State v. Jones , 2021 Ohio 2457 ( 2021 )

[Cite as State v. Jones, 2021-Ohio-2457.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 5-20-34
v.
TOMMY E. JONES, OPINION
DEFENDANT-APPELLANT.
Appeal from Hancock County Common Pleas Court
Trial Court No. 2020 CR 22
Judgment Affirmed
Date of Decision: July 19, 2021
APPEARANCES:
William T. Cramer for Appellant
Phillip A. Riegle for Appellee
Case No. 5-20-34
ZIMMERMAN, J.
{¶1} Defendant-appellant, Tommy E. Jones (“Jones”), appeals the October
28, 2020 judgment entry of sentence of the Hancock County Court of Common
Pleas. For the reasons that follow, we affirm.
{¶2} The genesis of this case stems from a January 12, 2020 traffic stop
involving Jones wherein a free-air sniff by a K9 unit resulted in the discovery of
two Oxycodone pills found in a plastic baggie concealed under a hat in the rear
passenger seat of Jones’s car. (Sept. 1, 2020 Tr. at 44, 52-54, 65, 68-69, Doc. No.
78).
{¶3} Jones was indicted on March 17 2020 by the Hancock County Grand
Jury for one count of aggravated possession of drugs (Oxycodone) in violation of
R.C. 2925.11(A), a fifth-degree felony.1 (Doc. No. 3). On March 25, 2020, Jones
was arraigned and entered a plea of not guilty. (Doc. No. 6).
{¶4} Jones’s case proceeded to a jury trial on August 31, 2020 wherein he
was found guilty of the single count in the indictment.2 (Doc. Nos. 44, 50); (Sept.
1, 2020 Tr. at 257-261, Doc. No. 78). (See Oct. 21, 2020 Tr. at 2-3, Doc. No. 79).
On October 21, 2020, the trial court sentenced Jones to five years’ community
control sanctions with the reservation of an 11-month prison term. (Oct. 21, 2020
1
Jones was later indicted in a companion case, the record for which is not before this court. (Aug. 28, 2020
Tr. at 2, Doc. No. 76); (Doc. Nos. 15, 30). (See. Oct. 21, 2020 Tr. at 2-3, 20-23, Doc. No. 79).
2
The parties agreed to defer sentencing until a later date and thereafter, the trial court ordered the preparation
of a presentence-investigation report. (Sept. 1, 2020 Tr. at 262, Doc. No. 78).
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Tr. at 18-23, Doc. No. 79); (Doc. No. 51). The trial court’s judgment entry was
filed stamped on October 28, 2020 and journalized on October 29, 2020. (Doc. Nos.
51, 52).
{¶5} Jones filed his notice of appeal on November 20, 2020 and raises one
assignment of error for our review. (Doc. No. 62).
Assignment of Error
Appellant’s conviction for aggravated drug possession was not
supported by the weight of the evidence.
{¶6} In his sole assignment of error, Jones argues that his conviction is
against the manifest weight of the evidence. In particular, Jones contends that the
testimony of Robert Myers (“Myers”), Jones’s roommate and friend, weighed
heavily against an aggravated-possession-of-drugs conviction, and thus resulted in
a manifest miscarriage of justice. (Appellant’s Brief at 8).
Standard of Review
{¶7} 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, superseded by statute on other grounds, State v. Smith, 80 Ohio St.3d 89,
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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). When applying the manifest-weight standard,
“[o]nly in exceptional cases, where the evidence ‘weighs heavily against the
conviction,’ should an appellate court overturn the trial court’s judgment.” State v.
Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v.
Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.
Analysis
{¶8} Here, Jones argues that the jury should have determined Myers to be a
credible witness as to how the pills arrived at their location in Jones’s vehicle.
Specifically, Jones contends that Myers’s testimony established that he was helping
Myers dispose of outdated and unused Oxycodone, rather than, possessing it.
“‘Although we review credibility when considering the manifest weight of the
evidence, the credibility of witnesses is primarily a determination for the trier of
fact’.” State v. Gideon, 3d Dist. Allen Nos. 1-18-27, 1-18-28, and 1-18-29, 2021-
Ohio-1863, ¶ 44, quoting State v. Banks, 8th Dist. Cuyahoga No. 96535, 2011-Ohio-
5671, ¶ 13, citing DeHass, 10 Ohio St.2d 230, at paragraph one of the syllabus.
“‘The trier of fact is best able “to view the witnesses and observe their demeanor,
gestures[,] and voice inflections, and use these observations in weighing the
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credibility of the proffered testimony.”’” Id., quoting Banks at ¶ 13, quoting State
v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, ¶ 24, citing Seasons Coal Co., Inc.
v. Cleveland, 10 Ohio St.3d 77, 80-81 (1984).
