State v. Fisher , 2014 Ohio 436 ( 2014 )

[Cite as State v. Fisher, 2014-Ohio-436.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HARDIN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 6-13-03
v.
DANIEL LEWIS FISHER, OPINION
DEFENDANT-APPELLANT.
Appeal from Hardin County Common Pleas Court
Trial Court No. 20122051 CRI
Judgment Affirmed
Date of Decision: February 10, 2014
APPEARANCES:
Michael J. Short for Appellant.
Destiny R. Hudson for Appellee.
Case No. 6-13-03
PRESTON, J.
{¶1} Defendant-appellant, Daniel Lewis Fisher, appeals the Hardin County
Court of Common Pleas’ judgment entry of conviction. We affirm.
{¶2} On March 1, 2012, the Hardin County Grand Jury indicted Fisher on
Count One of aggravated trafficking in drugs in violation of R.C. 2925.03(A)(1),
(C)(1)(a), a fourth-degree felony; Counts Two and Three of aggravated possession
of drugs in violation of R.C. 2925.11(A), (C)(1)(a), fifth-degree felonies; and,
Count Four of possession of criminal tools in violation of R.C. 2923.24(A), a fifth-
degree felony. (Doc. No. 1).
{¶3} On May 21, 2012, Fisher was arraigned and entered pleas of not guilty
to all counts in the indictment. (Doc. No. 5).
{¶4} On June 4, 2013, the matter proceeded to a jury trial, and the jury
found Fisher guilty on all counts. (Doc. Nos. 37-41).
{¶5} On July 29, 2013, the trial court held a sentencing hearing wherein it
found that Count Two was an allied offense to Count One. (JE, Doc. No. 50);
(July 29, 2013 Tr. at 16). The State elected to sentence on Count One. (Id.); (Id.).
The trial court sentenced Fisher to two years community control on each of Counts
One, Three, and Four and further ordered Fisher serve his community control
concurrently. (Id.); (Id. at 16-23). The trial court filed its judgment entry of
sentence on August 1, 2013. (Doc. No. 50).
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{¶6} On August 2, 2013, Fisher filed a notice of appeal, and now raises one
assignment of error. (Doc. No. 52).
Assignment of Error
The conviction was against the manifest weight of the evidence.
{¶7} In his sole assignment of error, Fisher argues that his aggravated
trafficking and aggravated possession convictions are against the manifest weight
of the evidence. With respect to the aggravated trafficking conviction, Fisher
argues that the State’s sole witness, a confidential informant (“CI”), was not a
credible witness because of his admitted lack of memory concerning the details of
the transaction. With respect to the aggravated possession charge, Fisher argues
that he did not knowingly possess a controlled substance, because he believed the
substance was jewelry cleaner.1
{¶8} In determining whether a conviction is against the manifest weight of
the evidence, a reviewing court must examine the entire record, “‘[weigh] the
evidence and all reasonable inferences, [consider] the credibility of witnesses and
[determine] whether in resolving conflicts in the evidence, the [trier of fact]
clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.’” State v. Thompkins, 78
Ohio St.3d 380, 387 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175
1
Although Fisher states that his criminal tools conviction was also against the manifest weight of the
evidence, he does not provide any argument relative to that conviction, and we decline to make an
argument for him on appeal. App.R. 12(A)(2); App.R. 16(A)(7).
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(1st Dist.1983). A reviewing court must, however, allow the trier of fact
appropriate discretion on matters relating to the weight of the evidence and the
credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230, 231 (1967).
{¶9} The criminal offense of aggravated drug trafficking is codified in R.C.
2925.03, which provides, in relevant part: “[n]o person shall knowingly * * *
[s]ell or offer to sell a controlled substance or a controlled substance analog * * *.”
