[Cite as State v. Perry, 2019-Ohio-3422.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                            CLERMONT COUNTY




STATE OF OHIO,                                    :

       Appellee,                                  :      CASE NO. CA2019-01-004

                                                  :             OPINION
    - vs -                                                       8/26/2019
                                                  :

REGINA PERRY,                                     :

       Appellant.                                 :




    CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                         Case No. 2018CR000114



D. Vincent Faris, Clermont County Prosecuting Attorney, Katherine Terpstra, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for appellee

W. Stephen Haynes, Clermont County Public Defender, Robert F. Benintendi, 302 East Main
Street, Batavia, Ohio 45103, for appellant



        PIPER, J.

        {¶ 1} Appellant, Regina Perry, appeals her conviction in the Clermont County Court

of Common Pleas for permitting drug abuse.

        {¶ 2} Perry leased an apartment on Mount Carmel Tobasco Road in Clermont

County Ohio and allowed her son, Tyler Liming, to live with her in the apartment. While living

with his mother, Liming began operating a drug trafficking business in which he used the
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"dark web" to order narcotics and other drugs. Those drugs were then delivered to the

apartment and purchased by Liming's customers. Oftentimes, Liming's customers would use

the recently purchased drugs with Liming in the apartment.

      {¶ 3} In October 2016, an officer responded to a 911 call reporting a "nonbreather,

possible overdose" at the apartment. When the officer arrived, Liming was attempting to

perform CPR on an unresponsive individual, Brendann Payne, who was lying on the

apartment's living room floor. Shortly thereafter, Payne flatlined at the apartment and was

unable to be saved by the paramedics. After an autopsy was performed, it was concluded

that Payne died from the ingestion of alcohol and a synthetic opiate known as U-47700. It

was further determined that Payne died within minutes of ingesting the drug.

      {¶ 4} While responding to the 911 call, the officer noticed an abandoned safe near

the apartment. Because the safe was unclaimed, the officer opened the safe and discovered

documentation and property belonging to Liming. The safe also contained an unlabeled

bottle of pills, which were stamped as Percocets, but were later identified as U-47700. The

safe was transported to the police department and the following day, one of Liming's friends

attempted to claim the safe. At that time, Liming's friend was interviewed and ultimately

disclosed information that prompted further investigation into Liming.

      {¶ 5} Around the same time as Payne's death, Perry was having difficulties living with

Liming, including issues arising from his drug abuse. As a result, Perry began searching for

an apartment closer to her boyfriend and began staying with him approximately three nights a

week. Thereafter, on January 30, 2017, Perry terminated her lease, and she and Liming

moved out of the apartment.

      {¶ 6} In September 2017 Liming was arrested on charges related to Payne's death.

Specifically, Liming was indicted for providing the U-47700 substance to Payne and for

committing a felony which ultimately resulted in Payne's death. In March 2018, Liming pled
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guilty to one count of involuntary manslaughter and one count of aggravated trafficking in

drugs. As a result of his plea, the Clermont County Court of Common Pleas found Liming

guilty of violating R.C. 2903.04(A), a felony of the first degree, and R.C. 2925.03(A)(2), a

felony of the third degree. Liming was also charged in a second case with engaging in a

pattern of corrupt activity, which he also pled guilty to. As a result of that plea, Liming was

found guilty of violating R.C. 2923.32(A)(1), a felony of the first degree.

       {¶ 7} In February 2018, shortly before Liming pled guilty, Perry was indicted for

permitting drug abuse in violation of R.C. 2925.13(B). According to the bill of particulars, the

state alleged Perry was "the lessee, occasional occupant, and a person having custody or

control of [the] apartment" and Perry allowed the apartment to be used by her son, Liming,

and those associated with him for the "trafficking in a variety of drugs including * * * L.S.D.,

alprazolam, hashish, and U-47700." The bill of particulars further indicated that Perry knew

the apartment was used by Liming's associates and customers to ingest drugs after they

were purchased, and this use resulted in Payne's death.

       {¶ 8} Perry pled not guilty to the charges and the matter proceeded to a jury trial.

The state presented eight witnesses in its case-in-chief, and Perry did not testify or present

any witnesses in her defense. The jury returned a guilty verdict, and the trial court sentenced

Perry to 120 days in jail and four years of community control. Perry now appeals, raising one

assignment of error.

       {¶ 9} Assignment of Error No. 1:

       {¶ 10} THE TRIAL COURT ERRED IN ENTERING A FINDING OF GUILTY

BECAUSE THE JURY'S VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE

       {¶ 11} Perry argues the guilty verdict was against the manifest weight of the evidence

because "the evidence presented * * * failed to attain the high degree of probative force and
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certainty required of a criminal conviction[.]" Specifically, Perry claims the jury lost its way in

concluding that Perry was the owner, lessee, or occupant or that she maintained custody,

control, or supervision of the apartment in 2016.