{¶9} The evidence at trial revealed that a law enforcement officer in Hancock
County observed Jones (with whom he was familiar) in his vehicle parked outside
of a residence where the officer was attempting to serve an arrest warrant on another
individual. (Sept. 1, 2020 Tr. at 59, 61, Doc. No. 78). After Jones drove from the
residence, he was stopped by law enforcement for a minor traffic offense. (Id. at
59-60). Jones (the sole occupant of the vehicle) explained to the officer that he was
dropping someone off at the residence, but was not able to recall the name of the
person. (Id. at 43, 63-64). As a result of his responses to the questions posed by the
officer, his presence in a high-crime area, and his initial refusal to answer whether
he had illegal drugs in the vehicle, the officer requested a K9 unit.3 (Id. at 65). Once
the K9 unit arrived at the scene, the K9 indicated the presence of narcotics in the
vehicle. (Id. at 44, 53, 66-67). A search of the vehicle yielded two Oxycodone pills
in small plastic bag found under a hat in the rear-passenger seat, a prescription bottle
containing pills (for Myers) in the vehicle’s console, and a large fixed-blade knife.4
(Id. at 46, 49, 50, 52-53, 68-69, 101, 103, 110-112, 186-187). (See State’s Ex. 1);
3
At the time of the traffic stop, Jones admitted to having a small knife in his pocket, which he placed on the
front-passenger seat. (Sept. 1, 2020 Tr. at 66).
4
Jones was not charged in relation to the pills contained in Myer’s prescription bottle.
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(Aug. 31, 2020 Tr. at 14-15, Doc. No. 77). When questioned by an officer later
after his arrest for carrying a concealed weapon, Jones stated that he believed the
pills belonged to his roommate Myers who may have dropped them in his vehicle
when he had been in his vehicle multiple times in the past.5 (Sept. 1, 2020 Tr. at 67,
74-75, Doc. No. 78). Upon further inquiry, Jones admitted that he knew the pills
were Percocet’s, which is the brand name for Oxycodone. (Id. at 76-77). Jones told
the officer that he thought it was okay to transport the pills and did not understand
it was a crime. (Id. at 78). Myers arrived at the jail shortly after Jones was placed
in custody. (Id. at 79, 88-89).
{¶10} Notably, Myers gave several different explanations (at trial) for how
his outdated, unused prescription medications may have ended up in Jones’s motor
vehicle. (Id. at 135-138, 185-186). Myers conceded (on cross-examination) that he
could not be sure that the drugs found in Jones’s vehicle were his prescription
medications nor was he able to identify whether the pills (found in Jones’s vehicle)
matched his prescribed dosages.6 (Id. at 160-162). Importantly, Myers testified that
the pills in question were packaged differently than when in his possession, and that
the plastic bag in which the pills were discovered contained numbers written in
5
Jones was mirandized at the time of his arrest for carrying a concealed weapon. (Sept. 1, 2020 Tr. at 74-
75, Doc. No. 78). And, he was later mirandized a second time upon arrival at the police station. (Id.).
6
Myers testified he could not recognize his prescription medications unless he could reference the bottle,
which according to his earlier testimony, he previously discarded, subsequently placing the pills in “a snack
bag” and then in a box with drawers on his computer desk. (Id. at 156-161).
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someone else’s handwriting. (Id. at 186-189). Myers testified that he placed the
pills in “a snack bag”, which is a smaller-sized plastic bag than the plastic bag
located in Jones’s vehicle and later admitted into evidence. (Id. at 157, 186).
Furthermore, Myer’s testified (in response to a juror question) that the hat that
concealed the Oxycodone pills did not belong to him. (Id. at 187). We cannot
second guess the jury’s credibility determination of Myers because it is unclear from
the record if the jury found Myers to lack credibility (in the first instance) given his
testimony. See State v. Sheldon, 3d Dist. Hardin No. 6-18-07, 2019-Ohio-4123, ¶
45. Moreover, it is within the province of the jury to determine whether or not
Myers was credible and nothing in the record established such determination created
a manifest injustice.
{¶11} After reviewing the entire record, we cannot conclude that the jury
herein lost its way and created such a manifest miscarriage of justice in its witness-
credibility determination regarding Myers that we are required to reverse Jones’s
aggravated-possession-of-drugs conviction and order a new trial.
{¶12} Accordingly, Jones’s sole assignment of error is overruled.
{¶13} 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
WILLAMOWSKI, P.J. and SHAW, J., concur.
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