State v. Ward , 2012 Ohio 988 ( 2012 )

[Cite as State v. Ward, 2012-Ohio-988.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 13-11-17
v.
JOHN E. WARD, OPINION
DEFENDANT-APPELLANT.
Appeal from Seneca County Common Pleas Court
Trial Court No. 10 CR 0133
Judgment Affirmed
Date of Decision: March 12, 2012
APPEARANCES:
James S. Nordholt, Jr. for Appellant
Derek W. DeVine and James A. Davey for Appellee
Case No. 13-11-17
SHAW, P.J.
{¶1} Appellant, John E. Ward (“Ward”), appeals the April 18, 2011
judgment of the Seneca County Court of Common Pleas journalizing his
conviction by a jury for two counts of aggravated trafficking in drugs and
sentencing him to serve fifteen months in prison on each count, to be served
consecutively.
{¶2} On July 29, 2010, the Seneca County Grand Jury returned a two count
indictment alleging Ward committed aggravated trafficking in drugs, in violation
of R.C. 2925.03(A)(1),(C)(1)(a). Both offenses are felonies of the fourth degree.
{¶3} The charges stemmed from two controlled purchase operations
conducted by the Seneca County Drug Task Force MERITCH Enforcement Unit
on February 16, 2009, and on March 2, 2009. Each of these controlled purchase
operations involved the use of a confidential informant, hereinafter referred to as
the “CI,” who purchased a prearranged amount of Oxycodone from Ward. During
the controlled purchase operations, law enforcement outfitted the CI with an audio
transmitter and recorder, which recorded the CI’s conversations with Ward during
each drug transaction. The CI died unexpectedly after participating in the two
controlled purchase operations involving Ward.
{¶4} On October 12, 2010, Ward filed a motion in limine to exclude from
evidence any out-of-court statements made by the CI during the operations, in
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particular any statements made by the CI identifying Ward as the person who sold
him the Oxycodone. Ward argued that because the CI was unavailable to testify at
trial, his out-of-court statements are considered hearsay and their admission would
violate his Sixth Amendment right of confrontation.
{¶5} The trial court held a hearing on Ward’s motion in limine. On January
7, 2011, the trial court issued a Judgment Entry granting in part and overruling in
part Ward’s motion in limine. Specifically, the trial court excluded evidence of
the CI’s statements made during a photo array identifying Ward as the suspect.
However, the trial court permitted the prosecution to use the audio recordings
from the controlled purchase operations, concluding that the recordings are not
hearsay and the confrontation clause would not be violated. The trial court also
ruled that it would give a limiting instruction regarding the audio recordings to the
jury.
{¶6} Ward filed two additional motions in limine requesting the trial court
to exclude from evidence any out-of-court statements made by the CI to law
enforcement after his encounters with Ward, and any out-of-court statements made
by the CI during a subsequent interview with law enforcement. After a hearing,
the trial court granted both of these motions in limine. As a result of the trial
court’s rulings, the prosecution was limited to only introducing the portion of the
audio recordings that captured the CI’s encounter with Ward during the drug
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transactions, and was not permitted to introduce any portion of the tape after the
transactions concluded. The recording of the CI’s interview with law enforcement
was also excluded from being presented as evidence in the prosecution’s case-in-
chief.
{¶7} The case proceeded to a jury trial on April 11 and 12, 2011. The
prosecution presented the testimony of the law enforcement officers involved in
each of the controlled purchase operations. In addition, the prosecution also
presented the testimony of the forensic scientists who analyzed the drugs the CI
purchased from Ward and confirmed its identity as Oxycodone. Ward testified on
his own behalf.
{¶8} On April 12, 2011, the jury returned a guilty verdict for both counts of
aggravated trafficking in drugs, convicting Ward of both offenses.
{¶9} On April 18, 2011, the trial court sentenced Ward to serve fifteen
months in prison for each offense, to be served consecutively.
{¶10} Ward now appeals, asserting the following assignments of error.
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED BY ADMITTING
TESTIMONIAL STATEMENTS MADE BY AN
UNAVAILABLE WITNESS THROUGH AUDIO TAPES OF
ALLEGED DRUG TRANSACTIONS AND THE TESTIMONY
OF POLICE OFFICERS.
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ASSIGNMENT OF ERROR NO. II
THE VERDICT OF GUILTY RENDERED BY THE JURY
WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
{¶11} For ease of discussion, we elect to address Ward’s assignments of
error together.
First and Second Assignments of Error
{¶12} On appeal, Ward claims the trial court erred in permitting the
prosecution to use the audio recordings of the actual drug transactions during the
controlled purchase operations as evidence against him. Ward also challenges the
jury verdict, asserting that it is against the manifest weight of the evidence.
