      [Cite as State v. Bachman, 2018-Ohio-1242.]




                         IN THE COURT OF APPEALS OF OHIO
                             SIXTH APPELLATE DISTRICT
                                  FULTON COUNTY


State of Ohio                                       Court of Appeals No. F-17-006

      Appellee                                      Trial Court No. 16CR000120

v.

Mitchel D. Bachman                                  DECISION AND JUDGMENT

      Appellant                                     Decided: March 30, 2018


                                              *****

      Scott A. Haselman, Fulton County Prosecuting Attorney, for appellee.

      Edward J. Stechschulte, for appellant.

                                              *****

      JENSEN, J.

                                         I. Introduction

      {¶ 1} Appellant, Mitchel Bachman, appeals the judgment of the Fulton County

Court of Common Pleas, sentencing him to one year of community control after a jury

found him guilty of trafficking in marijuana and permitting drug abuse.
                         A. Facts and Procedural Background

       {¶ 2} On August 16, 2016, appellant was indicted on one count of trafficking in

marijuana in violation of R.C. 2925.03(A), and one count of permitting drug abuse in

violation of R.C. 2925.13(A), felonies of the fifth degree. Appellant entered a plea of not

guilty, and a two-day jury trial began on January 12, 2017. The following facts were

established at trial.

       {¶ 3} On June 17, 2016, a confidential informant, J.B., contacted the Fulton

County Sheriff’s Office and informed deputy Steven Waxler about a potential drug

transaction involving appellant. According to J.B., appellant had offered to sell him 1.5

ounces of marijuana for $425. Thereafter, Waxler and another deputy, Justin Galbraith,

met J.B. at the Fulton County Health Center. Waxler searched J.B. and his car for drugs,

money, or other contraband, and installed an audio/video recorder inside the pocket of

J.B.’s mesh shorts. The recording of the transaction, which was of a poor quality, was

played at trial.

       {¶ 4} J.B. then made his way to the Ace Hardware parking lot in Wauseon, Ohio,

where he was expecting to meet with appellant to complete the transaction. Waxler and

Galbraith followed appellant to Ace Hardware.

       {¶ 5} While waiting in the Ace Hardware parking lot, J.B. received a call from

appellant, who informed J.B. that the marijuana was at a friend’s mobile home located at

Star Mobile Park. Appellant indicated that he was having a difficult time locating the

marijuana after having hidden it inside the trailer. Consequently, J.B. drove to the mobile

home to complete the transaction.

2.
       {¶ 6} After J.B. parked his vehicle, the deputies lost sight of him. J.B. made his

way into the trailer, where appellant and two other males were waiting. According to

J.B., the two unidentified males did not participate in the drug transaction. Upon entering

the trailer, J.B. offered appellant $400 in exchange for the marijuana. Appellant agreed,

and the transaction was completed.

       {¶ 7} Approximately five minutes later, J.B. returned to his vehicle and left the

trailer park. Shortly thereafter, an individual whom Waxler identified as appellant

departed the scene driving a red pickup truck. Notably, J.B. testified that appellant had

driven a bright red Ford Ranger pickup truck for “a year or two” prior to the transaction.

Waxler recorded the license plate number from the truck, which was later determined to

be registered to appellant’s mother.

       {¶ 8} Eventually, J.B. met up with Waxler and Galbraith, as well as Officer Jerry

Brown. The video and audio recording equipment was removed from J.B.’s person, and

J.B. handed the officers the vegetation that he had purchased from appellant, which was

subsequently analyzed and confirmed to be marijuana.

       {¶ 9} Following the state’s presentation of the foregoing evidence, appellant

moved for a directed verdict pursuant to Crim.R. 29 as to the charge of permitting drug

abuse. The trial court subsequently denied appellant’s motion, and the defense rested

without calling any witnesses. Following deliberations, the jury found appellant guilty of

the aforementioned charges. The trial court ordered the preparation of a presentence

investigation report and continued the matter for sentencing.



3.
       {¶ 10} At sentencing, the trial court ordered appellant to serve six months in

prison on the trafficking charge and eight months on the charge for permitting drug

abuse, to be served concurrently. The court found, pursuant to R.C. 2929.13(B), that a

non-prison sentence was appropriate. Consequently, the court imposed a one-year term

of community control, ordered appellant to serve 30 days in jail, and directed appellant to

pay restitution in the amount of $400. Appellant’s timely notice of appeal followed.

                                B. Assignments of Error

       {¶ 11} On appeal, appellant presents the following assignments of error:

              Assignment of Error No. 1: The jury’s verdict finding Appellant

       guilty of trafficking in drugs was against the manifest weight of the

       evidence.

