[Cite as State v. Slone, 2011-Ohio-2016.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                        C.A. No.      25130

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
BROOKS SLONE                                         COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 09 02 0541 (A)

                                  DECISION AND JOURNAL ENTRY

Dated: April 27, 2011



        MOORE, Judge.

        {¶1}     Appellant, Brooks Slone, appeals from the judgment of the Summit County Court

of Common Pleas. This Court affirms the trial court’s judgment.

                                                I.

        {¶2}     Brooks Slone was indicted on six counts related to various drug offenses,

including Aggravated Possession of Drugs (mushrooms), in violation of R.C. 2925.11(A)(C)(1),

Illegal Cultivation of Marijuana, in violation of R.C. 2925.04(A), Possession of Marijuana in

excess of 200 grams, in violation of R.C. 2925.11(A)(C)(3), Possessing Criminal Tools, in

violation of R.C. 2923.24, Illegal Cultivation of Marijuana, in violation of R.C. 2925.04, and

Possession of Marijuana (in excess of one kilogram), in violation of R.C. 2925.11(A)(C)(3). A

co-defendant, Scott Reeder, was charged with similar offenses.

        {¶3}     The second and third counts, illegal cultivation of marijuana and possession of

marijuana in excess of 200 grams, were dismissed. Following a jury trial, Slone was found not
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guilty of the first and last counts, aggravated possession of drugs (mushrooms) and possession of

marijuana in excess of one kilogram. The jury found Slone guilty of possessing criminal tools

and illegal cultivation of marijuana.

       {¶4}    Slone has appealed her convictions raising three assignments of error.

                                               II.

                                  ASSIGNMENT OF ERROR II

       “THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT APPELLANT’S
       CONVICTIONS.”

       {¶5}    In her second assignment of error, Slone argues that the evidence was insufficient

to prove her guilt. We do not agree.

       {¶6}    When considering a challenge to the sufficiency of the evidence, the court must

determine whether the prosecution has met its burden of production. State v. Thompkins (1997),

78 Ohio St.3d 380, 390 (Cook, J., concurring). To determine whether the evidence in a criminal

case was sufficient to sustain a conviction, an appellate court must view that evidence in a light

most favorable to the prosecution:

       “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. The 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 crime proven
       beyond a reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d 259, paragraph
       two of the syllabus.

       {¶7}    Slone focuses on only one point in her assignment of error – the State failed to

prove that she was ever observed at 1198 Beardsley Street. At trial, she admitted she owned the

Beardsley home. She does not dispute the fact that marijuana was grown in the home. On
                                                3


appeal, she argues that there must be evidence of her presence at the home for her to be

convicted. We do not agree.

       {¶8}    The indictment charged that Slone and Reeder knowingly cultivated marijuana, in

violation of R.C. 2925.04(A). “‘Cultivate’ includes planting, watering, fertilizing, or tilling.”

R.C. 2925.01(F). The trial court also instructed the jury on aiding and abetting. R.C. 2923.03(F)

provides that “[a] charge of complicity may be stated in terms of this section, or in terms of the

principal offense.” “Thus, a defendant charged with an offense may be convicted of that offense

upon proof that he was complicit in its commission, even though the indictment is ‘stated * * *

in terms of the principal offense’ and does not mention complicity.” State v. Herring (2002), 94

Ohio St.3d 246, 251, quoting R.C. 2923.03(F). See, also, State v. White, 9th Dist. Nos. 23955,

23959, 2008-Ohio-2432, ¶28.

       {¶9}    As this Court recognized in White at ¶29:

       “‘To aid is to assist.’ State v. Williams, 9th Dist. No. 21840, 2004-Ohio-4316, at
       ¶19, quoting State v. Sims (1983), 10 Ohio App.3d 56, 58. For a person to be
       convicted of aiding or abetting another in a crime, ‘the evidence must show that
       the defendant supported, assisted, encouraged, cooperated with, advised, or
       incited the principal in the commission of the crime.’ State v. Johnson (2001), 93
       Ohio St.3d 240, syllabus. Further, the evidence must show that the defendant
       expressed concurrence with the unlawful act or intentionally did something to
       contribute to an unlawful act. State v. Stepp (1997), 117 Ohio App.3d 561, 568.”

       {¶10} The State offered sufficient evidence to prove Slone assisted in the cultivation of

marijuana. While there was no direct evidence that she watered the plants or tilled the soil, there

was sufficient evidence of her support of the marijuana growing operation.

       {¶11} The story of Slone’s support begins with how police became aware of the

operation. On a cold January day, officers were in Akron conducting surveillance of a drug

transaction unrelated to Slone and Reeder. One officer was positioned across from the Akron

Garden Center. From his car, he observed Slone’s minivan being loaded with two large bags of
                                                    4


topsoil. Based on his experience, he thought the purchase of two large bags of topsoil in January

was unusual. He followed the minivan to 1198 Beardsley, Slone’s house.

