[Cite as State v. Triplett, 2019-Ohio-2489.]




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


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                 CASE NO. 8-18-41

        v.

JONATHAN L. TRIPLETT,                                       OPINION

        DEFENDANT-APPELLANT.


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                 CASE NO. 8-18-42

        v.

JONATHAN L. TRIPLETT,                                       OPINION

        DEFENDANT-APPELLANT.


                  Appeals from Logan County Common Pleas Court
                  Trial Court Nos. CR 18 02 0029 and CR 18 04 0107

                                       Judgments Affirmed

                              Date of Decision:   June 24, 2019


APPEARANCES:

        Eric J. Allen for Appellant

        Sarah J. Warren for Appellee
Case Nos. 8-18-41 and 8-18-42



ZIMMERMAN, P.J.

       {¶1} Defendant-appellant, Jonathan L. Triplett (“Triplett”), appeals the

September 4, 2018 judgment entry of the Logan County Court of Common Pleas,

Criminal Division, in case number CR18-02-0029 finding him guilty of two counts

of trafficking in crack cocaine and one count of possession of crack cocaine (with a

forfeiture specification) and the September 4, 2018 judgment entry of the Logan

County Court of Common Pleas, Criminal Division, in case number CR18-04-0107

finding him guilty of one count of trafficking in powder cocaine (with a forfeiture

specification). On appeal, Triplett asserts three assignments of error. For the

reasons that follow, we affirm the rulings of the trial court.

       {¶2} The relevant facts in this appeal are not in dispute and reveal that shortly

after Triplett was released from prison (for time served as a result of a drug

trafficking conviction in Logan County), Triplett sold cocaine to two confidential

informants working in collaboration with the Logan County Joint Drug Task Force

(“Task Force”). (August 28, 2018 Tr. at 102-121, 123-126); (September 4, 2018

Tr. at 4, 9, 10, 17). On February 3, 2018, Triplett was arrested as a result of the

controlled drug buys and was found to be in possession of two hundred and eighty-

four dollars ($284.00) in cash and two (2) cell phones. (August 28, 2018 Tr. at 177,

190). Thereafter, the Task Force obtained a search warrant for Triplett’s apartment

(where he cohabitated with his girlfriend), wherein crack cocaine was discovered in

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Case Nos. 8-18-41 and 8-18-42



an upstairs bedroom dresser drawer. (August 28, 2018 Tr. at 132, 133, 135, 136,

141, 144, 180, 206, 207, 211, 215, 218). Finally, subsequent to his indictment in

case number CR18-02-0029 and while he was released on bond, Triplett was

arrested for another controlled drug buy for selling powder cocaine to a CI. (August

28, 2018 Tr. at 154-165, 187, 189); (September 4, 2018 Tr. at 9, 11). During that

arrest, Triplett was found in possession of four hundred and thirty-eight dollars

($438.00) in cash. (August 28, 2018 Tr. at 177, 190).

       {¶3} On February 13, 2018, the Logan County Grand Jury indicted Triplett

in case number CR18-02-0029 on: Count One, trafficking in cocaine, in violation

of R.C. 2925.03(A)(1), (C)(4)(a), a felony of the fifth degree; Count Two,

trafficking in cocaine, in violation of R.C. 2925.03(A)(1), (C)(4)(a), a felony of the

fifth degree; and Count Three, possession of cocaine, in violation of R.C.

2925.11(A), (C)(4)(b), a felony of the fourth degree, with a specification for

forfeiture of money in a drug case in violation of R.C. 2941.1417(A). (Case No.

CR18-02-0029, Doc. No. 4). Triplett was later indicted by the Logan County Grand

Jury on April 10, 2018 in case number CR18-04-0107 for one count of trafficking

in cocaine, in violation of R.C. 2925.03(A)(1), (C)(4)(a), a felony of the fifth degree,

with a specification for forfeiture of money in a drug case in violation of R.C.

2941.1417(A). (Case No. CR18-04-0107, Doc. No. 2).



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Case Nos. 8-18-41 and 8-18-42



       {¶4} The trial court consolidated Triplett’s cases and the matters proceeded

to trial on August 28, 2018 with the jury returning a guilty verdict on all counts in

case number CR18-02-0029 and finding the two hundred and eight-four dollars

($284.00) was subject to forfeiture. (August 28, 2018 Tr. at 286-290); (Case No.

