State v. Butcher , 2017 Ohio 4154 ( 2017 )

[Cite as State v. Butcher, 2017-Ohio-4154.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. John W. Wise, J.
-vs-
Case No. 2016CA00207
KRISTIN L. BUTCHER
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No.
2016-CR-1465(B)
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 5, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO, AARON KOVALCHIK
Prosecuting Attorney, 116 Cleveland Avenue NW, Suite 808
Stark County, Ohio Canton, Ohio 44702
By: KRISTINE W. BEARD
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2016CA00207 2
Hoffman, J.
{¶1} Defendant-appellant Kristin Lynn Butcher appeals her convictions on one
count of trafficking in heroin, in violation of R.C. 2925.03(A)(2)(C)(6)(e); one count of
possession of heroin, in violation of R.C. 2925.11(A)(C)(6)(d); and one count of
aggravated trafficking in drugs, in violation of R.C. 2925.03(A)(2)(C)(1)(a) as entered by
the Stark County Court of Common Pleas. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On January 31, 2016, a SWAT team of the Canton Police Department
executed a search warrant at 705 Fulton Road N.W., Canton, Ohio, where Appellant and
her boyfriend, Damarcus Nicholson, lived with their nine month-old child. At the time the
warrant was executed, no one was present in the home. Inside the home, officers found
a press containing drug residue, a digital scale, vinyl gloves, razor blades, ammunition, a
syringe, and a burnt spoon containing residue. Officers also found five cell phones and a
surveillance camera system.
{¶3} Prior to the issuance of the search warrant and while surveilling the area
surrounding the residence, officers observed an orange jeep operated by Damarcus
Nicholson, whom the officers learned did not have a valid driver’s license.
{¶4} During the execution of the search warrant, officers learned the defendants
would be returning to the residence. Officers then observed an orange jeep driven by
Nicholson, with Appellant as the passenger. The parties’ child was in the backseat. The
officers conducted a traffic stop, subsequently impounding and inventorying the vehicle.
Stark County, Case No. 2016CA00207 3
{¶5} During the inventory search, a yellow Crown Royal bag was found in the
center console, containing a smaller, purple Crown Royal bag, which, in turn, contained
smaller baggies of suspected heroin; a digital scale, and a pill bottle containing two bags
of a purple substance suspected to be heroin.
{¶6} The parties were placed under arrest. Inside Appellant’s purse, officers
found one cell phone and an oxycodone/acetaminophen tablet. Codefendant Nicholson
had two cell phones and $714 in currency on his person.
{¶7} The officers learned the car was owned by Enterprise Rental Car, and
rented in the name of Latonia Billings, Nicholson’s mother. Neither Appellant, nor her
codefendant Nicholson were named as authorized drivers of the vehicle.1
{¶8} Officer Joseph Bays of the Canton Police Department conducted the
investigation, and testified the evidence was found to be heroin and fentanyl, and was
consistent with trafficking of heroin.
{¶9} Officers obtained a warrant for the cell phones found on the defendants and
at the residence. Text messages obtained from the cell phones indicate the parties
engaged in the trafficking of heroin. Tr. at 240. The messages state in part someone could
“try then buy,” the sender was a dealer not a user, and the dealer had a new type of drug,
which was cheaper than the previous drug. Tr. at 244.
{¶10} On Appellant’s pink cell phone obtained from her purse, the texts indicated
Appellant received messages consistent with trafficking in heroin. One message indicated
the person wanted “D…to front me a 20,” indicating Damarcus would front the person $20
1
We note, although not raised by the state herein, Appellant arguably lacks standing to
challenge the evidence seized from the car, as Appellant does not have a possessory
interest in the vehicle.
Stark County, Case No. 2016CA00207 4
worth of heroin. Others indicated the purchasers would trade a child support card for
heroin, a Kindle Fire, employment checks, tattoos, and a car with the title. Most text
messages indicated a cash purchase of heroin. 2
{¶11} On August 10, 2016, the Stark County Grand Jury indicted Appellant on four
counts: one count of trafficking in heroin, a Schedule I substance, in violation of R.C.
2925.03(A)(2)(C)(6)(e), a felony of the second degree; one count of possession of heroin,
a Schedule I substance, in violation of R.C. 2925.11(A)(C)(6)(d), a felony of the second
degree; one count of aggravated trafficking in drugs, fentanyl, a Schedule II substance,
in violation of R.C. 2925.03(A)(2)(C)(1)(a), a felony of the fourth degree; and one count
of aggravated possession of drugs, oxycodone/acetaminophen, a Schedule II substance,
a felony of the fifth degree.3 Appellant was indicted on the first three counts as both a
principal and for complicity with codefendant Damarcus Nicholson.
{¶12} The Bill of Particulars states as to the first count, “Defendants had a heroin
press located in the dining room of their home. When stopped shortly thereafter, located
in the console of the vehicles [sic] Defendants were driving, was a crown royal bag which
contained the heroin, small baggies and a digital scale.” The Bill of Particulars reiterated
the facts with regard to the fentanyl as charged in Count Three.
{¶13} Following a jury trial, Appellant was convicted of the charges. On October
11, 2016, the trial court entered judgment finding Appellant guilty by jury. Via separate
2
Appellant was often referred to in the messages as “Queen.” For purposes of this appeal,
we have not restated each text message introduced at trial nor the context of each text
message. We find the text messages, in addition to the testimony of law enforcement
officers, indicate the trafficking of heroin.
3
Appellant does not appeal her conviction for aggravated possession of drugs,
oxycodone/acetaminophen, in violation of R.C. 2925.11(A)(C)(1)(a).
