State v. Shannon , 2016 Ohio 8220 ( 2016 )

[Cite as State v. Shannon, 2016-Ohio-8220.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2015-P-0077
- vs - :
JOSEPH J. SHANNON, JR., :
Defendant-Appellant. :
Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2015 CR
00072.
Judgment: Affirmed.
Victor V. Vigluicci, Portage County Prosecutor, and Kristina Reilly, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Paul M. Grant, 209 South Main Street, Eighth Floor, Suite 3, Akron, OH 44308 (For
Defendant-Appellant).
THOMAS R. WRIGHT, J.
{¶1} Appellant, Joseph J. Shannon, Jr., appeals his conviction for trafficking
heroin with a schoolyard specification. He raises three arguments on appeal following
his bench trial. We affirm.
{¶2} On September 30, 2014, the Portage County Drug Task Force used a
confidential informant to purchase heroin from Shannon at a home located on Clinton
Street in Ravenna, Ohio.
{¶3} The confidential informant, Heidi Sexton, testified that she has an
extensive history of drug abuse and has previously purchased drugs from Shannon.
She confirmed that she was clean at the time of her testimony. Sexton agreed to assist
the task force with several undercover drug buys in exchange for the task force’s
recommendation that certain drug paraphernalia charges against her be dismissed.
{¶4} Sexton testified that she used the $40 provided to her by the task force to
purchase heroin from Shannon at his girlfriend’s home. Shannon met her at the door,
sold her $40 worth of heroin, and she left. She immediately walked back to the agents’
vehicle and kept the baggie of heroin in her hand until she handed it to Detective
Clouden. It was the size of a small marble. Sexton was patted down by the agents
before and after the transaction. She agreed that the Clinton Street residence where
the exchange occurred is approximately one block from an elementary school.
{¶5} Before the transactions, Sexton was wired for audio and visual by the task
force. However, the recording does not capture Shannon’s image due to poor lighting
and the angle of the camera. The recording shows a male answering the door, and
depicts Sexton almost immediately saying thank you, turning around, and leaving the
home.
{¶6} Detective Robert Clouden Jr., a member of the drug task force, explained
at trial that Sexton returned to his vehicle after the drug buy with .15 grams of heroin.
Clouden testified that the house on Clinton Street was approximately 400 feet from an
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elementary school and that he drove past the school on his way to the transaction.
Clouden used Google Earth to confirm that the distance was 408 feet.
{¶7} The task force never recovered the money provided to Sexton from
Shannon because they did not arrest him immediately since they planned on conducting
more monitored drug buys from him, but the opportunity never materialized.
{¶8} Shannon raises three assigned errors:
{¶9} “The trial court erred as a matter of law in denying Shannon’s Crim.R. 29
motion because the state failed to establish on the record sufficient evidence to support
the charges levied against Shannon in violation of the Due Process Clause of the 14th
Amendment to the U.S. Constitution and Article I, Sections 1, 10, & 16 of the Ohio
Constitution.
{¶10} “Shannon’s convictions are against the manifest weight of the evidence
possession [sic] in violation of the Due Process Clause of the 14th Amendment to the
U.S. Constitution and Article I, Sections 1, 10 & 16 of the Ohio Constitution.
{¶11} “Shannon was denied his right to effective assistance of counsel
guaranteed under the Sixth Amendment to the U.S. Constitution and Article I, Sections
1, 10 & 16 of the Ohio Constitution.”
{¶12} Shannon’s first assignment of error and his first sub-issue under his
second assigned error both challenge the schoolyard specification. His first assigned
error alleges insufficient evidence and his second assigned error alleges his conviction
is against the manifest weight of the evidence. Both assert that the state failed to prove
that he recklessly sold heroin within 1,000 feet of a school.
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{¶13} A sufficiency review presents a question of law and does not allow us to
weigh the evidence. State v. Duncan, 3d Dist. Allen No. 1-10-59, 2011-Ohio-1168, ¶8,
citing State v. Martin, 20 Ohio App.3d 172, 175, 20 Ohio B. 215, 485 N.E.2d 717 (1983).