CR18-02-0029, Doc. Nos. 94-97). Additionally, the jury found Triplett guilty on

the single count indicted in case number CR18-04-0107 with a finding that the four

hundred and thirty-eight dollars ($438.00) was also subject to forfeiture. (August

28, 2018 Tr. at 290, 291); (Case No. CR18-04-0107, Doc. Nos. 66, 67).

       {¶5} At Triplett’s sentencing on September 4, 2018, the trial court sentenced

him in case number CR18-02-0029 to 12 months in prison on Count One, 12 months

in prison on Count Two, and 18 months in prison on Count Three of the indictment.

(Case No. CR18-02-0029, Doc. No. 103). The trial court further ordered Triplett to

serve the terms consecutively for an aggregate of 42 months in prison. (Id.). The

trial court, then, sentenced Triplett to 12 months in prison on the single count of the

indictment in case number CR18-04-0107 and ordered that term to run consecutive

to the 42-month sentence (in case number CR18-02-0029) totaling 54 months in

prison. (Case No. CR18-04-0107, Doc. No. 73).

       {¶6} Triplett filed his notice of appeal in both cases on September 14, 2018,

which we consolidated for purposes of appeal. (Case No. CR18-02-0029, Doc. No.



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Case Nos. 8-18-41 and 8-18-42



111); (Case No. CR18-04-0107, Doc. No. 82). Triplett raises three assignments of

error for our review.

                            Assignment of Error No. I

       The court erred by imposing a sentence unsupported by the
       record per O.R.C. § 2929.14 (sic).

                            Assignment of Error No. II

       The verdict in this case is against the sufficiency of the evidence
       and should be reversed because it violates the Fifth, Sixth, and
       Fourteenth amendments to the United States Constitution, and
       Article I, Section 10 of the Constitution of the State of Ohio.

                           Assignment of Error No. III

       The verdict in this case is against the manifest weight of the
       evidence and should be reversed because it violates the Fifth,
       Sixth, and Fourteenth Amendments to the United States
       Constitution, and Article I, Section 10 of the Constitution of the
       State of Ohio.

       For the reasons that follow, we affirm the trial court.

                            Assignment of Error No. I

       The court erred by imposing a sentence unsupported by the
       record per O.R.C. § 2929.14 (sic).

                                Standard of Review

       {¶7} “Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence

‘only if it determines by clear and convincing evidence that the record does not

support the trial court’s findings under relevant statutes or that the sentence is


                                         -5-
Case Nos. 8-18-41 and 8-18-42



otherwise contrary to law.’” State v. Taflinger, 3d Dist. Logan No. 8-17-20, 2018-

Ohio-456, ¶ 14, citing State v. Nienberg, 3d Dist. Putnam Nos. 12-16-15 and 12-16-

16, 2017-Ohio-2920, ¶ 8 quoting State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-

1002, 59 N.E.3d 1231, ¶ 1.

       Clear and convincing evidence is that measure or degree of proof
       which is more than a mere ‘preponderance of the evidence,’ but not
       to the extent of such certainty as is required ‘beyond a reasonable
       doubt’ in criminal cases, and which will produce in the mind of the
       trier of facts a firm belief or conviction as to the facts sought to be
       established.

State v. Sullivan, 3d Dist. Hancock No. 5-17-09, 2017-Ohio-8937, ¶ 12, quoting

Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118, (1954), paragraph three of the

syllabus.

       {¶8} “Except as provided in * * * division (C) of section 2929.14, * * * a

prison term, jail term, or sentence of imprisonment shall be served concurrently with

any other prison term, jail term, or sentence of imprisonment imposed by a court of

this state, another state, or the United States.” R.C. 2929.41(A).

       Revised Code 2929.14(C) provides:

       (4) If multiple prison terms are imposed on an offender for convictions
       of multiple offenses, the court may require the offender to serve the
       prison terms consecutively if the court finds that the consecutive
       service is necessary to protect the public from future crime or to
       punish the offender and that consecutive sentences are not
       disproportionate to the seriousness of the offender’s conduct and to
       the danger the offender poses to the public, and if the court also finds
       any of the following:

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Case Nos. 8-18-41 and 8-18-42




       (a) The offender committed one or more of the multiple offenses while
       the offender was awaiting trial or sentencing, was under a sanction
       imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the
       Revised Code, or was under post-release control for a prior offense.