{¶13} The following testimony was elicited as evidence at trial. Detective
Armstrong, a police officer with the Fostoria Police Department and a detective
with the Seneca County Drug Task Force MERTICH Enforcement Unit, testified
that he was the case manager assigned to both controlled purchase operations and
made all the decisions regarding how the operations proceeded. Detective
Armstrong testified that he had previously participated in approximately two
hundred controlled purchase operations.
{¶14} On the stand, Detective Armstrong explained the typical protocol
used in a controlled purchase operation. As standard “pre-operational protocol,”
the CI and law enforcement meet at a “pre-determined location,” where the CI and
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his vehicle are searched by law enforcement for contraband.1 The CI is outfitted
with an audio transmitter and recorder which serves two functions: 1) to transmit
in real time to the listener all the sounds captured by the device during the
operation; and 2) to digitally record all the sounds captured by the device during
the operation. Detective Armstrong explained that during the pre-operational
protocol law enforcement also issues the CI money to purchase the illegal drugs
anticipated to be obtained in the operation. The serial numbers on the bills are
recorded prior to being issued to the CI.
{¶15} Detective Armstrong explained that in both of these instances
involving Ward, the CI and law enforcement left the pre-determined location and
travelled to the “target location,” where the controlled purchase was arranged to
take place. In both operations, the target location was the alley behind the CI’s
home located at 194 East Perry Street in Tiffin, Ohio. Detective Armstrong
testified that law enforcement conducted both visual and audio surveillance of the
operations. The audio surveillance was conducted with the use of the audio
transmitter and recorder placed on the CI, and the visual surveillance was
conducted with the use of a video camera.
1
The testimony at trial also revealed in detail the procedure used by law enforcement to conduct the search
of the CI and his vehicle. The vehicle search lasts approximately five to ten minutes and is performed in
same manner as a typical traffic stop search. Specifically, law enforcement thoroughly searches the vehicle
including the glove box, under the seats and mats, and the trunk. During the search of the CI, the CI is
asked to remove all outer layers of clothing, including his shoes, so that his first layer of clothing is all that
remains on his person. The CI’s clothing and shoes are searched by law enforcement and the CI is
thoroughly patted down.
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{¶16} Detective Armstrong testified that immediately after the completion
of each operation, the CI and law enforcement returned to the pre-determined
location to conduct the “post-operational protocol.” At this time, the CI turns over
the illegal drugs he purchased in the operation to law enforcement and the
contraband is packaged and labeled as evidence. The CI and his vehicle are again
searched for additional contraband, and the audio transmitter and recorder is
removed.
1. February 16, 2009 Controlled Purchase Operation
{¶17} In this particular instance, Detective Armstrong recalled that the
operation was initiated when the CI contacted him about arranging the purchase of
seven OxyContin 80 pills from a person named “John.”2 Detective Armstrong
testified that based on the information he obtained from the CI, he anticipated that
the price would be $50.00 per pill. Detective Armstrong explained that he was the
“control officer” for this particular CI, meaning that the CI would contact
Detective Armstrong anytime he discovered that he could purchase illegal drugs
from someone to see if law enforcement was available to conduct a controlled
2
OxyContin is the trade name for Oxycodone Hydrochloride controlled-release tablets, an opioid analgesic
drug. “Oxycodone is a morphine-like drug that is highly addictive and is rated as a Schedule II narcotic, a
designation given by the government that identifies a prescription medication as having a great potential for
abuse. A Schedule II designation also means that the drug, while accepted for medical use, has severe
restrictions, and abuse of the drug has a high potential to lead to severe psychological or physical
dependence.” Howland v. Purdue Pharma L.P., 104 Ohio St.3d 584, 2004-Ohio-6552, ¶¶ 2-3. Detective
Armstrong testified that OxyContin 80 contains 80 milligrams of Oxycodone.
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purchase operation. After speaking with the CI, Detective Armstrong authorized
the CI to arrange the purchase with the seller.
{¶18} Detective Armstrong recalled that the operation occurred in the
afternoon. Detective Armstrong and two other detectives, Detectives Joseph and
Vallery,3 met with the CI at the pre-determined location to conduct the pre-
operational protocol. Detective Armstrong testified that he searched the CI and
fitted him with the audio transmitter and recorder. Detectives Vallery and Joseph
both testified that together they searched the CI’s vehicle. The testimony of all
three Detectives confirmed that no contraband was found either on the CI or in his
vehicle. Detective Armstrong testified that he issued the CI $350.00 to purchase
the seven OxyContin tablets at $50.00 apiece. Detective Armstrong recalled that
he assigned Detective Joseph to conduct the video surveillance of the operation,
while he and Detective Vallery monitored the audio surveillance.
{¶19} After completing the pre-operational protocol, the CI and the
detectives left the pre-determined location and headed toward the target location.
The CI drove his own vehicle, with Detective Joseph in one vehicle, and
Detectives Vallery and Armstrong riding together in another. Detective Joseph
testified that he was the first to leave the predetermined location with the CI
behind him, and Detectives Armstrong and Vallery following the CI.