              Assignment of Error No. 2: Appellant’s conviction for permitting

       drug abuse was not supported by sufficient evidence to prove beyond a

       reasonable doubt each and every element of the crime charged.

              Assignment of Error No. 3: The jury’s verdict finding Appellant

       guilty of permitting drug abuse was against the manifest weight of the

       evidence.

                                       II. Analysis

                                 A. Standard of Review

       {¶ 12} In appellant’s assignments of error, he challenges the sufficiency of the

state’s evidence as to the charge of permitting drug abuse and asserts that the jury’s

findings of guilt as to both offenses was against the manifest weight of the evidence.

4.
       {¶ 13} In reviewing a challenge to the sufficiency of the evidence, we view the

evidence in a light most favorable to the prosecution and determine whether “any rational

trier of fact could have found the essential elements of the crime proven beyond a

reasonable doubt.” (Internal citations omitted.) State v. Smith, 80 Ohio St.3d 89, 113,

684 N.E.2d 668 (1997). In making that determination, the appellate court will not weigh

the evidence or assess the credibility of the witnesses. State v. Were, 118 Ohio St.3d 448,

2008-Ohio-2762, 890 N.E.2d 263, ¶ 132. Whether there is sufficient evidence to support

a conviction is a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678

N.E.2d 541 (1997).

       {¶ 14} When reviewing a manifest weight of the evidence issue, we sit as a

“thirteenth juror.” Id. at 387. That is, we review the entire record, weigh the evidence

and all reasonable inferences, and consider the credibility of witnesses. Id. Our role is to

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.” Id. We reverse a conviction on manifest weight

grounds for only the most “exceptional case in which the evidence weighs heavily against

the conviction.” Id. at 387.

                               B. Trafficking in Marijuana

       {¶ 15} In his first assignment of error, appellant argues that the jury’s guilty

verdict as to the charge for trafficking in marijuana under R.C. 2925.03(A) was against

the manifest weight of the evidence.



5.
       {¶ 16} R.C. 2925.03(A)(1) prohibits a person from selling or offering to sell a

controlled substance or a controlled substance analog. Appellant does not contest the fact

that marijuana is a controlled substance. Rather, he contends that the state failed to

establish that he knowingly sold marijuana to J.B.

       {¶ 17} In support of his manifest weight argument, appellant takes issue with the

state’s reliance upon J.B.’s testimony in establishing the facts of the drug transaction.

Appellant insists that J.B. was not a credible witness in light of his admission that he is a

drug addict and the fact that he was eventually terminated as a confidential informant

after violating the terms of the confidential informant agreement and being convicted on

a felony theft charge. Moreover, appellant questions why the state failed to elicit

testimony from the two individuals who were inside the trailer at the time the transaction

took place, failed to recover the text messages between J.B. and appellant that supposedly

contain appellant’s offer to sell the marijuana to J.B., and failed to search the mobile

home in which the drug transaction took place. In addition, appellant highlights the poor

quality of the recording that was taken by J.B. during the drug transaction, and asserts

that “it is next to impossible to say with any sense of assurances that Mr. Bachman is

captured on the video. But it is undisputed that the video does not capture the purported

drug transaction.”

       {¶ 18} We note at the outset that appellant’s trial counsel thoroughly explored the

various credibility issues relating to J.B. The jury was able to assess J.B.’s credibility in

light of his drug addiction and previous bad acts, and concluded that J.B. was a credible



6.
witness. We do not find that the jury’s credibility determination was against the manifest

weight of the evidence. See State v. Neal, 5th Dist. Stark No. 1998CA00288, 1999 Ohio

App. LEXIS 2863, *5-6 (June 21, 1999) (rejecting defendant’s manifest weight argument

challenging the credibility of identification testimony based upon the witness’s credibility

upon a determination that defense counsel thoroughly cross-examined the witness and

explored the credibility issue at trial).

       {¶ 19} Further, although J.B. was the only eyewitness to the drug transaction that

testified at trial, we note that the testimony of the officers substantiated J.B.’s assertion

that appellant sold him 1.5 ounces of marijuana for $400. Indeed, the officers testified at

length as to the procedures they employed to ensure that J.B. was not in possession of any

drugs prior to the transaction, which included searching J.B. and his vehicle. Upon

exiting the trailer, the officers met up with J.B., who informed them that appellant sold

him the marijuana, which he presented to the officers. J.B. also informed the officers that

appellant had left the premises in his red pickup truck. Appellant acknowledges that each

of the law enforcement officers involved in this case testified that an individual left the

mobile home park in a red Ford pickup truck matching the one driven by appellant

shortly after the drug transaction took place.

       {¶ 20} During his testimony, officer Waxler identified appellant as the driver of

the red pickup truck and stated that he observed appellant driving the vehicle as it passed

“within a few feet” in front of him. Waxler was able to record the license plate number

on the truck, which was registered to appellant’s mother.