       (b) At least two of the multiple offenses were committed as part of
       one or more courses of conduct, and the harm caused by two or more
       of the multiple offenses so committed was so great or unusual that no
       single prison term for any of the offenses committed as part of any of
       the courses of conduct adequately reflects the seriousness of the
       offender’s conduct.

       (c) The offender’s history of criminal conduct demonstrates that
       consecutive sentences are necessary to protect the public from future
       crime by the offender.

R.C. 2929.14(C)(4)(a)-(c).

       {¶9} Revised Code 2929.14(C)(4) requires the trial court to make specific

findings on the record when imposing consecutive sentences. State v. Hites, 3d Dist.

Hardin No. 6-11-07, 2012-Ohio-1892, ¶ 11; State v. Peddicord, 3d Dist. Henry No.

7-12-24, 2013-Ohio-3398, ¶ 33.         Specifically, the trial court must find: (1)

consecutive sentences are necessary to either protect the public or punish the

offender; (2) the sentences would not be disproportionate to the offense committed;

and (3) one of the factors in R.C. 2929.14(C)(4)(a), (b), or (c) applies. (Id.; Id.).

       {¶10} The trial court must state the required findings at the sentencing

hearing when imposing consecutive sentences and incorporate those findings into

its sentencing entry. State v. Sharp, 3d Dist. Putnam No. 12-13-01, 2014-Ohio-


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Case Nos. 8-18-41 and 8-18-42



4140, ¶ 50, citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d

659, ¶ 29. A trial court “has no obligation to state reasons to support its findings”

and is not “required to give a talismanic incantation of the words of the statute,

provided that the necessary findings can be found in the record and are incorporated

into the sentencing entry.” Bonnell at ¶ 37.

                                      Analysis

       {¶11} In sentencing Triplett, the trial court considered the overriding

principles and purposes of felony sentencing at the sentencing hearing and again in

each of its judgment entries. (September 4, 2018 Tr. at 12-15); (Case No. CR18-

02-0029, Doc. No. 103); (Case No. CR18-04-0107, Doc. No. 73). Further, the

sentences imposed by the trial court were within the statutory ranges for each

offense. See R.C. 2929.14(A)(3)(b)(4)-(5). The record demonstrates that the trial

court determined that Triplett had a history of committing drug offenses, including

while he was under probation and parole supervision, within thirty (30) days of

being released from prison, and while he was awaiting trial on the instant offenses.

(August 28, 2018 Tr. at 102-121, 123-126); (September 4, 2018 Tr. at 4, 9, 10, 17).

       {¶12} Nevertheless, Appellant contends that the trial court erred by using

Triplett’s presentence investigation report (“PSI”) from 2016. We disagree. To this

contention, the record reflects that the trial court was in the process of ordering a

new PSI after Triplett was convicted, when Triplett requested to proceed (with

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Case Nos. 8-18-41 and 8-18-42



sentencing) to “get it over with.” (August 28, 2018 Tr. at 292, 293). Even though

an updated PSI may have flushed out more facts related to the instant offenses, the

failure to order an updated PSI was not contrary to law, especially, in light of the

fact that, Triplett had just been released from prison when some of his new charges

were committed, and while he was released on bond when he committed the other

charge. Thus, Triplett has not provided us with how he was prejudiced by the trial

court’s failure to order an updated PSI in light of these facts.

       {¶13} Finally, the appellant argues that the trial court erred in its finding

(that) he showed no remorse during the course of the sentencing hearing.

Specifically, Appellant opines:

       [t]he lack of remorse was mentioned time and time again by the Court,
       despite the fact that Triplett actively showed a sense of remorse and
       willingness to be accountable for his action, especially for the sake of
       his four children.

(Emphasis added.) (Appellant’s Brief at 4). In our review, we note that the appellant

failed to direct us to specific instances in the record to support his assertion that the

trial court erred by failing to consider Triplett’s remorse. We recognize that the trial

court stands in the best position to determine the earnestness of those that stand

before the bench and to weigh their credibility. State v. Nutter, 3d Dist. Wyandot

No. 16-01-06, 2001-Ohio-2253, 2001 WL 961748, *2. Here, we cannot find that

the trial court’s determination that Triplett’s reoffending, both within thirty (30)


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Case Nos. 8-18-41 and 8-18-42



days of his release from prison and while out on bond, was an inference that

demonstrated an absence of genuine remorse nor can we find this implication was

contrary to law.

