State v. Smith ( 2020 )

[Cite as State v. Smith, 2020-Ohio-427.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 13-19-26
v.
ANTONIO M. SMITH, OPINION
DEFENDANT-APPELLANT.
Appeal from Seneca County Common Pleas Court
Trial Court No. 18 CR 0282
Judgment Affirmed
Date of Decision: February 10, 2020
APPEARANCES:
Brian A. Smith for Appellant
Angela M. Boes for Appellee
Case No. 13-19-26
PRESTON, J.
{¶1} Defendant-appellant, Antonio M. Smith (“Smith”), appeals the June 25,
2019 judgment of sentence of the Seneca County Court of Common Pleas. For the
reasons that follow, we affirm.
{¶2} This case stems from four controlled drug purchases conducted in
Fostoria, Ohio in July and August 2018. To arrange each of the purchases, a
confidential informant used Facebook and Facebook Messenger to communicate
with a person who used a Facebook account registered in Smith’s name. Smith was
physically present at only two of the controlled drug purchases. During the other
two operations, the confidential informant transacted solely with Smith’s twin
brother, Marques Smith (“Marques”). By the end of the investigation, the four
controlled buys had yielded cocaine as well as alprazolam pills.
{¶3} On December 7, 2018, the Seneca County Grand Jury indicted Smith
on five counts: Count One of trafficking in cocaine in violation of R.C.
2925.03(A)(1), (C)(4)(a), a fifth-degree felony; Count Two of trafficking in drugs
in violation of R.C. 2925.03(A)(1), (C)(2)(a), a fifth-degree felony; Count Three of
complicity to trafficking in cocaine in violation of R.C. 2923.03(A)(2), (F) and
2925.03(A)(1), (C)(4)(b), a fourth-degree felony; and Counts Four and Five of
complicity to trafficking in cocaine in violation of R.C. 2923.03(A)(2), (F) and
2925.03(A)(1), (C)(4)(a), fifth-degree felonies. (Doc. No. 1). Count Three of the
-2-
Case No. 13-19-26
indictment included an enhancement specifying that the charged offense was
committed in the vicinity of a juvenile. (Id.). On December 19, 2018, Smith
appeared for arraignment and entered pleas of not guilty to the counts contained in
the indictment. (Doc. No. 8).
{¶4} A jury trial was held on May 6-8, 2019. During the course of the trial,
Smith moved for a mistrial, which the trial court denied. (May 6-8, 2019 Tr., Vol.
II, at 244-247). On May 8, 2019, the jury found Smith guilty on all counts, and it
found that the offense charged in Count Three was committed in the vicinity of a
juvenile. (Doc. No. 26).
{¶5} On June 24, 2019, the trial court sentenced Smith to 10 months in prison
on Count One, 10 months in prison on Count Two, 15 months in prison on Count
Three, 10 months in prison on Count Four, and 10 months in prison on Count Five.
(Doc. No. 33). The trial court ordered that the sentences for Counts One, Two, and
Three be served consecutively to each other and that the sentences for Counts Four
and Five be served concurrently with each other and concurrently with the
consecutive sentences imposed for Counts One, Two, and Three. (Id.). Thus, the
trial court sentenced Smith to an aggregate term of 35 months in prison. (Id.). The
trial court filed its judgment entry of sentence on June 25, 2019. (Id.).
{¶6} On July 10, 2019, Smith filed a notice of appeal. (Doc. No. 37). He
raises three assignments of error for our review.
-3-
Case No. 13-19-26
Assignment of Error No. I
Because the jury lost its way and created a manifest miscarriage
of justice in finding Appellant guilty of Trafficking in Cocaine,
Trafficking in Drugs, and Complicity to Trafficking in Cocaine,
Appellant’s convictions were against the manifest weight of the
evidence.
{¶7} In his first assignment of error, Smith argues that his trafficking-in-
cocaine, trafficking-in-drugs, and complicity-to-trafficking-in-cocaine convictions
are against the manifest weight of the evidence. Specifically, Smith argues that his
convictions are against the manifest weight of the evidence because the evidence
does not support a finding that he was the person who sent the Facebook messages
to the confidential informant arranging the drug sales. (Appellant’s Brief at 8-11).
In addition, Smith argues that the evidence weighs against a finding that one of the
offenses was committed in the vicinity of a juvenile, as charged in Count Three of
the indictment, because the State’s witnesses offered only estimates of the distance
between the juveniles and the drug transaction and simply speculated that juveniles
could have seen the transaction. (Id. at 11-12). Finally, Smith argues that his
convictions are against the manifest weight of the evidence because they are based
largely on the testimony of the confidential informant who, according to Smith,
“was not credible due to his financial incentive to cooperate with police” and “was
also not credible due to his prior criminal history.” (Id. at 12-13).