Stark County, Case No. 2016CA00207 5
Judgment Entry of October 11, 2016, the trial court entered sentence, imposing an
aggregate twelve month prison term. 4
{¶14} Appellant appeals, assigning as error,
{¶15} I. APPELLANT’S CONVICTIONS ON COUNTS ONE THROUGH THREE
OF THE INDICTMENT ARE AGAINST THE SUFFICIENCY AND MANIFEST WEIGHT
OF THE EVIDENCE.
I.
{¶16} The legal concepts of sufficiency of the evidence and weight of the evidence
are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St. 3d 380,
1997–Ohio–52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review
for a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio
St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio
Supreme Court held, “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 the crime proven beyond a reasonable doubt.”
{¶17} The jury found Appellant guilty of all three counts as indicted. Appellant’s
codefendant Damarcus Nicholson was indicted and found guilty on the same charges.
4
A recitation of the sentence imposed is unnecessary for resolution of the appeal as
Appellant does not assign error in the sentence rendered.
Stark County, Case No. 2016CA00207 6
Appellant maintains her convictions were against the manifest weight and sufficiency of
the evidence as the State failed to prove she knowingly possessed the drugs at issue.
{¶18} R.C. 2901.22(B) defines knowingly as,
(B) A person acts knowingly, regardless of purpose, when the person
is aware that the person's conduct will probably cause a certain result or will
probably be of a certain nature. A person has knowledge of circumstances
when the person is aware that such circumstances probably exist. When
knowledge of the existence of a particular fact is an element of an offense,
such knowledge is established if a person subjectively believes that there is
a high probability of its existence and fails to make inquiry or acts with a
conscious purpose to avoid learning the fact.
{¶19} Appellant was charged in the offenses as both a principal and as an
accomplice. “Complicity” is defined in R.C. 2923.03(A)(2), which reads,
(A) No person, acting with the kind of culpability required for the
commission of an offense, shall do any of the following:
***
(2) Aid or abet another in committing the offense;
***
{¶20} To support a conviction for complicity, the State must demonstrate the
defendant supported, assisted, encouraged, cooperated with, advised, or incited the
Stark County, Case No. 2016CA00207 7
principal in the commission of the crime, and the defendant shared the criminal intent of
the principal. State v. Johnson 93 Ohio St. 3d 240, 754 N.E.2d 796, 2001-Ohio-1336.
Intent may be inferred from the circumstances surrounding the crime. Id. The fact that
defendant did not articulate her intent will not allow her to escape responsibility for her
clear actions of complicity by aiding and abetting in the commission of the crimes. Id.
{¶21} In order to constitute aiding and abetting, the accused must have taken
some role in causing the commission of the offense. State v. Sims (1983), 10 Ohio App. 3d
56, 10 OBR 65, 460 N.E.2d 672. “[T]he mere presence of an accused at the scene of a
crime is not sufficient to prove, in and of itself, that the accused was an aider and abettor.”
State v. Widner (1982), 69 Ohio St. 2d 267, 269, 23 O.O.3d 265, 431 N.E.2d 1025.
Additionally, even if the accused has knowledge of the commission of the crime, his
presence at the scene is not enough to convict him of aiding and abetting. State v.
Cummings (Apr. 21, 1992), Franklin App. No. 90AP–1144, 1992 WL 82783, citing United
States v. Head (C.A.6, 1991), 927 F.2d 1361, 1373; State v. Woods (1988), 48 Ohio
App.3d 1, 2, 548 N.E.2d 954.
{¶22} Aiding and abetting may be shown by both direct and circumstantial
evidence, and participation may be inferred from presence, companionship, and conduct
before and after the offense is committed. State v. Cartellone (1981), 3 Ohio App. 3d 145,
150, 3 OBR 163, 444 N.E.2d 68, citing State v. Pruett (1971), 28 Ohio App. 2d 29, 34, 57
O.O.2d 38, 273 N.E.2d 884. Aiding and abetting may also be established by overt acts of
assistance such as driving a getaway car or serving as a lookout. Id. at 150, 3 OBR 163,
444 N.E.2d 68. See State v. Trocodaro (1973), 36 Ohio App. 2d 1, 65 O.O.2d 1, 301
Stark County, Case No. 2016CA00207 8
N.E.2d 898; State v. Lett, 2005-Ohio-1308, ¶¶ 27-29, 160 Ohio App. 3d 46, 52, 825
N.E.2d 1158, 1163.
{¶23} R.C. 2925.03(A)(2) defines the offense of drug trafficking,
(A) No person shall knowingly do any of the following:
***
(2) Prepare for shipment, ship, transport, deliver, prepare for
distribution, or distribute a controlled substance or a controlled substance
analog, when the offender knows or has reasonable cause to believe that
the controlled substance or a controlled substance analog is intended for
sale or resale by the offender or another person.
{¶24} R.C. 2925.11(A) sets forth the elements of possession of drugs, “(A) No
person shall knowingly obtain, possess, or use a controlled substance or a controlled
substance analog.”
{¶25} We find the evidence in the vehicle, coupled with the text messages and
evidence obtained during the execution of the search warrant on the residence introduced
at trial herein, sufficient to establish Appellant knowingly engaged in the drug activity as
a principal and/or as an accomplice. Appellant’s convictions are not against the manifest
weight and sufficiency of the evidence, and the sole assignment of error is overruled.
Stark County, Case No. 2016CA00207 9
{¶26} The judgment of the Stark County Court of Common Pleas is affirmed.
By: Hoffman, J.
Delaney, P.J. and
Wise, John, J. concur