       {¶14} Accordingly, Appellant’s first assignment of error is overruled.

                             Assignment of Error No. II

       The verdict in this case is against the sufficiency of the evidence
       and should be reversed because it violates the Fifth, Sixth, and
       Fourteenth amendments to the United States Constitution, and
       Article I, Section 10 of the Constitution of the State of Ohio.

       {¶15} Next, we turn to Triplett’s final two assignments of error. Here,

Triplett only argues that the verdicts in Count Two and Three in case number CR18-

02-0029 were not support by sufficient evidence and are also against the manifest

weight of the evidence. Thus, we need not address whether Count One in case

number CR18-02-0029 and Count One in case number CR18-04-0107 were not

supported by sufficient evidence or were against the manifest weight of the

evidence. Manifest “weight of the evidence and sufficiency of the evidence are

clearly different legal concepts.” State v. Frye, 3d Dist. 2018-Ohio-894, ¶ 12, citing

State v. Thompkins, 78 Ohio St.3d 380, 389, 678 N.E.2d 541, 547 (1997),

superseded by state constitutional amendment on other grounds as stated in State v.

Smith, 80 Ohio St.3d 89, 684 N.E.2d 668 (1997). Therefore, we will address each

legal concept, separately.


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Case Nos. 8-18-41 and 8-18-42



                 Standard of Review (Sufficiency of the Evidence)

       {¶16} “Whether there is legally sufficient evidence to sustain a verdict is a

question of law.” State v. Davis, 3d Dist. Seneca No. 13-16-30, 2017-Ohio-2916, ¶

14, citing State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19

citing Thompkins at 386. “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.”

State v. Carpenter, 3d Dist. Seneca No. 13-18-16, 2019-Ohio-58, ¶ 13, citing State

v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1981), paragraph two of the syllabus,

superseded by state constitutional amendment on other grounds, State v. Smith, 80

Ohio St.3d 89, 684 N.E.2d 668 (1997). Accordingly, “[t]he 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.” Id. “In deciding if the evidence was sufficient, we

neither resolve evidentiary conflicts nor assess the credibility of witnesses, as both

are functions reserved for the trier of fact.” State v. Jones, 1st Dist. Hamilton Nos.

C-120570 and C-120571, 2013-Ohio-4775, ¶ 33, citing State v. Williams, 1st Dist.

Hamilton No. C-110097, 2011-Ohio-6267, ¶ 25. See also State v. Berry, 3d Dist.

Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19 (“Sufficiency of the evidence is a test

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Case Nos. 8-18-41 and 8-18-42



of adequacy rather than credibility or weight of the evidence.”), citing Thompkins

at 386.

                           Analysis (Sufficiency of the Evidence)

          {¶17} We begin by addressing Triplett’s sufficiency of the evidence

argument as it relates to case number CR18-02-0029 and his conviction for Count

Two, trafficking in cocaine.

                  (Case No. CR18-02-0029, Count Two, trafficking in cocaine)

          R.C. 2925.03 provides, in pertinent part:

          (A) No person shall knowingly do any of the following:

          (1) Sell or offer to sell a controlled substance or a controlled
          substance analog;

          (C) Whoever violates division (A) of this section is guilty of one of
          the following:

          (4) If the drug involved in the violation is cocaine or a compound,
          mixture, preparation, or substance containing cocaine, whoever
          violates division (A) of this section is guilty of trafficking in cocaine.
          The penalty for the offense shall be determined as follows:

          (a) Except as otherwise provided in division (C)(4)(b), (c), (d), (e),
          (f), or (g) of this section, trafficking in cocaine is a felony of the fifth
          degree, and division (B) of section 2929.13 of the Revised Code
          applies in determining whether to impose a prison term on the
          offender.

R.C. 2925.03(A)(1)(C)(4)(a).




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Case Nos. 8-18-41 and 8-18-42



       {¶18} To prove that Triplett committed the offense of trafficking in cocaine,

the State called two witnesses, Tyler Queen (“Queen”), the confidential informant,

and Detective Craig Comstock (“Detective Comstock”) of the Bellefontaine Police

Department.