R.C. 2925.03(A)(1). The criminal offense of aggravated possession of drugs is
codified in R.C. 2925.11, which provides, in pertinent part: “[n]o person shall
knowingly obtain, possess, or use a controlled substance or a controlled substance
analog.” R.C. 2925.11(A). The indictment alleged that Fisher trafficked and
possessed Pentedrone, with a chemical structure substantially similar to
Methcathinone, a.k.a. Bath Salts and Jewelry Cleaner, a Schedule I controlled
substance. (Doc. No. 1). R.C. 3719.41, 3719.43; 21 U.S.C. 812; 21 C.F.R.
1308.11(f)(5). (See also June 4, 2013 Tr. at 121).
{¶10} Fisher argues that the CI’s testimony was not credible because the CI
could not remember certain details concerning the drug transaction, and, at trial,
the CI could not remember Fisher’s name. While the CI did testify that he did not
know the defendant’s name—or at least the defendant’s last name—at the time he
entered the store, he identified the drug dealer as “Danny Fisher” in a statement he
made a few minutes after the controlled buy. (Tr. at 131, 135-136, 145). At trial,
the CI identified Fisher as the person that sold him the bath salts on December 1,
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2011. (Id. at 137). While the CI could not remember whether he received a
receipt or whether Fisher deposited the money into the cash register, the CI
testified that he gave everything he received during the controlled buy to law
enforcement. (Id. at 138-140). The CI did recall that, when he entered the store to
make the purchase, he asked the defendant for “bath salts,” and the defendant
never questioned the nature of the substance he was selling to him. (Id. at 141-
142). Based on the aforementioned, the jury did not clearly lose its way and create
a manifest miscarriage of justice. The CI testified almost a year and a half after
the controlled drug buy occurred and forgot some of the details concerning the
controlled drug buy; nevertheless, the CI identified Fisher immediately after the
controlled buy and at trial.
{¶11} Next, Fisher argues that his trafficking conviction is against the
manifest weight of the evidence because the only evidence demonstrating he sold
the bath salts was the CI’s less-than-credible testimony. In particular, Fisher
argues that the audio recording from the CI’s concealed wire was of very poor
quality and not played for the jury. (See id. at 153-155). While it is true that the
audio recording was of very poor quality, there was circumstantial evidence of the
drug transaction offered through the testimony of Detective Beach, who conducted
the controlled buy. Prior to conducting the controlled buy, Detective Beach
searched the CI for money and contraband and found none; thereafter, Detective
Beach gave the CI $100 to make the controlled purchase, and he watched the CI
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enter and exit the store in question. (Id. at 150-155). When the CI returned to
Detective Beach a few minutes later, he came back with a white powdery
substance later identified as bath salts and no money. (Id. at 157); (State’s Ex. 3).
Detective Beach also testified that law enforcement discovered four of the five
twenty dollar bills he provided the CI in the cash register at the store in question.
(Id. at 163-164). Consequently, we are not convinced that Fisher’s aggravated
trafficking conviction is against the manifest weight of the evidence for this
reason.
{¶12} Finally, in a singular sentence in his brief, Fisher argues that his
aggravated possession conviction was against the manifest weight of the evidence
because he thought the substance was jewelry cleaner, and therefore, he did not
knowingly possess the illegal bath salts. We disagree.
{¶13} “A person acts knowingly, regardless of his purpose, when he is
aware that his conduct will probably cause a certain result or will probably be of a
certain nature.” R.C. 2901.22(B). The CI testified that, when he entered the
store, he asked Fisher for “bath salts,” and Fisher never disputed the nature of the
substance. (June 4, 2013 Tr. at 141-142). Detective Beach testified that the bath
salts were in a clear, unmarked plastic baggie, and criminals refer to bath salts as
jewelry cleaner. (Id. at 157-158). Detective Rushing, who executed a search of
the store in question, testified that he did not find any commercially labeled bath
salts or jewelry cleaner in the store. (Id. at 182). Detective Beach testified that
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commercially-labeled bath salts are in marked packaging and sell for much less
than $100. (Id. at 167). From this evidence, the jury could have reasonably
concluded that Fisher knowingly possessed illegal bath salts.
{¶14} Fisher’s assignment of error is, therefore, overruled.
{¶15} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
ROGERS, and SHAW, J.J., concur.
/hlo
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