3
Detectives Joseph and Vallery testified that they collectively have over 28 years of law enforcement
experience and have conducted over a thousand controlled purchase operations.
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{¶20} Detective Armstrong recalled that while en route to the target
location, he received information from the CI that the person from whom he was
supposed to buy the OxyContin pills had arrived early. Specifically, the CI
indicated to the detectives that the suspect was in a blue-green four-door vehicle
stopped at the intersection. The same blue-green four-door vehicle then pulled up
into the lane next to Detectives Vallery and Armstrong’s vehicle. Detective
Armstrong testified that from his vantage point he was able to get “a full visual” of
the driver, whom he later identified as Ward. Detective Armstrong also observed
a handicapped placard hanging from the vehicle’s rearview mirror.
{¶21} At this time, Detective Armstrong was also able to observe the
license plate on the blue-green vehicle. Detective Armstrong testified that he ran
the license plate number through LEADS, a national law enforcement database,
and discovered that the vehicle was registered to John E. Ward. The suspect then
followed the CI to the target location. Detectives Armstrong and Vallery arrived
at the target location shortly after the CI and the suspect.
{¶22} On the stand, Detective Joseph testified that he remembered hearing
the call over the police radio indicating that the suspect had arrived early and that
his vehicle had been identified as the one stopped at the intersection. Detective
Joseph testified that he then observed both the CI’s and the suspect’s vehicles
behind him while en route to the target location. Detective Joseph described the
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suspect’s vehicle as blue-green in color. Detective Joseph also recalled hearing
Detective Armstrong recite the license plate number of the suspect’s vehicle over
the radio.
{¶23} Once at the target location, Detective Joseph explained that he
parked his vehicle in a nearby parking lot where he could observe the location of
the anticipated drug transaction. Detective Joseph testified that he arrived at the
target location shortly before the CI and suspect, who arrived at the same time. As
a consequence of the suspect arriving early, Detective Joseph was only able to
record the tail-end of the drug transaction with the video recorder, which depicted
the blue-green car identified as the suspect’s leaving after the illegal drug purchase
took place. However, Detective Joseph testified that while he was trying to focus
the video camera he personally observed the CI speaking to a white male during
the time the drug transaction occurred.
{¶24} Detective Armstrong testified that he audibly monitored in real time
the conversation between the CI and Ward during this operation. At trial,
Detective Armstrong identified the voices on the audio recordings as those
belonging to the CI and Ward. Detective Armstrong explained that he was
familiar with the CI’s voice because he was the “control officer” for the CI and
had daily contact with him. Detective Armstrong further explained that his
familiarity with Ward’s voice stemmed from his participation in the controlled
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purchase operations and other additional occasions on which he interacted with
Ward after the conclusion of the operations.
{¶25} The following is an excerpt from the audio recording of the February
16, 2009 controlled purchase operation, which was played for the jury.
JW: (Inaudible.)
CI: I know. We’ll I am trying to make you some money, man.
There is one, two—seven there?
JW: I can’t give you my bottle.
CI: All right. Wait a minute.
JW: (Inaudible) give you my bottle.
CI: One, two—you can count it. There’s $350; one, two,
three, four, five—All right. All right. Well, I’ll get ahold of you
later, all right?
JW: (Inaudible) three or four more but they’re 50, man, and
I’d have to pull a couple strings to get ‘em because I gotta go to
Upper.
CI: All right. Well, I’ll just give you a call later, all right?
Just give me a call. I’ll give you a call in a couple hours or
something, an hour. When are you going up there?
JW: I’m gonna be leaving (Inaudible).
CI: Well, call me when you get back then.
JW: I gotta go pay bills and shit, you know what I mean?
CI: Yeah. Well, call me when you get back. Yeah. Uhm,
yeah I got—Yeah, I gotta go drop these off real quick.
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(Trans. p. 221-22).
{¶26} At trial, Detective Armstrong testified to his own perceptions of the
conversation between the CI and Ward on the audio recording of the February 16,
2009 transaction. Detective Armstrong explained that he heard Ward state he
could not give the CI his bottle. Based on his experience, Detective Armstrong
testified that Ward was referring to a prescription pill bottle, which was sometimes
used as the vessel to hold the illegal drugs sold in a controlled purchase operation.
{¶27} On the stand, Detective Armstrong also explained the significance of
Ward’s statements “three or four more but they’re 50, man, and I’d have to pull a
couple strings to get ‘em because I gotta go to Upper.” Detective Armstrong
testified that based on his experience, the CI and Ward were arranging another
purchase of illegal drugs for three or four more pills at $50.00 a piece, but that
Ward would have to travel to Upper Sandusky, a neighboring town, to obtain the
drugs. Detective Armstrong explained that he also heard the CI counting to 350
which he believed indicated that the CI had completed the purchase of the seven
OxyContin pills for $50.00 each.