       {¶12} The officer believed that marijuana was being grown in Slone’s house. He

conducted a “trash pull,” which meant he took the trash from the garbage container placed on the

curb. He found evidence of marijuana being grown, including a cup with green residue, green

stems, and seeds. He also found the tops of milk jugs, typically used in the cultivation of

marijuana. Finally, he found mail addressed to Slone and a date-book that belonged to her.

       {¶13} The officer then subpoenaed the electric bills for Slone’s home. He learned that

the bill for Slone’s home was higher than the bills for her neighbors, indicating higher energy

consumption, also consistent with marijuana cultivation. Eventually, the officer received a

warrant to conduct a thermal imagery search. The thermal image of the home revealed abnormal

amounts of heat in the attic.

       {¶14} Based on this evidence, officers obtained a search warrant and used it to search

Slone’s home. Reeder was alone at the home when the officers searched. According to the

officer who talked with him, Reeder said that Slone owned the home, she lived there, and it was

unusual for her not to be home. He also told the officers that he slept on the couch because the

bedroom in the home was Slone’s. In the bedroom, officers found Slone’s clothes. They found

her checkbook, electric bill, and credit card bill. They found letters written to Slone by a friend

who was incarcerated. In the bathroom, the officers found make-up, women’s products, and a

prescription pill bottle with Slone’s name on it.

       {¶15} In addition to talking with Reeder, and finding Slone’s personal items, officers

discovered an extensive marijuana cultivation operation. A Drug Enforcement Agency special

agent explained what he found in the attic. In addition to 69 marijuana plants, there were grow
                                                 5


lights, exhaust fans, insulation, and bug spray. He testified that this was a complete growing

operation. There were other items found in the home related to the sale of drugs, including a

digital scale, baggies, rolling papers, and books describing how to grow marijuana. Officers also

found mushrooms in the kitchen.

       {¶16} Mr. Reeder testified that he pleaded guilty to cultivating and possessing

marijuana. He said he was responsible for the grow operation and Slone, who he described as

being like a daughter to him, was not usually at the house. An officer testified, however, that on

the day of the search, Reeder told the officers that Slone lived at the home and it was unusual for

her not to be there.

       {¶17} The sole question raised by this assignment of error is whether the State presented

sufficient evidence to prove Slone was guilty of cultivating marijuana or that she aided and

abetted the cultivation of marijuana. The State presented evidence that the marijuana was grown

in Slone’s home. Slone’s minivan was used to transport topsoil to her home. Slone paid the

utility bills, including the unusually high electric bills. Although there was no evidence that

Slone tilled the soil or watered the plants, there was sufficient evidence to prove that Slone aided

or abetted Reeder’s admitted cultivation. Considering the evidence in a light most favorable to

the State, from providing a means of transportation to a place to grow the marijuana, and paying

for the utilities to support the operation, the State proved Slone aided and abetted the cultivation

of marijuana. Accordingly, her second assignment of error is overruled.

                                 ASSIGNMENT OF ERROR III

       “APPELLANT’S CONVICTIONS WERE CONTRARY TO THE MANIFEST
       WEIGHT OF THE EVIDENCE.”

       {¶18} In her third assignment of error, Slone contends her convictions are against the

manifest weight of the evidence. We do not agree.
                                                 6


       {¶19} “While the test for sufficiency requires a determination of whether the state has

met its burden of production at trial, a manifest weight challenge questions whether the state has

met its burden of persuasion.” State v. Gulley (Mar. 15, 2000), 9th Dist. No. 19600, at *1, citing

Thompkins, 78 Ohio St.3d at 390.

       {¶20} A determination of whether a conviction is against the manifest weight of the

evidence does not permit this court to view the evidence in the light most favorable to the State

to determine whether the State has met its burden of persuasion. State v. Love, 9th Dist. No.

21654, 2004-Ohio-1422, at ¶11. Rather,

       “an appellate court must review 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. Otten (1986), 33 Ohio App.3d 339,
       340.

This discretionary power should be invoked only in extraordinary circumstances when the

evidence presented weighs heavily in favor of the defendant. Id.

       {¶21} In support of her third assignment of error, Slone argues that her conviction is

against the weight of the evidence based on the cumulative effect of the facts and law argued in

the first two assignments of error. She argues that there was “minimal evidence” connecting her

to the cultivation and, although the grow operation was found in a home she owned, there was no

evidence indicating she was aware of Reeder’s activities.