       {¶19} Appellant argues that the only evidence offered by the State regarding

the January 17th trafficking conviction was Queen’s testimony, audio surveillance

with poor audio quality and static, and a “dark” video. We disagree.

       {¶20} The record reveals that late in the afternoon on January 17, 2018,

Queen purchased $80 dollars’ worth of crack cocaine from Triplett during a

controlled narcotics-operation working in collaboration with the Task Force.

(August 28, 2018 Tr. at 111, 115, 175, 223). (See also State’s Ex. 4). Queen

testified that he arrived at Triplett’s apartment, on foot, after texting Triplett to

arrange the purchase of crack cocaine. (Id. at 111-113, 116-118, 230). (See also

State’s Ex. 25). Queen waited behind the apartment for Triplett to appear. (Id. at

117). (See also State’s Ex. 25). Triplett exited the front door of the apartment and

walked to the back of the apartment complex with a bag of crack cocaine in his

hand. There, the two exchanged the money for the drugs. (Id. at 116-118, 230).

(See also State’s Ex. 25). After the drug buy concluded, Queen turned and walked

away. (Id. at 115, 118, 230). (See also State’s Ex. 25). Queen acknowledged that

the video of the transaction was too dark to really see anything. (Id. at 115, 122).

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Case Nos. 8-18-41 and 8-18-42



However, the debriefing audio recording (containing Queen’s statements to Task

Force deputies) made on January 17, 2018 at 6:31p.m. following the controlled buy

was played in open court to the jury. (Id. at 115-117, 230). (See also State’s Ex.

25).

           {¶21} On cross-examination, Queen testified that he was required to change

clothes prior to the operation into designated clothing provided by the Task Force.

(Id. at 122).          On re-direct, Queen testified that he was wearing audio recording

equipment provided by the Task Force at the time of the drug buy. (Id. at 124-126,

230). (See also State’s Ex. 24).

           {¶22} Detective Comstock testified that he was present for the entire

operation, pre- and post-operation, and that Queen was under audio surveillance

during the entire operation and video surveillance, when possible, for Queen’s

safety. (Id. at 172, 174, 175). Detective Comstock also testified that he provided

Queen with the $80 for the operation which was photographed and admitted into

evidence as State’s Exhibit 4. (Id. at 175, 223). (See also State’s Ex. 4). Detective

Comstock also testified that after the drug buy Queen gave him the drugs (that were

purchased from Triplett) which were immediately weighed1 and field tested2. (Id.);

(Id.).



1
    The drugs weighed .7 grams. (August 28, 2018 Tr. at 175).
2
    The drugs field tested positive, blue indicating positive for cocaine. (Id.)

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Case Nos. 8-18-41 and 8-18-42



       {¶23} In addition to the audio and video evidence of the drug buy, which we

find to be of poor quality, the jury heard the testimonies of Queen and Detective

Comstock and as well as the audio debriefing.         Further, Queen’s subsequent

possession of the cocaine and the absence of the marked money (provided by the

Task Force) is circumstantial evidence that a drug transaction involving Queen and

Triplett took place.     Nevertheless, Appellant argues Queen’s credibility is

questionable due to his criminal history and his desire to avoid a four-month

sentence for a parole violation as a result of a recent relapse. (Id. at 99-101) (See

also Appellant’s Brief at 8). We find this argument without merit. Sufficiency is a

quantitative question not a qualitative one. See State v. Berry, 3d Dist. Defiance

No. 4-12-03, 2013-Ohio-2380, ¶ 19 (“[s]ufficiency of the evidence is a test of

adequacy rather than credibility or weight of the evidence.”), citing Thompkins at

386. Even though, the credibility of Queen was at issue, the jury is the trier of fact

and is permitted to judge the credibility of the witnesses accordingly. See State v.

DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d 212, 213 (1967).

       {¶24} Thus, we conclude that the State presented sufficient evidence, absent

the audio and video content, that Triplett knowingly sold a controlled substance to

Queen.




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Case Nos. 8-18-41 and 8-18-42



             (Case No. CR18-02-0029, Count Three, possession of cocaine)

      {¶25} Next, we address Triplett’s sufficiency of the evidence argument as to

Count Three, possession of cocaine in case number CR18-02-0029.