{¶28} Detectives Armstrong, Joseph, and Vallery each testified that they
followed the CI to the pre-determined location after the operation was complete to
conduct the post-operational protocol. Detective Vallery recalled that he searched
both the CI and his vehicle after the operation. Notably, the $350.00 in marked
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bills given to the CI prior to the operation was not found. At this time, the CI
handed Detective Vallery the illegal drugs obtained during the operation, which
were identified as the anticipated seven OxyContin pills.
{¶29} Detective Vallery described the contraband as pills loosely contained
in a cellophane wrapper, similar to the kind found on the outer wrapping of a
cigarette pack. The fact that the anticipated contraband was contained in the
cellophane wrapper directly correlates with Detective Armstrong’s perceptions of
Ward’s statements on the audio recordings indicating that he could not give the CI
his prescription pill bottle to transport the illegal drugs. Notably, as highlighted in
our discussion of the second controlled purchase operation; the illegal drugs
exchanged in that transaction were contained in a prescription pill bottle with the
label removed.
{¶30} Detective Vallery testified that he then handed the contraband to
Detective Armstrong. Detective Armstrong testified that he packaged the pills and
labeled them as evidence. The testimony at trial revealed that at this time no other
contraband was found on either the CI or in his vehicle. Detective Armstrong also
confirmed that the audio transmitter and recorder was removed from the CI.
{¶31} The prosecution admitted the pills obtained during the February 16,
2009 operation as an exhibit at trial. On the stand, both Detectives Vallery and
Armstrong individually identified the exhibit as the pills purchased by the CI
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during the operation. In addition, the prosecution presented the testimony of the
forensic scientist who analyzed the identity and the weight of the pills and
confirmed that the pills were the scheduled II substance, Oxycodone. The lab
report prepared by the forensic scientist was also admitted as an exhibit at trial.
2. March 2, 2009 Controlled Purchase Operation
{¶32} Detective Armstrong testified that he learned from the CI that twenty
Percocet pills4 could be purchased from the same seller for $5.00 apiece, or
$100.00, and gave the CI permission to arrange the purchase.
{¶33} Detective Armstrong recalled that the operation took place during the
afternoon of March 2, 2009. This time, the participating law enforcement officers
were Detectives Armstrong, Joseph and Boyer.5 The detectives met the CI at the
pre-determined location to conduct the pre-operational protocol. Detective Joseph
testified that the CI was searched and the audio transmitter and recorder was
placed on the CI’s body. The CI’s vehicle was not involved in this operation.
Detective Armstrong testified that the CI was issued five marked $20.00 bills.
{¶34} The target location during this operation was the same as in the
previous operation. Detective Boyer was assigned to conduct the video
surveillance.
4
Percocet is composed of Oxycodone and Tylenol. As previously mentioned, Oxycodone is a schedule II
substance.
5
Detective Boyer testified that he has nineteen years’ of experience as a City of Tiffin Police Officer and
that he also serves as the unit coordinator for the Seneca County Drug Task Force METRICH Enforcement
Unit. He testified that he has participated in over a thousand controlled purchase operations.
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{¶35} Detective Boyer testified that he parked at the target location, hid in
the back of his vehicle, and waited for the suspect to arrive. Detective Boyer’s
video recording of the operation was admitted as evidence at trial. The recording
initially focuses on the CI who is waiting to meet with the suspect. After a few
minutes pass, a blue-green four-door vehicle is seen driving down the alley past
Detective Boyer’s location. There is a handicapped placard hanging from the
rearview mirror of the vehicle. Detective Boyer focuses on the driver, who is the
sole occupant of the vehicle, and is able to view his face. The vehicle stops at the
target location and a man in a brown coat is seen approaching the driver’s side of
the vehicle. The man in the brown coat then leans into the driver’s side window
with his hands inside the vehicle for close to a minute. Detective Boyer focuses
on the vehicle’s license plate and calls in the license plate number over the police
radio. The man in the brown coat then leans back from the vehicle and is seen
with a small object in his right hand. The man in the brown coat and the driver
continue to talk for another minute and then driver leaves the target location.
{¶36} At trial, Detective Boyer testified to his observations during the
operation and explains the video. Specifically, he identifies the CI as the man
wearing the brown coat, who leans into the vehicle. Detective Boyer explained
that based on his experience a person typically leans into a vehicle in that manner,
in broad daylight, to avoid anyone seeing what is being exchanged. Detective
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Boyer testified that it is his understanding that the illegal drugs were exchanged
between the suspect and the CI at this moment. Detective Boyer also identified
his voice on the video and explained that he recited over the radio the license plate
number of the suspect’s vehicle to inform the other detectives.