       {¶22} We previously determined that the evidence, considered in a light most favorable

to the State, was sufficient to support Slone’s conviction. A police officer testified that Reeder

told him during the search, that it was unusual for Slone not to be at her home. At trial, Reeder

testified that Slone was not involved in the complete marijuana operation in her home. To

conclude that the conviction was against the weight of the evidence, we would have to decide
                                                 7


that the jury should have believed Reeder’s testimony over the police officer’s explanation of

what Reeder said to him at the time the search warrant was being executed. We would also have

to disregard the evidence that Slone paid the bills, provided a home to Reeder, and that her van

was used to transport topsoil, all in support of the growing operation.

       {¶23} “The weight to be given the evidence and the credibility of the witness[es] are

primarily for the trier of the facts.” State v. Jackson (1993), 86 Ohio App.3d 29, 32, citing State

v. Richey (1992), 64 Ohio St.3d 353, 363. Having reviewed the evidence, and considered the

weight that should be accorded to it, we cannot conclude that Slone’s conviction created a

manifest miscarriage of justice that must be reversed. Otten, 33 Ohio App.3d at 340. Slone’s

third assignment of error is overruled.

                                  ASSIGNMENT OF ERROR I

       “THE COURT ERRED IN PERMITTING THE STATE TO INTRODUCE INTO
       EVIDENCE A DIARY (DATE PLANNER) FROM THE CALENDAR YEAR
       2002 AS DOCUMENTATION OF APPELLANT’S ALLEGED DRUG
       ACTIVITY.”

       {¶24} In her first assignment of error, Slone argues that the trial court erred when it

admitted her 2002 date planner into evidence. Assuming that the trial court erred in admitting

the date planner, its admission constituted harmless error.

       {¶25} The 2002 date planner was discovered during the search of Slone’s home. The

officer testified that the planner contained evidence of drug transactions she made in 2002.

Those transactions involved selling marijuana, mushrooms, and prescription medicines. The

State argued, and the trial court agreed, that this evidence was relevant to show that Slone lived

in the house because the planner was found during the search. The State also argued that the

planner was relevant because it connected her past drug transactions to her current charges.
                                                  8


       {¶26} The focus of the questions about the planner was directed at three distinct areas.

First, the officer testified about Slone’s sale of mushrooms in 2002, based on notations on the

planner. As it relates to mushrooms, Slone was found not guilty of that count. Second, the

officer testified about Slone’s sale of prescription medicines. Slone was not charged with the

sale of prescription medicines in this case. Third, the officer testified about Slone’s marijuana

sales. Slone was found not guilty of possession of marijuana, but guilty of cultivating marijuana

and possessing criminal tools.

       {¶27} On the other hand, there was significant evidence to connect Slone to the home.

Notably, at trial, Slone admitted ownership of the home. Numerous personal items connected

her to the home, including letters and bills that were more closely connected in time than the

2002 date planner. During the search, Reeder told the officers that it was unusual for Slone not

to be at the home. Most importantly, Slone was acquitted of the two counts that were most

closely tied to the planner, possession of marijuana and possession of mushrooms. Accordingly,

any error in admitting the 2002 date planner was harmless. Crim.R. 52(A) (providing that any

error “which does not affect substantial rights shall be disregarded.”); State v. Brown (1992), 65

Ohio St.3d 483, 485 (“Where there is no reasonable possibility that unlawful testimony

contributed to a conviction, the error is harmless and therefore will not be grounds for

reversal.”). Slone’s first assignment of error is overruled.

                                                 III.

       {¶28} Slone’s assignments of error are overruled. The judgment of the Summit County

Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.
                                                 9




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                      CARLA MOORE
                                                      FOR THE COURT




CARR, J.
CONCURS

BELFANCE, P. J.
CONCURS, SAYING:

       {¶29} I concur. However, with respect to Ms. Slone’s first assignment of error, I would

definitively conclude that the trial court erred in admitting the 2002 datebook. It is clear that the

main reason the State sought admission of the datebook was to suggest that because Ms. Slone

was previously involved in drug transactions, including the sale of mushrooms and marijuana,
                                               10


she must still be involved with drug transactions. “‘Evidence of other crimes, wrongs, or acts is

not admissible to prove the character of a person in order to show action in conformity

therewith,’ but may be admissible for certain other purposes[,]” none of which are implicated in

the instant matter. State v. Morris, 9th Dist. No. 09CA0022-M, 2010-Ohio-4282, at ¶11, quoting

Evid.R. 404(B).

       {¶30} The State’s use of inadmissible other acts evidence is troubling. Nonetheless, I

concur because the admission of the evidence was harmless beyond a reasonable doubt given the

substantial evidence supporting the conclusion that Ms. Slone lived in and/or frequented the

premises at issue. See id. at ¶34. In addition, the jury found Ms. Slone not guilty of the

possession of mushrooms and not guilty of the possession of marijuana; thus, supporting a

conclusion that the inadmissible evidence did not contribute to Ms. Slone’s conviction. State v.

Rahman (1986), 23 Ohio St. 3d 146, 151.


APPEARANCES:

JEFFREY N. JAMES, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
