honked her horn, parked the car, and exited the

vehicle; that he remained in the vehicle but was able to see the back door; that the

CI knocked on the back door; and, that Thompson exited the residence. He

continued to testify that he observed the CI and Thompson have a conversation;

that the CI handed money to Thompson; that Thompson handed something to the

CI; that the CI walked back to the vehicle; and, that when she reentered the

vehicle, she handed Captain Greathouse two balls of foil that contained heroin.

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       {¶7} The CI testified that on August 10, 2009, she gave Thompson money;

that Thompson gave her heroin; and, that she turned the heroin over to the police.

She explained that on August 17, 2009, she went to Thompson’s house with

Detective Greathouse; that she paid Thompson $70.00; and, that Thompson gave

her the drugs. She stated that she bought drugs from Thompson, but that she never

used drugs with him and never threatened him. On cross-examination, the CI

testified that she would “do what [she] need[ed] to do in order to get somebody to

sell [her] drugs.” Trial Tr., p. 131. The State then rested its case-in-chief.

       {¶8} Thompson testified in his defense.           He testified that he was

acquaintanced with the CI and her husband for approximately two years prior to

the trial, and that he, the CI, and her husband would all use heroin together.

Thompson testified that the CI made several sexual advances towards him once

her husband had “passed out.” Trial Tr., p. 143. Thompson testified that on

August, 10, 2009, the CI called Thompson about five or six times asking

Thompson to sell her drugs, and that he refused, but that the CI continued to call

him, offered to have sex with him, and said that she would leave her husband and

the two of them would enter rehabilitation together. Thompson testified that he

gave in and agreed to make a phone call for her. Thompson said that, on August

10, 2009, he had someone come over with drugs for the CI, that the CI came over,

gave him $70.00, that he gave the $70.00 to the man who brought the drugs, but

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that he had to pay $5.00 extra as the CI did not have enough money. Thompson

testified that he did not feel comfortable selling drugs to the CI because he does

not engage in selling drugs. Lastly, Thompson testified that he never would have

sold drugs to the CI if not for her phone calls and promises.

       {¶9} On cross-examination, Thompson admitted that he possessed and sold

the CI heroin on August 10 and 17, 2009, but testified that he was entrapped. The

defense rested its case and the matter was submitted to the jury.         The jury

convicted Thompson on the second count of trafficking in drugs for the sale on

August 17, 2009, but found him not guilty on the first count of trafficking in drugs

for the sale on August 10, 2009. The trial court sentenced Appellant to twelve

months in prison. It is from the conviction and the sentence that Appellant brings

his appeal, assigning the following errors for our review.

                            Assignment of Error No. I

       THE   CONVICTION   OF   APPELLANT,   PATRICK
       THOMPSON, WAS AGAINST THE MANIFEST WEIGHT OF
       THE EVIDENCE.

                            Assignment of Error No. II

       THE TRIAL COURT ERRED IN ITS DECISION TO
       SENTENCE PATRICK A. THOMPSON TO THE MAXIMUM
       SENTENCE    WHEN     APPLYING  THE   FELONY
       SENTENCING GUIDELINES.




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                            Assignment of Error No. I

      {¶10} In his first assignment of error, Thompson alleges that the conviction

was against the manifest weight of the evidence. Particularly, Thompson asserts

that because the jury found him not guilty on count I due to entrapment, the jury

also should have found him not guilty on count II, as the fact pattern was the same

for both counts. We disagree.

      {¶11} The State contends that there is no evidence that the jury found

Thompson not guilty of count I as the result of entrapment. Specifically, the State

cites the absence of any findings regarding entrapment in the verdict forms.

Rather, the State contends that Detective Greathouse’s testimony, the recovery of

the heroin, and the recorded dialogue were sufficient to establish Thompson’s guilt

on August 17, 2009. We agree.

      {¶12} When an appellate court analyzes a conviction under the manifest

weight standard it must review the entire record, weigh all of the evidence and all

of the reasonable inferences, consider the credibility of the witnesses, and

determine whether, in resolving conflicts in the evidence, the fact finder 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, 78 Ohio St.3d 380,

387, 1997-Ohio-52, superseded by constitutional amendment on other grounds as

stated by State v. Smith, 80 Ohio St.3d 89, 1997-Ohio-355, quoting State v. Martin

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(1983), 20 Ohio App.3d 172, 175. Only in exceptional cases, where the evidence

“weighs heavily against the conviction,” should an appellate court overturn the

trial court’s judgment. Id.