      R.C. 2925.11(A), (C)(4)(b), provides, in relevant part:

      (A) No person shall knowingly obtain, possess, or use a controlled

      substance or a controlled substance analog.

      (C) Whoever violates division (A) of this section is guilty of one of

      the following:

      (4) If the drug involved in the violation is cocaine or a compound,

      mixture, preparation, or substance containing cocaine, whoever

      violates division (A) of this section is guilty of possession of cocaine.

      The penalty for the offense shall be determined as follows:

      (b) If the amount of the drug involved equals or exceeds five grams

      but is less than ten grams of cocaine, possession of cocaine is a felony

      of the fourth degree, and division (B) of section 2929.13 of the

      Revised Code applies in determining whether to impose a prison term

      on the offender.

R.C. 2925.11(A),(C)(4)(b).

      {¶26} Appellant argues that the evidence does not support that: Triplett was

a resident of Apartment 5 located at 555 Newel Street; and that Triplett possessed

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Case Nos. 8-18-41 and 8-18-42



or used the crack cocaine discovered during the execution of the search warrant at

the apartment. In answer to these questions, the State presented two witnesses

assigned to the Task Force, Detective Brent Joseph (“Detective Joseph”) of the

Logan County Sheriff’s Office and Detective Comstock of the Bellefontaine Police

Department.

        {¶27} Detective Joseph testified that the search warrant was executed by the

Task Force on February 3, 2018 at 555 Newel Street, Apartment 5, in Bellefontaine,

Ohio, and that the apartment was leased to Triplett’s girlfriend, Kaitlyn Whiting.

(August 28, 2018 Tr. at 132, 133, 140, 141). During the search of the apartment,

the baggie containing crack cocaine was located in a dresser drawer3. (Id. at 135,

141, 142). Detective Joseph testified that the Task Force had the apartment under

surveillance, and that, Triplett was seen coming to and from the apartment on a daily

basis4. (Id. at 144).

        {¶28} Detective Comstock testified to personally seeing Triplett going in and

out of the apartment daily and to Triplett parking his vehicles at the apartment

overnight. (Id. at 172, 176, 203, 207, 211, 215). He further testified that some of

Triplett’s clothing was located in the bedroom where the drugs were located. (Id.



3
 The dresser drawer contained both male and female clothing. (August 28, 2018 Tr. at 141, 142).
4
 It is worth noting that the location of the controlled narcotics-operations for the January 5th and January
17th drug buys were also at the 555 Newel Street address just outside of the apartment complex. (Id. at 113,
114, 144).


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Case Nos. 8-18-41 and 8-18-42



at 214). More importantly, Detective Comstock interviewed Triplett (after the

execution of the search warrant) wherein Triplett admitted that the drugs located in

the apartment were his. (Id. at 192).

       {¶29} The record supports that the appellant was more than a casual visitor

of the apartment by virtue of his daily appearances there, by parking his vehicles at

the apartment overnight, and through the discovery of his clothing found in the

bedroom where the drugs were found. More importantly, Triplett admitted to

Detective Comstock that the drugs found in the bedroom dresser belonged to him.

       {¶30} Viewing the evidence in the light most favorable to the State, Triplett’s

trafficking and possession convictions in Count Two and Count Three of the

indictment in case number CR18-02-0029 are grounded on sufficient evidence.

                           Assignment of Error No. III

       The verdict in this case is against the manifest weight of the
       evidence and should be reversed because it violates the Fifth,
       Sixth, and Fourteenth Amendments to the United States
       Constitution, and Article I, Section 10 of the Constitution of the
       State of Ohio.

              Standard of Review (Manifest Weight of the Evidence)

       {¶31} Appellate Courts “must review the entire record, weigh the evidence

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

determine whether in resolving conflicts in the evidence, the factfinder ‘clearly lost

its way and created such a manifest miscarriage of justice that the conviction must

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Case Nos. 8-18-41 and 8-18-42



be reversed and a new trial ordered.’” State v. McBeth, 3d Dist. Seneca No. 13-18-

19, 2019-Ohio-59, ¶ 7 citing, State v. Brentlinger, 3d Dist. Allen No. 1-16-23, 2017-

Ohio-2588 ¶ 36, quoting Thompkins at 387.