{¶37} Detective Boyer testified that he made still photographs of the driver
and the vehicle from his video surveillance. These photographs were also
admitted as exhibits at trial. On the stand, Detective Boyer described the images
in the photos. The majority of the photos focus on the driver of the vehicle, in
particular the driver’s face. Detective Boyer identified Ward in the courtroom as
the driver of the vehicle in the photos. Another photo depicts the blue-green
vehicle with a clear view of the license plate number. Boyer identified this vehicle
as the one he observed at the March 2, 2009 controlled purchase operation. The
testimony at trial also revealed that the license plate number on the vehicle was the
same one observed by Detective Armstrong in the first operation.
{¶38} Detectives Armstrong and Joseph conducted the audio surveillance
from the same vehicle. During this time, Detective Armstrong audibly monitored
the operation in real time. The operation was simultaneously being recorded. The
following is an excerpt of the audio recording of the March 2, 2009 operation,
which was also played for the jury at trial.
CI: What’s up, big dawg? Can you roll that down farther or—
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JW: (Inaudible).
CI: One, two, three, four, five; one hundred. Where are you
going? Upper Sandusky? What do you gotta go up there for?
(Inaudible) stand right there.
JW: I took my kids up there (Inaudible) snow storm. We were
upset (Inaudible) thought it was give [sic], then I found out it
was (Inaudible.)
CI: (Inaudible)
JW: I gotta be up there a [sic] six.
CI: Well, what time are you gonna be back?
JW: Probably about seven, 7:30.
CI: Seven, 7:30?
JW: Hey, tomorrow might be able to get some Donnes in the
morning (Inaudible) fuckin’ Blue’s old lady to the doctor in the
morning.
CI: Blue’s old lady?
JW: Yeah (Inaudible) fuckin’ Donnes and Zannies in the
morning.
CI: That’d be cool. Get a hold of me, man, for sure. Call me
tonight.
JW: I will.
CI: All right.
JW: I don’t even hardly have any of these left, fuck.
CI: Damn, you done got rid of all of them already?
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JW: I wanted to fuck—I need a few to fuckin’—I don’t know.
I wanna get this quarter of red bud that’s really (Inaudible) you
know?
CI: Yeah.
JW: But I gave [sic] him a few of these, I get a, fuck, quarter of
it.
CI: All right.
JW: I was trying to fuckin’ (Inaudible) 15, I’d give them five of
them.
CI: Yeah.
JW: They told me it’d be ready Monday.
CI: Huh? All right. Well, get a hold of me, man.
JW: I already had some one time, that’s fuckin’ good, man,
fuckin’ real good. It’s all real red.
CI: Oh, yeah?
JW: You know, like the red hairs in the leaves.
CI: That real—
JW: (Inaudible) green in it.
CI: That real good shit?
JW: Ain’t any green in it.
CI: Oh, yeah. Really? I’d like to see some of that.
JW: It’s the fuckin’ bomb.
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CI: Oh yeah. Okay. Well, call me when you get back from
Upper.
JW: I will.
CI: All right, man. I’ll close our garage . . .
(Trans. p. 243-46).
{¶39} After the audio recording of the March 2, 2009 operation was played,
the prosecutor asked Detective Armstrong to explain some of the references made
by Ward in his statements. Detective Armstrong explained that the anticipated
goal of this operation was to purchase twenty Percocet pills for $100.00.
Detective Armstrong testified that based on his training and experience he
believed that Ward’s comments stating that he only had “a few of these” left, that
“it’d be ready Monday,” and that he wanted to get rid of “15” and “I’d give them
five of them” so that he could get “a quarter of a red bud” meant that Ward wanted
to keep five of the twenty Percocet pills he arranged to sell to the CI to exchange
them for a quarter ounce of marijuana. However, the CI had already indicated that
he wanted to buy the twenty pills. Detective Armstrong testified that based on his
understanding of what had occurred, the CI was able to purchase all twenty pills
because he heard the CI counting “one, two, three, four, five; one hundred”
indicating that the CI was individually counting the five twenty dollar bills
previously issued to him by law enforcement.
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{¶40} Shortly after the CI’s statements, a noticeable rattling sound was also
picked up by the recording. Detective Armstrong described this sound as pills
dropping into a prescription pill bottle. After the operation was complete, the
twenty Percocet pills purchased by the CI were turned over to the detectives.
Notably, the pills were contained in a prescription pill bottle with the label
removed, which was consistent with Detective Armstrong’s perceptions while
listening to the recordings. Detective Armstrong also explained Ward’s references
to “Zannies” and “Donnes” as the street names for Xanax pills and Methadone
pills.6
{¶41} Detective Armstrong testified that after the operation he and
Detective Joseph picked-up the CI from the target location and drove him to the
pre-determined location to conduct the post-operational protocol. At this time, the
CI handed Detective Joseph the twenty pills contained in the plastic prescription
pill bottle with the label removed. Detective Joseph testified that he received the
pills from the CI, and then labeled and packaged the pills as evidence. Detective
Armstrong confirmed that the CI was searched and the audio transmitter and
recorder was removed. Detective Armstrong testified that neither the marked bills
nor any additional contraband were found on the CI’s person.
