[Cite as State v. Fisher, 2014-Ohio-436.]




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




STATE OF OHIO,

   PLAINTIFF-APPELLEE,                                     CASE NO. 6-13-03

  v.

DANIEL LEWIS FISHER,                                       OPINION

   DEFENDANT-APPELLANT.



                  Appeal from Hardin County Common Pleas Court
                           Trial Court No. 20122051 CRI

                                       Judgment Affirmed

                           Date of Decision: February 10, 2014



APPEARANCES:

        Michael J. Short for Appellant.

        Destiny R. Hudson for Appellee.
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PRESTON, J.

       {¶1} Defendant-appellant, Daniel Lewis Fisher, appeals the Hardin County

Court of Common Pleas’ judgment entry of conviction. We affirm.

       {¶2} On March 1, 2012, the Hardin County Grand Jury indicted Fisher on

Count One of aggravated trafficking in drugs in violation of R.C. 2925.03(A)(1),

(C)(1)(a), a fourth-degree felony; Counts Two and Three of aggravated possession

of drugs in violation of R.C. 2925.11(A), (C)(1)(a), fifth-degree felonies; and,

Count Four of possession of criminal tools in violation of R.C. 2923.24(A), a fifth-

degree felony. (Doc. No. 1).

       {¶3} On May 21, 2012, Fisher was arraigned and entered pleas of not guilty

to all counts in the indictment. (Doc. No. 5).

       {¶4} On June 4, 2013, the matter proceeded to a jury trial, and the jury

found Fisher guilty on all counts. (Doc. Nos. 37-41).

       {¶5} On July 29, 2013, the trial court held a sentencing hearing wherein it

found that Count Two was an allied offense to Count One. (JE, Doc. No. 50);

(July 29, 2013 Tr. at 16). The State elected to sentence on Count One. (Id.); (Id.).

The trial court sentenced Fisher to two years community control on each of Counts

One, Three, and Four and further ordered Fisher serve his community control

concurrently. (Id.); (Id. at 16-23). The trial court filed its judgment entry of

sentence on August 1, 2013. (Doc. No. 50).


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        {¶6} On August 2, 2013, Fisher filed a notice of appeal, and now raises one

assignment of error. (Doc. No. 52).

                                     Assignment of Error

        The conviction was against the manifest weight of the evidence.

        {¶7} In his sole assignment of error, Fisher argues that his aggravated

trafficking and aggravated possession convictions are against the manifest weight

of the evidence. With respect to the aggravated trafficking conviction, Fisher

argues that the State’s sole witness, a confidential informant (“CI”), was not a

credible witness because of his admitted lack of memory concerning the details of

the transaction. With respect to the aggravated possession charge, Fisher argues

that he did not knowingly possess a controlled substance, because he believed the

substance was jewelry cleaner.1

        {¶8} In determining whether a conviction is against the manifest weight of

the evidence, a reviewing court must examine the entire record, “‘[weigh] the

evidence and all reasonable inferences, [consider] the credibility of witnesses and

[determine] whether in resolving conflicts in the evidence, the [trier of fact]

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), quoting State v. Martin, 20 Ohio App.3d 172, 175


1
  Although Fisher states that his criminal tools conviction was also against the manifest weight of the
evidence, he does not provide any argument relative to that conviction, and we decline to make an
argument for him on appeal. App.R. 12(A)(2); App.R. 16(A)(7).

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(1st Dist.1983).    A reviewing court must, however, allow the trier of fact

appropriate discretion on matters relating to the weight of the evidence and the

credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230, 231 (1967).

       {¶9} The criminal offense of aggravated drug trafficking is codified in R.C.

2925.03, which provides, in relevant part: “[n]o person shall knowingly * * *

[s]ell or offer to sell a controlled substance or a controlled substance analog * * *.”