Instead, an appellate court reviewing the sufficiency of the evidence determines the
adequacy of the evidence and must decide if the evidence submitted at trial, if believed,
supports a guilty finding beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259,
273, 574 N.E.2d 492 (1991). Our standard of review is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
have found all the essential elements of the offense beyond a reasonable doubt. Id.{¶14} “Unlike sufficiency of the evidence, the question of manifest weight does
not view the evidence in a light most favorable to the prosecution.” Duncan, supra, ¶9.
Instead, a manifest weight of the evidence challenge requires a reviewing court to weigh
the evidence and act as a “thirteenth juror.” However, we still must give deference to
the fact-finder’s findings and award a new trial “only in the exceptional case in which the
evidence weighs heavily against conviction.” State v. Thompkins, 78 Ohio St.3d at 380,
387, 678 N.E.2d 541 (1997); State v. Thompson, 127 Ohio App.3d 511, 529, 713
N.E.2d 456 (1998).
{¶15} Regardless of which standard we apply, Shannon’s argument lacks merit
since the state did not have to prove that he recklessly sold heroin within 1,000 feet of a
school. R.C. 2925.01(P) states:
{¶16} “(P) An offense is ‘committed in the vicinity of a school’ if the offender
commits the offense on school premises, in a school building, or within one thousand
feet of the boundaries of any school premises, regardless of whether the offender
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knows the offense is being committed * * * within one thousand feet of the boundaries of
any school premises.” (Emphasis added.)
{¶17} Shannon’s argument, premised on the Supreme Court’s interpretation of a
prior version of the definition of “in the vicinity of a school” in State v. Lozier, 101 Ohio
St.3d 161, 2004-Ohio-732, is misplaced because Lozier was superseded by the
foregoing definition. “The enhancement is now a strict liability element of the crimes to
which it applies.” State v. Davis, 7th Dist. Mahoning No. 05MA235, 2008-Ohio-2927,
¶3; State v. Stigall, 6th Dist. Lucas No. L-14-1053, 2015-Ohio-137, ¶12 (noting that the
legislature amended the definition of “in the vicinity of a school” several months after
Lozier). Accordingly, Shannon’s first assignment of error and his first sub-issue under
his second assigned error lack merit and are overruled.
{¶18} Shannon’s second argument under his second assignment of error
asserts the state failed to prove beyond a reasonable doubt that he is the individual that
sold Sexton the drugs. In support, Shannon claims that Sexton was not a credible
witness and her testimony was unsupported.
{¶19} The credibility of a witness’s testimony is an issue primarily reserved for
the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212, paragraph one of
the syllabus (1967); State v. Armstrong, 8th Dist. Cuyahoga Nos. 87456, 87457, 2006-
Ohio-5447, ¶20. A reviewing court must defer to the judge’s findings on appeal from a
bench trial on witness credibility because the trial court judge had the opportunity “to
view the witnesses and observe their demeanor, gestures and voice inflections, and use
these observations in weighing the credibility of the proffered testimony.” State v.
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Fielding, 2014-Ohio-3105, 15 N.E.3d 912, ¶31 (10th Dist.), quoting Seasons Coal Co. v.
Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984).
{¶20} Thus, whether or not Sexton’s testimony was credible and convincing was
for the trial court judge to decide. Further, Sexton’s history of drug abuse was before
the trial court along with her testimony that she purchased heroin from Shannon. There
was no evidence to the contrary. Thus, Shannon’s conviction is not contrary to the
weight of the evidence, and his second assignment of error is overruled.
{¶21} Shannon’s third assigned error claims he was denied the effective
assistance of trial counsel based on his attorney’s failure to ensure that the state proved
that he recklessly sold drugs within the vicinity of a school. This argument, however, is
also based on the erroneous premise that the state had to prove that Shannon
recklessly sold heroin in the vicinity of a school. State v. Davis, 7th Dist. Mahoning No.
05MA235, 2008-Ohio-2927, ¶3; State v. Stigall, 6th Dist. Lucas No. L-14-1053, 2015-
Ohio-137, ¶12. Thus, Shannon’s third assignment of error lacks merit because selling
drugs in the vicinity of a school is a strict liability specification.
{¶22} Based on the foregoing, the judgment of the Portage County Court of
Common Pleas is affirmed.
TIMOTHY P. CANNON, concurs,
COLLEEN MARY O’TOOLE, concurs in judgment only.
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