6
Xanax is an anti-anxiety drug and a schedule IV substance. Methadone is a pain reliever and a schedule II
substance.
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{¶42} At trial, the prosecution admitted as an exhibit the package of
evidence containing the pills purchased by the CI in the operation. On the stand,
Detective Joseph identified the pills as the ones obtained in the March 2, 2009
operation. In addition, the prosecution presented the testimony of the forensic
scientist who analyzed the identity and the weight of the pills and confirmed that
the pills were the scheduled II substance, Oxycodone. The lab report prepared by
the forensic scientist was also admitted as an exhibit at trial.
{¶43} In his first assignment of error, Ward argues that the trial court erred
in partially overruling his motion in limine to exclude as evidence against him the
audio recordings of the controlled purchase operations. Specifically, Ward argues
that the statements of the CI captured by the recordings constitute hearsay and
violate his Sixth Amendment right of confrontation.
{¶44} As an initial matter we note that decisions regarding the admissibility
of evidence are within the sound discretion of the trial court and will not be
reversed absent a showing of an abuse of discretion. State v. Yohey (March 18,
1996), 3d Dist. No. 9-95-46, citing State v. Graham, 58 Ohio St.2d 350 (1979),
and State v. Lundy, 41 Ohio App.3d 163 (1987). An abuse of discretion implies
that the court’s attitude is unreasonable, arbitrary, or unconscionable. Blakemore
v. Blakemore, 5 Ohio St.3d 217, 219, (1983).
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{¶45} We have previously addressed this issue and concluded that the
audio recordings of actual drug transactions are not hearsay, and that the
introduction of such recordings does not violate the confrontation clause. See
State v. Perkins, 3d Dist. No. 13-10-36, 2011-Ohio-2705, ¶ 5; State v. Stewart, 3d
Dist. No. 13-08-18, 2009-Ohio-3411, ¶ 90. The rationale underpinning our prior
cases is based on state and federal authority which has uniformly held that the
introduction of a CI’s statements recorded during the actual drug transaction with
the defendant are not offered to prove the truth of the matter asserted, but are
merely necessary to establish the context of the defendant’s own statements and
responses captured on the recordings. Stewart at ¶ 90 citing State v. Sloan, 8th
Dist. No. 79832, 2002-Ohio-2669, ¶ 16; State v. Hill, 5th Dist. No. CA-8094 (Dec.
31, 1990). See, also United States v. Price, 792 F.2d 994, 996 (11th Cir.1986)
(finding that the statements of the deceased CI on the audio recordings of a
narcotics transaction involving the defendant were not hearsay and did not violate
the defendant’s Sixth Amendment right of confrontation because “[t]he single
purpose for admitting the [CI’s] statements was to make understandable to the jury
the statements made by [the defendant] himself.”) Notably, Ohio appellate courts,
as well as other jurisdictions, have ruled on this issue consistent with our prior
opinions. See e.g., State v. Jones, 4th Dist. No. 09CA1, 2010-Ohio-865, ¶ 24;
State v. Aldrich, 12th Dist. No. CA2006-10-044; 2008-Ohio-1362, ¶ 9; United
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States v. Jones, 205 Fed. Appx. 327, 342 (C.A.6 2006); Turner v. Kentucky, 248
S.W.3d 543, 545-546 (Ky.2008); Connecticut v. Smith (CT 2008), 289 Conn. 598,
960 A.2d 993, 1011-1012.
{¶46} In this instance, the trial court also gave the jury the following
instruction regarding the evidentiary weight to be allotted to these audio
recordings.
Now, in this case, the Court has permitted the State of Ohio to
introduce the statements of the confidential informant made
outside of court through the introduction of various audio
recordings over the objection of John Ward. These statements
have not been introduced for the truth of the matter asserted.
Rather, these statements have been allowed into evidence to
merely establish the context of the suspect’s statements and
responses. For that reason, you, the jury, may not consider the
statements of the confidential informant for the truth of the
matter asserted.
(Trans. p. 321).
{¶47} Based on the testimony which we set forth above, we believe that the
audio recordings of the controlled purchase operations were introduced for the
permissible purpose of establishing the context of Ward’s statements consistent
with the ruling of our prior case law. We also believe the record demonstrates that
the audio recordings were offered for an additional purpose to provide the context
for the personal observations and perceptions made by Detective Armstrong while
he audibly monitored the drug transactions in real time, and to assist Detective
Armstrong in providing testimony to that effect on the stand. Therefore, we
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conclude that the audio recordings of the operations do not constitute hearsay and
their admission did not violate Ward’s Sixth Amendment right to confrontation.