       {¶32} An appellate 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. DeHass at 231. We sit as the “thirteenth juror”. State v. McBeth, 3d

Dist. Seneca No. 13-18-19, 2019-Ohio-59, ¶ 7 citing, State v. Davis, 3d Dist. Seneca

No. 13-16-30, 2017-Ohio-2916, ¶ 17, quoting State v. Thompkins, 78 Ohio St.3d

380, 387, 678 N.E.2d 541, 546 (1997); see also State v. Davis, 3d Dist. Allen No.

1-17-44 and 1-17-45, 2018-Ohio-4368, 2018 WL 5433883 ¶ 62, citing, Phelps v.

Horn’s Crop Serv. Ctr., 3rd Dist. Wyandot No. 16-89-8, 1990 WL 157282 *2

(holding that the choice between credible witnesses and their conflicting testimony

rests solely with the finder of fact and an appellate court may not substitute its own

judgment for that of the finder of fact).

                    Analysis (Manifest Weight of the Evidence)

       At the outset, we note App.R. 16(A)(7) provides:

       (A) Brief of the Appellant. The appellant shall include in its brief,
       under the headings and in the order indicated, all of the following:

       ***

       (7) An argument containing the contentions of the appellant with
       respect to each assignment of error presented for review and the

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Case Nos. 8-18-41 and 8-18-42



       reasons in support of the contentions, with citations to the authorities,
       statutes, and parts of the record on which appellant relies. The
       argument may be preceded by a summary.

(Emphasis added.) App.R. 16(A)(7). Under this assignment, Appellant directs us

to the standard of review relative to his argument in assignment of error two. More

importantly, Appellant fails to provide any authority to support his proposition that

the verdict in this case was against the manifest weight of the evidence. Thus, the

appellant has failed to present a legal argument in this assignment, rendering his

assignment of error a nullity pursuant to App.R. 12(A)(2).

       {¶33} Nevertheless, we will address this assignment of error on its merit as

to Count Two (trafficking in cocaine) and Count Three (possession of cocaine) in

case number CR18-02-0029. In our review, we acknowledge eight factors to assist

us in determining whether a verdict is against the manifest weight of the evidence.

They are:

       1.   A reviewing court is not required to accept the incredible as true;
       2.   Whether the evidence is uncontroverted;
       3.   Whether a witness was impeached;
       4.   What was not proved;
       5.   Certainty of the evidence;
       6.   Reliability of evidence;
       7.   Whether witness’ testimony is self-serving;
       8.   And whether evidence is vague, uncertain, conflicting, and
            fragmentary.




                                         -20-
Case Nos. 8-18-41 and 8-18-42



(Emphasis added.) State v. Davis, 3d Dist. Allen No. 1-17-44 and 1-17-45, 2018-

Ohio-4368, ¶ 63, citing State v. Mattison, 23 Ohio App.3d 10, 14, 490 N.E.2d 926

(8th Dist.1985).

          (Case No. CR18-02-0029, Count Two, trafficking in cocaine)

                           (Uncontradicted Evidence)

      {¶34} In the case before us, the appellant’s evidence did not contradict the

State’s evidence concerning the January 17th controlled drug buy as set forth in

Count Two. The record supports that Queen, the State’s confidential informant, met

Triplett behind Triplett’s apartment complex on Newel Street and engaged in a drug

transaction. Triplett and Queen were under surveillance by the Task Force during

the entire operation. After the drug buy concluded, Queen was debriefed by

Detective Comstock and handed over the drugs (to Detective Comstock) that he

purchased from Triplett.    The drugs field tested positive for cocaine, were

photographed, weighed, and were sent to the Ohio Bureau of Criminal Investigation

(“BCI”) where they were found to be cocaine.

                             (Impeached Witnesses)

      {¶35} A review of the record reveals that no witness for the State was

successfully impeached.




                                      -21-
Case Nos. 8-18-41 and 8-18-42



                             (Self-Serving Testimony)

       {¶36} Appellant argues that Queen’s testimony was self-serving.           We

conclude that Queen did benefit from the work he provided as a CI for the Task

Force. Thus, he may have had credibility issues as to why he was working with the

Task Force, but ultimately, the jury was permitted to determine the weight of that

credibility. Thus, as to this factor, Appellant’s argument is not compelling. (See

August 28, 2018 Tr. at 129, 130).