7.
       {¶ 21} Appellant challenges Waxler’s identification of appellant, noting that

Waxler prepared an incident report three days after the transaction in which he omitted

any mention of having observed appellant driving the red pickup truck. This apparent

inconsistency was explained by Waxler at trial. Waxler testified that he does not prepare

his incident reports by including every detail but, rather, only includes the information he

deems necessary in order to allow him to recollect the events described in the report. The

jury was in the best position to assess the credibility of this explanation and we see no

reason to question the jury’s determination in this case.

       {¶ 22} In light of the evidence introduced by the state at trial, we find that the jury

did not lose its way and create such a manifest miscarriage of justice that the trafficking

conviction must be reversed and a new trial ordered. Accordingly, appellant’s first

assignment of error is not well-taken.

                                C. Permitting Drug Abuse

       {¶ 23} In his second assignment of error, appellant argues that the state introduced

insufficient evidence to support his conviction for permitting drug abuse under R.C.

2925.13(A), which provides: “No person who is the owner, operator, or person in charge

of a * * * vehicle, as defined in division (A) of section 4501.01 of the Revised Code,

shall knowingly permit the vehicle to be used for the commission of a felony drug abuse

offense.”

       {¶ 24} Here, appellant asserts that the state failed to produce any evidence on the

use element of R.C. 2925.13(A); that is, the state did not establish that appellant used the



8.
pickup truck in order to traffic the marijuana. The state responds to this argument by

asserting that appellant’s reading of the statute is too narrow. Referring to several

dictionary definitions of the words found in the statute, the state contends that the

relevant question is, “Was appellant‘s red pick-up truck put into service with the object or

purpose of committing a felony drug abuse offense?” The state insists that the answer to

this question is yes.

       {¶ 25} In support of its assertion, the state cites the Ninth District’s decision in

State v. Thompson, 9th Dist. Lorain No. 3836, 1985 Ohio App. LEXIS 8658 (Aug. 28,

1985). In Thompson, the court of appeals found that the defendant’s conviction for

permitting drug abuse was supported by sufficient evidence where the defendant drove

his 17-year-old stepdaughter, Rebecca, to a motel to have sex with her after offering her

whiskey, marijuana, and cocaine. In its decision, the Ninth District stated:

              The statute does not, as Thompson believes, require that the felony

       drug abuse offense take place inside the vehicle, in this case Thompson’s

       1972 Oldsmobile Toronado. The statute only requires that the vehicle be

       used for the commission of such an offense. In this case, the Toronado was

       used to transport Thompson, the drugs and his intended victim to the motel

       where he intended to consummate his criminal act. Without the use of the

       Toronado or another vehicle, Thompson, the cocaine and Rebecca would

       not have been delivered to the scene of the crime. The Toronado was thus




9.
         an integral and necessary instrument in Thompson’s criminal scheme, and

         was clearly “…used for the commission of a felony drug abuse offense.”

         R.C. 2925.13(A). Id. at *7.

         {¶ 26} In light of this language, the state argues that the use of a vehicle, even if

only to transport the defendant to the scene of a drug transaction, is sufficient to support a

conviction for permitting drug abuse. We find that this reading of Thompson is too

broad.

         {¶ 27} Having examined Thompson, we conclude that the defendant’s use of the

vehicle to transport the drugs (and the victim) was a crucial fact that is lacking in the

present case. The evidence introduced at trial reveals that the marijuana that was sold to

J.B. was located inside appellant’s friend’s mobile home during the entire course of the

drug transaction. There is no evidence that appellant transported the marijuana to the site

of the drug transaction. Therefore, we find Thompson to be distinguishable. Appellant’s

pickup truck was incidental to the commission of the drug offense and was not an

“integral and necessary instrument” in this case. Therefore, we hold that appellant’s

conviction for permitting drug abuse was not supported by sufficient evidence and must

be reversed.

         {¶ 28} Accordingly, appellant’s second assignment of error is well-taken.

Because we have concluded that appellant’s conviction for permitting drug abuse was not

supported by sufficient evidence, we need not address his third assignment of error, in

which he argues that the conviction was against the manifest weight of the evidence.



10.
                                     III. Conclusion

       {¶ 29} In light of the foregoing, the judgment of the Fulton County Court of

Common Pleas is affirmed as to appellant’s conviction for trafficking in marijuana, and

reversed and vacated as to his conviction for permitting drug abuse. The parties are

ordered to divide the costs of this appeal equally pursuant to App.R. 24.

                                                               Judgment affirmed, in part,
                                                               and reversed, in part.



       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
James D. Jensen, P.J.
                                               _______________________________
Christine E. Mayle, P.J.                                   JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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