Ward’s first assignment of error is overruled.
{¶48} In his second assignment of error, Ward challenges the jury verdict
convicting him on two counts of aggravated trafficking in drugs. Specifically,
Ward argues that the jury verdict was against the manifest weight of the evidence.
{¶49} An appellate court’s function when reviewing the weight of the
evidence is to determine whether the greater amount of credible evidence supports
the verdict. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). In reviewing
whether the trial court’s judgment was against the weight of the evidence, the
appellate court sits as a “thirteenth juror” and examines the conflicting testimony.
Id. In doing so, this Court must review the entire record, weigh the evidence and
all of 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 be reversed and a new trial ordered.” State v. Andrews, 3d Dist. No. 1–05–
70, 2006–Ohio–3764, ¶ 30, citing State v. Martin, 20 Ohio App.3d 172, 175
(1983); Thompkins, 78 Ohio St.3d at 387.
{¶50} Ward was convicted of aggravated trafficking in drugs, in violation
of R.C. 2925.03(A)(1),(C)(1)(a), which provides:
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(A) No person shall knowingly do any of the following:
(1) Sell or offer to sell a controlled substance;
(C) Whoever violates division (A) of this section is guilty of one
of the following:
(1) If the drug involved in the violation is any compound,
mixture, preparation, or substance included in schedule I or
schedule II. * * * The penalty for the offense shall be determined
as follows:
(a) * * * aggravated trafficking in drugs is a felony of the
fourth degree, and division (C) of section 2929.13 of the Revised
Code applies in determining whether to impose a prison term on
the offender.
{¶51} On appeal, Ward contends that the jury verdict was against the
manifest weight of the evidence because the only witness who could identify Ward
as the person who sold the Oxycodone in the controlled purchase operations is
now deceased and unable to testify in court. Therefore, Ward challenges the
validity of the jury verdict, asserting that there was no direct evidence introduced
at trial to either identify him as the person who sold the Oxycodone to the CI or to
demonstrate that an illegal drug transaction actually occurred.
{¶52} Despite Ward’s contentions, direct and circumstantial evidence do
not differ in terms of their probative value. State v. Treesh, 90 Ohio St.3d 460,
485, (2001), citing State v. Jenks, 61 Ohio St.3d 259 (1991) paragraph one of the
syllabus. It is well established that “circumstantial evidence is sufficient to sustain
a conviction if the evidence would convince the average mind of the defendant’s
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Case No. 13-11-17
guilt beyond a reasonable doubt.” State v. McKnight, 107 Ohio St.3d 101, 2005–
Ohio–6046, ¶ 75. “Circumstantial evidence is not only sufficient, but may also be
more certain, satisfying and persuasive than direct evidence.” State v. Lott, 51
Ohio St.3d, 160, 168 (1990), quoting Michalic v. Cleveland Tankers, Inc, 364 U.S.
325, 330 (1960).
{¶53} As observed by the United States Supreme Court, “[i]ndividual
pieces of evidence, insufficient in themselves to prove a point, may in cumulation
prove it,” because “[t]he sum of an evidentiary presentation may well be greater
than its constituent parts.” Bourjaily v. United States (1987), 483 U.S. 171, 179–
180. In addition, “a piece of evidence, unreliable in isolation, may become quite
probative when corroborated by other evidence.” Id. at 180. Moreover, a series of
facts and circumstances can be employed by a jury as the basis for its ultimate
conclusions in a case. Lott, 51 Ohio St.3d at 168, citing Hurt v. Charles J. Rogers
Transp. Co., 164 Ohio St., 329, 331 (1955).
{¶54} In reviewing the testimony presented at trial, we find there is
substantial circumstantial evidence identifying Ward as the person who sold the
Oxycodone to the CI during both controlled purchase operations. Detectives
Boyer and Armstrong each identified Ward as the person they observed meeting
with the CI during the operations. Moreover, they each identified Ward’s vehicle
as the one involved in the operations.
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{¶55} In addition, Detective Armstrong also explained that when he ran the
license plate number of the vehicle through the database every picture Ward had
taken over the years to renew his driver’s license identification card appeared on
the screen. Detective Armstrong testified that upon seeing those pictures he was
able to identify Ward as the person he had seen in the vehicle with the CI at the
target location.
{¶56} Detective Armstrong also testified that he had seen Ward on a few
occasions in addition to the two controlled purchase operations. Detective
Armstrong recalled a specific instance where he had an hour-long conversation
with Ward at a child custody hearing, which was prompted as a result of the
charges pending in this case. Detective Armstrong remembered talking with Ward
in a doorway waiting to go into the courtroom. Detective Armstrong also recalled
participating in at least two traffic stops involving Ward, which occurred after the
controlled purchase operations were completed.