            (Vague, Uncertain, Conflicting, or Fragmentary Evidence)

       {¶37} The record does not support a finding that the evidence was vague,

uncertain, conflicting, or fragmentary. Each witness that testified for the State

provided information to develop the facts at hand. Queen, the State’s confidential

informant, testified that he purchased crack cocaine from the defendant at a location

adjacent to Triplett’s apartment located at 555 Newel Street. Detectives Joseph and

Comstock testified that they participated in the controlled drug buys with Triplett,

and that, the Task Force conducted surveillance of Triplett before, during, and after

the buys. Further, Detective Comstock testified that Triplett admitted that the drug

buys found in the apartment (on Newell Street) were his.

       {¶38} Thus, upon our review, we conclude that the weight of the evidence

supports Appellant’s conviction for the offense of trafficking in cocaine committed

on January 17th. We further conclude that the jury did not lose its way and create

                                        -22-
Case Nos. 8-18-41 and 8-18-42



such a manifest miscarriage of justice in convicting Appellant of trafficking in

cocaine as it relates to Count Two of the indictment.

       {¶39} Accordingly, we overrule Appellant’s third assignment of error as it

relates to Count Two in case number CR18-02-0029.

          (Case No. CR18-02-0029, Count Three, possession in cocaine)

       {¶40} Next, we turn to Count Three, possession of cocaine. Here, Appellant

argues that the apartment, the dresser, and the drugs found were not his and could

have been accessed by someone else. (Appellant’s Brief at 9). Once again, using

the factors outlined above we will review whether the weight of the evidence the

State produced establishes that the appellant had possession of the cocaine located

in the dresser drawer.

                            (Uncontradicted Evidence)

       {¶41} Initially, we note that Appellant did not present evidence that

contradicted the State’s evidence at trial. Even though the appellant contends that

the crack cocaine located in the dresser drawer in the upstairs bedroom of apartment

was not his, Appellant’s admission (to Detective Comstock) and the evidence

introduced by the State indicate otherwise.

                              (What was not proved)

       {¶42} Appellant argues that others may have had an opportunity to access

the drugs in the dresser drawer. However, the record is silent that anyone ever did

                                       -23-
Case Nos. 8-18-41 and 8-18-42



access the drawer, other than, Triplett’s live-in girlfriend, who had no involvement

in the drug trade despite her relationship with Triplett. (See August 28, 2018 Tr. at

144, 145). Relative to this argument (of opportunity) the record supports that only

Triplett had access to the dresser drawer which contained the crack cocaine and was

concurrently convicted of drug trafficking in crack cocaine adjacent to the very

same apartment complex. We are not required “to accept the incredible as true.”

State v. Davis, 3d Dist. Allen No. 1-17-44 and 1-17-45, 2018-Ohio-4368, ¶ 63,

citing State v. Mattison, 23 Ohio App.3d 10, 14, 490 N.E.2d 926 (8th Dist.1985),

e.g. Schaefer v. Cincinnati, 75 Ohio App. 288, 292, 62 N.E.2d 102 (1st Dist.1945).

                              (Impeached Witnesses)

       {¶43} A review of the record reveals that no witness for the State was

successfully impeached.

                             (Self-Serving Testimony)

       {¶44} The record reveals that there was no self-serving testimony in this case

as it relates to Count Three. Accordingly, on review, we do not find indicia of self-

serving testimony.

            (Vague, Uncertain, Conflicting, or Fragmentary Evidence)

       {¶45} There was no vague, uncertain, conflicting, or fragmentary evidence

in the record.



                                        -24-
Case Nos. 8-18-41 and 8-18-42



       {¶46} Accordingly, we find that the weight of the evidence supports

Appellant’s conviction. We further find that the jury did not lose its way and create

a manifest miscarriage of justice in convicting Appellant of possession of cocaine

in Count Three of the indictment in case number CR18-02-0029. Consequently, we

overrule Appellant’s third assignment of error as it relates to Count Three.

                                    Conclusion

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

particulars assigned and argued, we overrule all of Appellant’s first, second, and

third assignments of error and affirm the judgments of the trial court.

                                                               Judgments Affirmed

SHAW and WILLAMOWSKI, J.J., concur.

/jlr




                                        -25-