R.C. 2925.03(A)(1). The criminal offense of aggravated possession of drugs is

codified in R.C. 2925.11, which provides, in pertinent part: “[n]o person shall

knowingly obtain, possess, or use a controlled substance or a controlled substance

analog.” R.C. 2925.11(A). The indictment alleged that Fisher trafficked and

possessed Pentedrone, with a chemical structure substantially similar to

Methcathinone, a.k.a. Bath Salts and Jewelry Cleaner, a Schedule I controlled

substance. (Doc. No. 1). R.C. 3719.41, 3719.43; 21 U.S.C. 812; 21 C.F.R.

1308.11(f)(5). (See also June 4, 2013 Tr. at 121).

       {¶10} Fisher argues that the CI’s testimony was not credible because the CI

could not remember certain details concerning the drug transaction, and, at trial,

the CI could not remember Fisher’s name. While the CI did testify that he did not

know the defendant’s name—or at least the defendant’s last name—at the time he

entered the store, he identified the drug dealer as “Danny Fisher” in a statement he

made a few minutes after the controlled buy. (Tr. at 131, 135-136, 145). At trial,

the CI identified Fisher as the person that sold him the bath salts on December 1,

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2011. (Id. at 137). While the CI could not remember whether he received a

receipt or whether Fisher deposited the money into the cash register, the CI

testified that he gave everything he received during the controlled buy to law

enforcement. (Id. at 138-140). The CI did recall that, when he entered the store to

make the purchase, he asked the defendant for “bath salts,” and the defendant

never questioned the nature of the substance he was selling to him. (Id. at 141-

142). Based on the aforementioned, the jury did not clearly lose its way and create

a manifest miscarriage of justice. The CI testified almost a year and a half after

the controlled drug buy occurred and forgot some of the details concerning the

controlled drug buy; nevertheless, the CI identified Fisher immediately after the

controlled buy and at trial.

       {¶11} Next, Fisher argues that his trafficking conviction is against the

manifest weight of the evidence because the only evidence demonstrating he sold

the bath salts was the CI’s less-than-credible testimony. In particular, Fisher

argues that the audio recording from the CI’s concealed wire was of very poor

quality and not played for the jury. (See id. at 153-155). While it is true that the

audio recording was of very poor quality, there was circumstantial evidence of the

drug transaction offered through the testimony of Detective Beach, who conducted

the controlled buy.     Prior to conducting the controlled buy, Detective Beach

searched the CI for money and contraband and found none; thereafter, Detective

Beach gave the CI $100 to make the controlled purchase, and he watched the CI

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enter and exit the store in question. (Id. at 150-155). When the CI returned to

Detective Beach a few minutes later, he came back with a white powdery

substance later identified as bath salts and no money. (Id. at 157); (State’s Ex. 3).

Detective Beach also testified that law enforcement discovered four of the five

twenty dollar bills he provided the CI in the cash register at the store in question.

(Id. at 163-164). Consequently, we are not convinced that Fisher’s aggravated

trafficking conviction is against the manifest weight of the evidence for this

reason.

       {¶12} Finally, in a singular sentence in his brief, Fisher argues that his

aggravated possession conviction was against the manifest weight of the evidence

because he thought the substance was jewelry cleaner, and therefore, he did not

knowingly possess the illegal bath salts. We disagree.

       {¶13} “A person acts knowingly, regardless of his purpose, when he is

aware that his conduct will probably cause a certain result or will probably be of a

certain nature.” R.C. 2901.22(B). The CI testified that, when he entered the

store, he asked Fisher for “bath salts,” and Fisher never disputed the nature of the

substance. (June 4, 2013 Tr. at 141-142). Detective Beach testified that the bath

salts were in a clear, unmarked plastic baggie, and criminals refer to bath salts as

jewelry cleaner. (Id. at 157-158). Detective Rushing, who executed a search of

the store in question, testified that he did not find any commercially labeled bath

salts or jewelry cleaner in the store. (Id. at 182). Detective Beach testified that

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commercially-labeled bath salts are in marked packaging and sell for much less

than $100. (Id. at 167). From this evidence, the jury could have reasonably

concluded that Fisher knowingly possessed illegal bath salts.

       {¶14} Fisher’s assignment of error is, therefore, overruled.

       {¶15} 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

ROGERS, and SHAW, J.J., concur.

/hlo




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