       {¶ 12} A manifest weight of the evidence challenge examines the "inclination of the

greater amount of credible evidence, offered at a trial, to support one side of the issue rather

than the other." State v. Barnett, 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, ¶

14. To determine whether a conviction is against the manifest weight of the evidence, the

reviewing court must look at the entire record, weigh the evidence and all reasonable

inferences, consider the credibility of the witnesses, and determine whether in resolving the

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.

Graham, 12th Dist. Warren No. CA2008-07-095, 2009-Ohio-2814, ¶ 66. In reviewing the

evidence, an appellate court must be mindful that the jury, as the original trier of fact, was in

the best position to judge the credibility of witnesses and determine the weight to be given to

the evidence. State v. Blankenburg, 197 Ohio App. 3d 201, 2012-Ohio-1289, ¶ 114 (12th

Dist.). Therefore, an appellate court will overturn a conviction due to the manifest weight of

the evidence "only in the exceptional case in which the evidence weighs heavily against the

conviction." Id.

       {¶ 13} Perry was convicted of permitting drug abuse in violation of R.C. 2925.13(B),

which provides that no "person who is the owner, lessee, or occupant, or who has custody,

control, or supervision, of premises or real estate, * * * shall knowingly permit the premises or

real estate * * * to be used for the commission of a felony drug abuse offense by another

person."

       {¶ 14} After reviewing the record, we find that Perry's conviction was not against the

manifest weight of the evidence. The state presented testimony from the owner and landlord
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of the apartment, who testified that Perry was renting the apartment in 2016. The lease

would expire and automatically renew unless Perry provided a 30-day written notice, which

the landlord indicated Perry did not do. According to the landlord, Perry was not staying at

the apartment "nearly as much" during the last three or four months of her lease, and he

estimated she stayed at the apartment one day a week during that time. Although Perry had

signed a lease at one point, the landlord testified those leases were disposed of after a

tenant moved out. Thus, he could not identify the exact date Perry moved in or out of the

apartment, but indicated she lived there for a total of two and a half years. Moreover,

although he could not refer to the physical lease, the landlord stated he was aware of when

Perry was at the apartment and confirmed it was neither sublet nor rented to anyone other

than Perry during 2016.

       {¶ 15} The state also presented testimony from Liming's ex-girlfriend, Kelsi Bingham.

Bingham testified that she dated Liming for four or five years, and that their relationship

ended in the fall of 2017. According to Bingham, in 2016 Liming was living with Perry in the

apartment and Perry's lease was ending. Because Liming could not continue to live in the

apartment on his own due to "past foreclosures," Perry allowed Liming to live in the

apartment under her lease on a month-to-month basis. Although Perry allowed Liming to

stay in the apartment, Bingham indicated Perry was in charge of the apartment, stayed at the

apartment "at least three days a week," and maintained property in the apartment including

bedding, furniture, clothing, and a ferret cage.

       {¶ 16} Bingham then described the various drug activity she saw take place in the

apartment, including the sale of drugs that were delivered in packages from the "dark web."

She noted that Perry was present when the drug activity occurred, and that Perry would

deliver packages of drugs to Liming that she had "intercepted." According to Bingham, Perry

was also present when Liming's customers were purchasing drugs and Perry brought a

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coworker to the apartment to purchase "pills" from Liming. Perry was in the apartment with

Liming and his friends when they were using drugs, and occasionally partook in the drug

usage with them. Bingham further indicated Perry was aware that Liming was dealing drugs

out of the apartment, and asked for a part of his profits, which he then paid to her.

       {¶ 17} Bingham further testified that Perry admitted the safe found near the apartment

the day of Payne's death belonged to Perry. Specifically, according to Bingham, Perry

contacted her a year after Payne's death and accused Bingham of stealing the safe from the

apartment on the night of Payne's death.

       {¶ 18} The state then presented testimony from the detective who was assigned to

investigate Liming and his associates, including Perry, after Payne's death. The detective

testified that through his investigation of Liming, he became aware that Perry was Liming's

mother, Payne's death occurred at Perry's residence, and that the residence was associated

with "a good portion" of the packages and drug activity.

       {¶ 19} During his investigation, the detective began monitoring the calls Liming made

while in custody. The jury heard several calls between Liming and Perry, and one between

Perry and the mother of Liming's child, who was also in custody at that time. During those

calls, Perry indicated Liming was charged with involuntary manslaughter for someone dying

in the apartment, which she referred to as "our house." She expressed concern that charges

would be brought against her because it was at her apartment that "everything" was being

done, and because she knew what was going on. She also exhibited intimate knowledge of

Liming's drug trafficking. For example, Perry indicated she knew Liming was receiving drugs

through the mail, was aware of which associates were helping Liming sell drugs, and knew

that Liming was selling drugs out of the apartment. She further noted to Liming that he could

receive additional indictments for packages that were delivered after he was initially charged.

Throughout each recording Perry appeared worried and reiterated on several occasions that
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because it was "her house," she could be charged.

       {¶ 20} The detective also testified to certain Facebook records he retrieved from

Perry's account, including messages between Perry and various individuals. The detective

read messages to the jury from October 2016, shortly before Payne's death. In those

messages, Perry told a friend that Liming was staying at her house on "Mount Carmel" and

that the friend could stop by some time. To another friend, Perry indicated that she had to

stay with her boyfriend that evening because Liming was "tripping on acid." Perry then stated

that she had found an apartment less than one mile from her boyfriend. However, messages

from November 2016 revealed Perry was still staying at the apartment three or four days a

week at that time, and that her new apartment was not ready.

       {¶ 21} The jury also heard messages between Perry and Liming which took place

throughout January 2017. In those messages Perry stated she would inform the landlord

that Liming was leaving and confirmed that Liming and Bingham did not sign a new lease.

She also discussed a dispute she had with the landlord, wherein she told him to quit calling

Bingham because it was Perry's apartment, not Bingham's apartment, and Perry further

indicated the only harm the landlord could do was to her credit. By the end of January, Perry

wrote that the landlord was threatening to evict her, and on January 30, 2017 she went to

"get [her] stuff out of the apartment."

       {¶ 22} The detective also read messages from Perry describing Liming's charges and

Payne's death. In those messages, Perry indicated Liming was charged with involuntary

manslaughter because when Liming was living in her apartment "some kid" died in it. She

further wrote that she was scared because it was her apartment.

       {¶ 23} Near the end of his testimony, the detective discussed the charges that were

brought against Liming and the convictions that stemmed from those charges. He confirmed

that the convictions against Liming were based, at least in part, on the detective's
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investigation, which was based upon activities that happened at the apartment.

      {¶ 24} In light of the evidence presented at trial, we find the jury did not lose its way in

concluding that Perry was the owner, lessee or occupant of the apartment or that she had the

requisite custody, control, or supervision over the apartment to satisfy R.C. 2925.13(B).

Perry first argues that because her lease expired, she was a "tenant at sufferance" of the

apartment, and therefore, could not be considered a lessee under the statute. Perry also

claims she could not be described as having control or supervision of the apartment because

she had moved out of the apartment by the fall of 2016, and the trafficking of drugs began

thereafter. We reject Perry's arguments.

      {¶ 25} The landlord's testimony, if believed, established that after Perry's lease

expired, it was automatically renewed every 30 days unless Perry provided the landlord

written notice that she was terminating the lease. Perry did not provide the landlord with

such notice and did not move out of the apartment until January 2017, when the landlord

threatened to evict her. Additionally, the record indicates the only leaseholder for the

apartment was Perry, which is a fact uncontroverted by Perry. Moreover, it is evident that

Perry was aware she was responsible for the apartment, given that she directed the landlord

to express any concerns regarding the apartment to her, not Liming or Bingham, and she

knew her credit could be affected. Additionally, the statements made by Perry in her

Facebook messages and phone calls confirm that she continued to consider the apartment

as her home in the fall of 2016, even when staying with her boyfriend a few days a week.

The record further shows that Perry was free to come and go as she pleased and maintained

personal belongings in the apartment until late January 2017.

      {¶ 26} Moreover, the record shows Perry was acutely aware of Liming's drug

trafficking prior to leaving the apartment. Perry displayed knowledge of Liming's "dark web"

packages and that drugs were being delivered to the apartment through the mail. The record
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further indicates Perry knew Liming was selling drugs from the apartment and that she

participated in the drug trafficking by providing customers to Liming and by receiving a portion

of Liming's profits. Furthermore, the jury heard Perry state on the recordings that she was

concerned with the activities she allowed to occur at her apartment and was worried that she

would be charged for her involvement.

       {¶ 27} In light of the above, Perry cannot now claim to have fully vacated the

apartment and surrendered all custody, control, and supervision of the apartment to Liming at

the time of Payne's death. As a result, we find that the evidence displaying her access to

and consistent presence at the apartment supported the jury's finding that Perry was the

lessee or occupant of the apartment or that she had the requisite custody, control, or

supervision over the apartment in the fall of 2016.

       {¶ 28} Accordingly, the jury's guilty verdict and Perry's conviction was not against the

manifest weight of the evidence, and Perry's assignment of error is overruled.

       {¶ 29} Judgment affirmed.


       S. POWELL, P.J., and M. POWELL, J., concur.




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