State v. Huffman ( 2012 )

[Cite as State v. Huffman, 2012-Ohio-659.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. W. Scott Gwin, J.
: Hon. William B. Hoffman, J.
-vs- :
: Case No. 11-COA-022
VIEBBA NAHLENE HUFFMAN :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Ashland County Court of
Common Pleas, Case No. 11 CRI-016
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: February 7, 2012
APPEARANCES:
For Appellant: For Appellee:
DAVID R. STIMPERT RAMONA FRANCESCONI ROGERS
10 East Main Street ASHLAND COUNTY PROSECUTOR
Ashland, OH 44805
ANDREW N. BUSH
Assistant Prosecuting Attorney
110 Cottage Street
Ashland, OH 44805
[Cite as State v. Huffman, 2012-Ohio-659.]
Delaney, J.
{¶1} Defendant-appellant Viebba Nahlene Huffman appeals her conviction
and sentence for three counts of aggravated trafficking in methamphetamine. Plaintiff-
appellee is the State of Ohio.
STATEMENT OF FACTS AND THE CASE
{¶2} This case arose when Detective Donald Garrison used a confidential
informant to arrange three controlled buys of methamphetamine from appellant on
December 8 and 9, 2010. Prior to each buy, investigators searched the informant and
her vehicle for contraband and found none. During each buy, the informant wore a
body wire and carried a small video recording device to record each transaction, with
Garrison and other investigators listening to the transactions as they took place.
Immediately after each buy, the informant met with investigators and turned over the
methamphetamine she had purchased.
{¶3} The substance recovered by investigators after each transaction tested
positive as methamphetamine.
{¶4} Appellant was charged by indictment with three counts of aggravated
drug trafficking, each a felony of the fourth degree.
{¶5} Appellant entered pleas of not guilty and the case proceeded to trial by
jury. Appellant was found guilty on all counts. The trial court sentenced appellant to
three consecutive prison terms of twelve months each, in addition to a fine of $1,000
plus court costs on each count and three concurrent 5-year operator’s license
suspensions.
{¶6} Appellant now appeals from her conviction and sentence.
Ashland County, Case No. 11-COA-022 3
{¶7} Appellant raises two Assignments of Error:
{¶8} “I. DEFENDANT/APPELLANT’S CONVICTIONS FOR AGGRAVATED
TRAFFICKING IN DRUGS, IN VIOLATION OF OHIO REVISED CODE SECTION
2925.03(A)(1), WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
{¶9} “II. THE COURT OF COMMON PLEAS OF ASHLAND COUNTY,
OHIO, IMPOSED CONSECUTIVE SENTENCES UPON DEFENDANT/APPELLANT
PURSUANT TO OHIO REVISED CODE 2929.14(E)(4); SAID CONSECUTIVE
SENTENCES EXCEEDED THE MAXIMUM PRISON TERM ALLOWED BY OHIO
REVISED CODE SECTION 2929.14(A)(4), AND WERE CLEARLY AND
CONVINCINGLY CONTRARY TO LAW AND/OR AN ABUSE OF SAID COURT’S
DISCRETION.”
I.
{¶10} In her first assignment of error, appellant argues that her conviction on
three counts of aggravated drug trafficking was against the manifest weight of the
evidence. We disagree.
{¶11} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and “after reviewing
the entire record, weighs the evidence and all reasonable inferences, considers the
credibility of witnesses and determines whether in resolving conflicts in the evidence,
the jury 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, 678 N.E.2d 541 (1987). Reversing a conviction as being against the
manifest weight of the evidence and ordering a new trial should be reserved for only
Ashland County, Case No. 11-COA-022 4
the “exceptional case in which the evidence weights heavily against the conviction.”
Id.{¶12} Appellant was convicted upon trial by jury of three counts of aggravated
trafficking in drugs pursuant to R.C. 2925.03(A)(1), which states, “No person shall
knowingly sell or offer to sell a controlled substance.” The substance involved is
methamphetamine, a Schedule I controlled substance, therefore these offenses are
felonies of the fourth degree.
{¶13} At trial, the State’s evidence consisted of the testimony of Detective
Garrison and the confidential informant. With text messages, the informant arranged
a series of three controlled buys of methamphetamine from appellant. Each buy was
recorded on a small video camera, and investigators listened to the transactions live
over a body wire. The jury listened to the recordings of the transactions and viewed
the substance recovered in each of the controlled buys. Appellant stipulated that the
substances recovered in the transactions were methamphetamine. Based upon this
evidence, we cannot conclude that the jury clearly lost its way and created a manifest
miscarriage of justice in convicting appellant of three counts of aggravated drug
trafficking.
{¶14} In reviewing the weight of the evidence, we determine that the greater
amount of credible evidence supports the jury’s verdict, and the jury did not lose its
way and create such a manifest miscarriage of justice that the convictions must be
reversed and a new trial ordered.
{¶15} Appellant’s first assignment of error is overruled.
Ashland County, Case No. 11-COA-022 5
II.
{¶16} In her second assignment of error, appellant argues that the trial court
abused its discretion in sentencing her to consecutive prison terms. We disagree.
{¶17} This Court has held that trial courts have full discretion to impose a
prison sentence within the statutory range and we review the imposition of
consecutive sentences under and abuse-of-discretion standard. State v. Firouzmandi,
5th Dist. No. 06-CA-41, 2006-Ohio-5823, ¶40; State v. Duff, 5th Dist. No. 06-CA-81,
2007-Ohio-1294, ¶6.
{¶18} The Ohio Supreme Court has established a two-step analysis for
reviewing a felony sentence. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896
N.E.2d 124. The first step is to “examine the sentencing court’s compliance with all
applicable rules and statutes in imposing the sentence to determine whether the
sentence is clearly and convincingly contrary to law.” Id. at ¶4. The second step
requires the trial court’s decision to be reviewed under an abuse-of-discretion
standard. Id.
{¶19} Appellant challenges the trial court’s imposition of consecutive sentences
as an abuse of discretion, asserting that her history of criminal conduct does not
demonstrate that consecutive sentences were necessary to protect the public from
future crime. We note, however, that although appellant characterizes her criminal
history as “limited,” it includes convictions for manufacturing and use of
methamphetamine, the same substance she was convicted of trafficking in the instant
case. The trial court’s attitude in imposing consecutive sentences, therefore, was not
Ashland County, Case No. 11-COA-022 6
unreasonable, arbitrary, or unconscionable. See, Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶20} Appellant’s sentences are within the statutory range, and the trial court
did not abuse its discretion by imposing consecutive sentences.
By: Delaney, P.J.
Gwin, J. and
Hoffman, J. concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN
[Cite as State v. Huffman, 2012-Ohio-659.]
IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
:
Plaintiff-Appellant :
:
-vs- : JUDGMENT ENTRY
:
VIEBBA NAHLENE HUFFMAN :
:
: Case No. 11-COA-022
Defendant-Appellant :
For the reasons stated in our accompanying Opinion on file, the judgment of the
Ashland County Court of Common Pleas is affirmed. Costs assessed to Appellant.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN