State v. Price ( 2013 )

[Cite as State v. Price, 2013-Ohio-3984.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 8-13-03
v.
ROBERT PRICE, OPINION
DEFENDANT-APPELLANT.
Appeal from Logan County Common Pleas Court
Trial Court No. CR12-03-78
Judgment Affirmed
Date of Decision: September 16, 2013
APPEARANCES:
Daniel L. Bennett for Appellant
William T. Goslee for Appellee
Case No. 8-13-03
PRESTON, P.J.
{¶1} Defendant-appellant, Robert J. Price, appeals the Logan County Court
of Common Pleas’ judgment entry of conviction. We affirm.
{¶2} On March 27, 2012, the Logan County Grand Jury indicted Price on
three counts of trafficking crack cocaine in violation of R.C. 2925.03(A)(1), fifth
degree felonies. (Doc. No. 2).
{¶3} On April 2, 2012, Price was arraigned and entered pleas of not guilty.
(Doc. No. 10).
{¶4} On October 16, 2012, the State moved to dismiss Counts One and
Two of the indictment, which the trial court granted. (Doc. No. 54). The case
continued on Count Three of tracking in crack cocaine.
{¶5} On December 11, 2012, a jury found Price guilty. (Doc. Nos. 73, 77).
{¶6} On January 28, 2013, the trial court sentenced Price to 12 months
imprisonment and ordered Price to serve the sentence consecutive to his sentence
in Logan County Case No. CR12-08-0200. (Jan. 28, 2013 Tr. at 8-9).
{¶7} On February 6, 2013, the trial court filed a judgment entry of sentence
indicating that the court sentenced Price to 12 months imprisonment, concurrent
with his sentence in case no. CR12-08-0200. (Doc. No. 80).
{¶8} On February 14, 2013, the trial court filed a nunc pro tunc judgment
entry of sentence indicating that the court sentenced Price to 12 months
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imprisonment, consecutive to his sentence in case no. CR12-08-0200. (Doc. No.
89).
{¶9} On March 7, 2013, Price filed a notice of appeal. (Doc. No. 94).
Price now appeals, raising the following assignment of error:
Assignment of Error
Appellant’s conviction for trafficking in drugs was against the
manifest weight of the evidence presented at trial.
{¶10} In his sole assignment of error, Price argues that his conviction was
against the manifest weight of the evidence because the confidential informant
was using heroin at the time she allegedly made the purchase of crack cocaine for
the sheriff’s department, and she has a history of lying to the police.
{¶11} 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
(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).
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{¶12} Stormi Kiser testified that she is currently residing in the West
Central Rehabilitation Center in Marysville, Ohio following an obstruction of
justice conviction stemming from her involvement with three juveniles escaping
from the Juvenile Detention Center. (Dec. 11, 2012 Tr. at 43). Kiser admitted that
she initially lied to police about the escape incident, but later told the police the
truth and pled guilty. (Id. at 43, 45, 65). Kiser testified that the escape incident
occurred after she helped police in this case. (Id. at 43, 45). Kiser testified she
has a 2007 Kansas drug conviction, and she was involved in the Logan County
(Ohio) drug culture in the past. (Id. at 43-44). She also testified that she pled
guilty to a charge related to her misuse of her grandmother’s credit card. (Id. at
64-65).
{¶13} Kiser testified that, after she obtained a drug charge in 2007,
Detective LeVan asked her to work with him, but she said no at that time. (Id. at
45). Kiser testified that she later decided to work with LeVan, so she told LeVan
that she could buy crack cocaine from Price, who she has known for a few years as
“R-P.” (Id. at 46-47). Thereafter, LeVan came to Kiser’s house to discuss making
a controlled drug buy, and she called Price to purchase drugs. (Id. at 47). Kiser
testified that Price agreed to sell her crack cocaine at a store called “Fulmer’s,” so
LeVan drove her near the location after checking to make sure her pants and coat
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pockets were empty, concealing a tape recorder on her, and giving her $20 to pay
for the drugs. (Id. at 48-49, 51).
{¶14} Kiser testified that, before LeVan dropped her off near the drug-buy
location, she called Price to ask him where he wanted to meet her. (Id. at 49).
Kiser identified State’s exhibit one as a recording of the phone call she made to
Price setting up the drug buy, which was played for the jury. (Id. at 49-51). Kiser
also identified State’s exhibit two as a recording of the conversation she had with
Price during the controlled drug buy in front of Fulmer’s on January 11, 2012,
which was played for the jury. (Id. at 60). Kiser identified the male voice on the
recording to be Price’s. (Id. at 63). Kiser testified that, during the drug buy, Price
indicated that the crack was “fire,” meaning it was “top of the line.” (Id.). Kiser
testified that Price gave her $20 worth of crack inside a Budweiser cap, which
Kiser identified as State’s exhibit 3. (Id. at 52-53). Kiser testified that, when she
returned to LeVan’s vehicle, she gave LeVan the beer cap with the crack cocaine
in it, which Price sold her. (Id.).
{¶15} Kiser testified that, around the time of the drug buy, she was a heroin
user, but she has not been using it since August 10th (2012). (Id. at 62). When
asked why she wanted to work with Detective LeVan, Kiser testified that she was
trying to burn bridges with drug dealers, so she could help herself and the
community. (Id. at 64). Kiser testified that she was paid $50 for her help. (Id.).
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{¶16} On cross-examination, Kiser testified that she has worked with
LeVan on other drug buys besides in this case. (Id. at 65). Kiser testified that she
was familiar with the search protocol for controlled drug buys, and LeVan does
not pat her down, check her bra, underwear, or socks prior to the drug buy. (Id. at
66). Kiser testified that Price put the crack into the bottle cap and squeezed the
cap closed around the crack. (Id. at 68). Kiser testified that she was a heroin
addict at the time of the drug buy, but money was never an issue for her. (Id. at
70). Kiser admitted that stealing was part of her life, which was dishonest. (Id. at
72). Kiser testified that LeVan gave her $50 to purchase $20 worth of drugs. (Id.
at 76). She testified that she has tried crack before, but she was not experienced
with it. (Id.). Kiser testified that she did not expect leniency on any pending
charges for her participation in this case. (Id. at 78-79). On re-direct, Kiser
testified that she is not biased against Price and has no reason to lie about him.
(Id. at 80). Kiser testified that Price usually drinks Budweiser and, “every time
I’ve see[n] him, he’s got a six pack of Budweiser bottles.” (Id. at 81). Kiser
testified that she was not using heroin during the drug buy, but she probably used
heroin the night before. (Id. at 81-82).
{¶17} Kevin LeVan testified that, in January 2012, he was a detective for
the Logan County Sheriff’s Office, and had been so employed for 31.5 years,
though he is currently retired. (Id. at 85). LeVan identified State’s exhibit two as
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a recording of a controlled buy. In a controlled drug buy, law enforcement set up
the buy but do not make any arrests and instead, record the transaction and present
it to a grand jury, according to LeVan. (Id. at 86). LeVan testified that a “bust-
buy,” on the other hand, occurs when the defendant is arrested immediately after
the drug sale. (Id. at 87). LeVan testified that they did not do a “bust-buy” to
protect the informant’s identity so they can use the informant for multiple drug
buys. (Id.).
{¶18} LeVan testified that Kiser contacted him and wanted to know if he
wanted to make a controlled buy of crack cocaine from Price. (Id. at 88). LeVan
testified that he agreed, picked Kiser up, concealed two digital recorders on her,
made the recorded phone call to Price, and gave Kiser $20 for the buy. (Id. at 88).
LeVan also testified that he had Kiser empty her pockets before the buy. (Id. at
88-89). LeVan testified that, after he dropped Kiser off, he sat stationary in the
vehicle and, using his binoculars, observed a male walking around the west end of
the shopping center complex from the Red Bud Apartments to meet up with Kiser.
(Id. at 89). LeVan testified that the suspect was a black male in a hoodie about
LeVan’s size, maybe a little huskier, but generally the height of the defendant.
(Id. at 90). LeVan testified that Price lived in the Red Bud Apartments. (Id.).
LeVan testified that he has spoken with Price in person and over the phone, and
the voice on the recordings sounds like Price. (Id. at 92). LeVan testified that
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Kiser handed him the crack cocaine from the buy, which was inside of a bent up
Budweiser beer bottle cap. (Id.). LeVan testified that he gave Kiser $50 for the
purchase she made, and the suspected drug was sent to BCI & I for testing. (Id. at
92-93).
{¶19} On cross-examination, LeVan testified that he observed what
appeared to be a male subject approach Kiser, though he could not say for sure the
suspect was male “unless [he] undressed him.” (Id. at 97). LeVan testified that he
did not see Kiser the whole time she walked back to the vehicle because he was
moving the vehicle, so Kiser could have put something into her pocket without
him seeing it. (Id. at 98). He testified that, prior to the controlled drug buy, he did
not check Kiser’s back pockets or her undergarments, but he did check Kiser’s
coat. (Id. at 99). LeVan testified that he was not aware that Kiser was using
heroin around the time of the controlled buy. (Id. at 102).
{¶20} On re-direct, LeVan testified that he had no reason to believe that
Kiser had the crack cocaine on her person prior to the controlled buy. (Id. at 104).
He further testified that the voice on the recordings is a male voice. (Id.). LeVan
testified that $20 worth of crack cocaine was about a quarter of the size of a pencil
eraser, and the phrase “that’s fire shit,” used by the male subject on the recording
of the controlled buy, meant that the crack cocaine was “[t]op of the line stuff,
good stuff.” (Id. at 105). LeVan testified that Kiser did not appear to be under the
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influence of drugs during the controlled buy, and he would not have used her if he
thought she was under the influence. (Id.).
{¶21} Detective Phil Bailey testified that he received the evidence from
LeVan, and submitted it to BCI & I for testing. (Id. at 108-109). Bailey identified
State’s exhibit four as the Logan County Sheriff’s Office evidence sheet, where
Detective LeVan indicated that he had evidence in the case. (Id. at 108). Bailey
identified State’s exhibit five as the crime lab submission sheet generated from
BCI & I when he personally delivered the evidence to BCI & I for testing. (Id. at
108-109). Bailey identified State’s exhibit seven as the report prepared by Mr.
Worst, a forensic scientist at BCI & I, wherein Worst identified the submitted
substance as crack cocaine. (Id. at 110).
{¶22} Thereafter State’s exhibits one through three were admitted without
objection, and State’s exhibits four through seven were admitted by stipulation of
the parties. (Id. at 113). The State rested, and Price motioned for acquittal
pursuant to Crim.R. 29(A), which the trial court denied. (Id. at 114-115).
Thereafter, the defense rested, and Price renewed the motion for acquittal. (Id. at
119-120). The jury found price guilty. (Id. at 150); (Doc. No. 73).
{¶23} Price essentially argues that his conviction is against the manifest
weight of the evidence because the confidential informant was not credible due to
her past drug use and convictions. Credibility, however, is primarily the role of
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the jury, and we cannot find that the jury lost its way in this case. DeHass, 10
Ohio St.2d at 231. The evidence was not limited to the confidential informant’s
testimony, alone. The jury heard recordings of a phone conversation between the
drug dealer and Kiser setting up the purchase. (State’s Ex. 1). The jury also heard
a recording of the controlled drug buy in which the drug dealer informs Kiser
about the high quality of the drug he is selling. (State’s Ex. 2). Kiser returned
with crack cocaine inside of a Budweiser beer bottle cap, which was significant
since Price was known to prefer that name brand of beer. Both Kiser and
Detective LeVan testified that the voice of the suspect on the recordings was
similar to Price’s voice, and the drug dealer was seen leaving the area where Price
was known to live to conduct the drug sale. Detective LeVan also testified that the
suspect, who he observed through binoculars from his parked vehicle while the
drug buy was in progress, was a black subject who was about the same build as
Price.
{¶24} The jury was aware of Kiser’s past drug activity and criminal
convictions and still found her credible. In light of the evidence presented that
Price sold Kiser crack cocaine, we are not persuaded that the jury clearly lost its
way and created a manifest injustice here.
{¶25} Price’s assignment of error is, therefore, overruled.
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{¶26} 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.
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