       {¶13} In this case, the manifest weight of the evidence supports the

conviction.   The only evidence that does not support the conviction is the

testimony of the Appellant himself. The trier of fact is in the best position to take

into account inconsistencies, along with the witnesses’ manner and demeanor, and

determine whether the witnesses’ testimony is credible. Hickerson v. Hickerson,

3d Dist. No. 5-10-08, 2010-Ohio-4070, ¶23, citing Seasons Coal Co. v. Cleveland

(1984), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273. The trier of fact is free to believe

or disbelieve all or any of the testimony. State v. Jackson, 10th Dist. No. 01AP-

973, 2002-Ohio-1257, ¶1. Although an appellate court must act as a “thirteenth

juror” when considering whether the manifest weight of the evidence requires

reversal, it must give great deference to the fact finder’s determination of the

witnesses’ credibility. State v. Covington, 10th Dist. No. 02AP-245, 2002-Ohio-

7037, ¶28. The audio recordings, Detective Greathouse’s testimony, and the CI’s

testimony all support the jury’s conviction. Therefore, we cannot conclude that

the conviction was against the manifest weight of the evidence. Accordingly, we

overrule Thompson’s first assignment of error.



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                            Assignment of Error No. II

         {¶14} In his second assignment of error, Thompson argues that the trial

court erred in imposing the maximum term of incarceration allowed for a felony of

the fifth degree. Specifically, Thompson asserts that the trial court arrived at the

sentence in derogation of R.C. 2929.14, as it found that Thompson did not commit

the worst form of the offense, and as Thompson does not pose the greatest

likelihood of recidivism. Rather, Thompson claims that the trial court imposed the

maximum sentence because it believed that trafficking in heroin should be

punished more severely than a fifth degree felony.

         {¶15} The State argues that the trial court did not commit error in its

sentencing as Ohio law affords full discretion to impose prison terms within the

appropriate felony range. Because the trial court considered the purposes and

principles of sentencing, Thompson’s prior record, Thompson’s failure to respond

favorably to community control sanctions, and Thompson’s likelihood of

recidivism, Appellant’s second assignment of error should be overruled.         We

agree.

         {¶16} An appellate court must conduct a meaningful review of the trial

court’s sentencing decision. State v. Daughenbaugh, 3d Dist. No. 16-07-07, 2007-

Ohio-5774, ¶8, citing State v. Carter, 11th Dist. No. 2003-P-0007, 2004-Ohio-

1181. A meaningful review means “that an appellate court hearing an appeal of a

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felony sentence may modify or vacate the sentence and remand the matter to the

trial court for re-sentencing if the court clearly and convincingly finds that the

record does not support the sentence or that the sentence is otherwise contrary to

law.”1 Daughenbaugh, 2007-Ohio-5774, at ¶8, citing Carter, 2004-Ohio-1181, at

¶44; R.C. 2953.08(G).

        {¶17} The trial court has full discretion to sentence an offender to any term

of imprisonment within the statutory range without a requirement that it make

findings or give reasons for imposing the maximum sentence, more than the

minimum sentence, or ordering sentences to be served consecutively. State v.

Foster, 109 Ohio St.3d 1, 2006-Ohio-856, at paragraph seven of the syllabus.

        {¶18} When sentencing an offender, the trial court must consider the

factors set forth under R.C. 2929.12(B), (C), (D), and (E) relating to the

seriousness of the offender’s conduct and the likelihood of the offender’s

recidivism. R.C. 2929.12(A); see also State v. Ramos, 3d Dist. No. 4-06-24, 2007-

Ohio-767, ¶25. However, the trial court is not required to make specific findings

of its consideration of the factors. State v. Kincade, 3d Dist. No. 16-09-20, 2010-

Ohio-1497, ¶8, citing State v. Arnett, 88 Ohio St.3d 208, 2000-Ohio-302. Nor is

the trial court required to state on the record that it has considered the statutory



1
  While we use the clearly and convincingly contrary to law standard of review, we note that our decision in
this case would be identical if we had used an abuse of discretion standard of review.

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criteria or even discussed them. State v. Foust, 3d Dist. No. 3-07-11, 2007-Ohio-

5767, ¶27.

       {¶19} Trafficking in drugs in violation of R.C. 2925.03(C)(6)(a) is a felony

of the fifth degree. R.C. 2929.14(A)(5) states that, “[f]or a felony of the fifth

degree, the prison term shall be six, seven, eight, nine, ten, eleven, or twelve

months.” In the instant case, the trial court sentenced Thompson to a twelve-

month prison term upon consideration of the seriousness of his conduct and his

likelihood of recidivism. Therefore, we find that the trial court’s imposition of the

maximum sentence prescribed by statute is not clearly and convincingly contrary

to law. Accordingly, we overrule Thompson’s second assignment of error.

       {¶20} Having found no error prejudicial to the appellant herein, in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                Judgment Affirmed

SHAW and WILLAMOWSKI, J.J., concur.

/jlr




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