{¶57} Detective Armstrong further testified that Ward has a distinguishing
physical characteristic which assisted him in identifying Ward. Detective
Armstrong explained that based on his personal observations of Ward, he noticed
that Ward walks with a limp. At trial, Ward testified that in 1999 he became
disabled with a fused leg and a bad back. All of this testimony further bolstered
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Detective Armstrong’s identification of Ward as the person who sold the
Oxycodone to the CI in the controlled purchase operations.
{¶58} Ward challenges the prosecution’s evidence identifying him as the
seller in the controlled purchase operations based on the fact that law enforcement
did not attempt to analyze any fingerprints potentially found on the containers in
which the Oxycodone was transferred, or to conduct a voice analysis of the audio
recordings. On cross-examination, Ward’s counsel asked each of the detectives
who participated in the controlled purchase operations why neither a fingerprint
nor a voice analysis were performed in this case. The detectives provided similar
and consistent responses to this question stating that it is not standard protocol to
perform these types of tests, specifically when they believed the identity of the
suspect is not in question. Moreover, the testimony revealed that fingerprint
analysis is usually futile in these types of cases because it is difficult to lift a
fingerprint off of cellophane or a plastic prescription pill bottle. Ward’s counsel
also asked the detectives why Ward was not arrested immediately after the
operation. The detectives explained again that it was not protocol to arrest the
suspect immediately after a controlled purchase operation because at that time the
CI’s identity would be revealed, and the CI would no longer be of use to law
enforcement in the future.
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Case No. 13-11-17
{¶59} At trial, Ward testified on his own behalf. Ward denied selling the
drugs to the CI on February 16, 2009 and on March 2, 2009. Ward admitted that
during the time of the controlled purchase operations he had owned a vehicle
which matched the description of the one identified by the detectives. However,
Ward claimed that during these pertinent time periods he had entrusted his vehicle
to a local mechanic and therefore he was not in possession of the vehicle at all
times relevant to the operations. Ward also testified that he has been unable to
maintain employment since 2006 due to his disability. Ward further testified that
in the past he had been prescribed Percocet, Oxycontin 10, 20, 30, 40 and 80, but
insisted that he never failed a pill count.7
{¶60} There is also ample circumstantial evidence demonstrating that a
drug transaction occurred in each instance that the CI met with Ward during the
controlled purchase operations. As previously discussed, each of the detectives
involved in the controlled purchase operations testified to the procedural protocol
conducted during the operations. Moreover, each of the detectives testified to his
specific role in that protocol. On both occasions, the CI and his vehicle, if it was
involved, were extensively searched before and after the operation. Prior to each
operation, the CI was issued marked bills to complete the purchase, which were
7
Based on the testimony at trial, the number after OxyContin indicates the milligram amount of
Oxycondone. For example, OxyContin 10 means that the drug contains 10 milligrams of Oxycodone. In
addition, Ward testified that a “pill count” is a random screening ordered by a doctor which involves a
patient going into a pharmacy to count the pills to ensure that the patient has the appropriate amount of pills
remaining at that point in the prescription period.
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Case No. 13-11-17
not found on his person or in his vehicle after meeting with Ward. In both
instances, it was only after the CI met with Ward, that the CI had obtained the
anticipated amount and type of drugs expected to be purchased in the operation.
{¶61} In addition, the audio recordings of the encounters between Ward
and the CI provide evidence that drug transactions had occurred. In each of the
recordings, the CI is heard counting the precise amount of money anticipated to be
used in the transaction. As explained by Detective Armstrong, Ward’s own
statements on the audio recording of the two operations indicate that a drug
transaction was in progress. Each of these facts and circumstances together
created a reasonable basis for the jury to conclude that Ward was the person who
sold the Oxycodone to the CI during the operations and that an actual illegal drug
purchase occurred on each of these occasions.
{¶62} In the end, it was solely within the province of the jury to weigh the
evidence and consider the credibility the witnesses to determine whether the
evidence sustained a conviction. In this case, it is apparent that the jury found the
evidence to be adequate to support finding Ward guilty on two counts of
aggravated trafficking in drugs.
{¶63} After reviewing the record, weighing the evidence and all reasonable
inferences, and considering the credibility of witnesses, we conclude that a
reasonable jury could have found that Ward was the person who sold Oxycodone
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to the CI during the controlled purchase operations on February 16, 2009 and on
March 2, 2009, and that an actual drug transaction occurred during the operations.
Therefore, we further conclude that the jury did not lose its way and create a
manifest miscarriage of justice in reaching these conclusions. Accordingly, we
find that Ward’s convictions for aggravated trafficking in drugs are not against the
manifest weight of the evidence. Ward’s second assignment of error is overruled.
{¶64} For all these reasons, the judgment is affirmed.
Judgment Affirmed
WILLAMOWSKI and ROGERS, J.J., concur.
/jlr
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