-4-
Case No. 13-19-26
{¶8} 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 (1997), 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.
{¶9} Smith was convicted of one count of trafficking in cocaine, one count
of trafficking in drugs, and three counts of complicity to trafficking in cocaine. The
offenses of trafficking in cocaine and trafficking in drugs are codified in R.C.
2925.03(A)(1), which provides that “[n]o person shall knowingly * * * [s]ell or offer
to sell a controlled substance or a controlled substance analog.” “A person acts
knowingly, regardless of purpose, when the person is aware that the person’s
-5-
Case No. 13-19-26
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.” R.C. 2901.22(B).
{¶10} R.C. 2923.03, Ohio’s complicity statute, provides, in relevant part,
that “[n]o person, acting with the kind of culpability required for the commission of
an offense, shall * * * [a]id or abet another in committing the offense.” R.C.
2923.03(A)(2).
To support a conviction for complicity by aiding and abetting
pursuant to R.C. 2923.03(A)(2), the evidence must show that the
defendant supported, assisted, encouraged, cooperated with, advised,
or incited the principal in the commission of the crime, and that the
defendant shared the criminal intent of the principal. Such intent may
be inferred from the circumstances surrounding the crime.
State v. Johnson, 93 Ohio St. 3d 240 (2001), syllabus. “‘“Evidence of aiding and
abetting may be shown by either direct or circumstantial evidence, and participation
in criminal intent may be inferred from presence, companionship, and conduct
before and after the offense is committed.”’” State v. Wright, 3d Dist. Hardin No.
6-15-14, 2016-Ohio-5465, ¶ 9, quoting State v. Rowe, 3d Dist. Seneca No. 13-10-
14, 2011-Ohio-5739, ¶ 32, quoting State v. Gragg, 173 Ohio App. 3d 270, 2007-
Ohio-4731, ¶ 21 (12th Dist.).
-6-
Case No. 13-19-26
{¶11} Finally, with respect to the complicity-to-trafficking-in-cocaine
offense charged in Count Three of the indictment, it was alleged that the trafficking-
in-cocaine offense to which Smith was allegedly complicit was committed in the
vicinity of a juvenile. An offense is committed in the vicinity of a juvenile if
the offender commits the offense within one hundred feet of a juvenile
or within the view of a juvenile, regardless of whether the offender
knows the age of the juvenile, whether the offender knows the offense
is being committed within one hundred feet of or within view of the
juvenile, or whether the juvenile actually views the commission of the
offense.
R.C. 2925.01(BB).
{¶12} At trial, the State first offered the testimony of Detective Brandon Bell
(“Detective Bell”) of the City of Fostoria Police Department. (See May 6-8, 2019
Tr., Vol. I, at 95-96). Detective Bell testified that the first controlled drug purchase
took place on July 23, 2018 at Marques’s house. (Id. at 119-120, 125-126). The
confidential informant initially advised Detective Bell that crack cocaine would be
purchased from Smith and that alprazolam pills would be purchased from a second
individual. (Id. at 120-121). Detective Bell testified that, after completing the
purchase and exiting Marques’s house, the confidential informant was picked up, at
which time he turned over to officers “what appeared to be crack cocaine * * * [and]
-7-
Case No. 13-19-26
18 alprazolam or Xanax tablets * * *.” (Id. at 129). Detective Bell stated that the
confidential informant was paid $100 for his role in the July 23, 2018 controlled
buy. (Id. at 137). Detective Bell was then shown State’s Exhibit 15, a still
photograph adapted from a frame of the covert video recording of the July 23, 2018
controlled buy, and he testified that Smith was the person depicted in the photograph
conducting the sale. (Id. at 144-145); (State’s Ex. 15).
{¶13} Detective Bell then testified about the second controlled drug
transaction. (May 6-8, 2019 Tr., Vol. II, at 145). Detective Bell stated that the
second controlled purchase took place on August 9, 2018 at Jackson Park in
Fostoria, Ohio and that the same confidential informant conducted the purchase.
(Id. at 145, 148-149). Detective Bell stated that he was told by the confidential
informant that the confidential informant had “set up the [August 9, 2018] controlled
purchase [of cocaine] with * * * Smith utilizing Facebook Messenger or Facebook.”
(Id. at 145-146, 156). Detective Bell testified that the confidential informant
allowed him to view the Facebook messages and that the messages consisted of
“normal drug talk.” (Id. at 157-158). Detective Bell testified that he believed that
the Facebook messages he viewed on the confidential informant’s phone were sent
by Smith because the “header” on the message thread indicated that the messages
were being sent from a Facebook account registered in Smith’s name. (Id. at 157-
158).
-8-
Case No. 13-19-26
{¶14} Detective Bell stated that on August 9, 2018, he dropped off the
confidential informant at Jackson Park, where the confidential informant waited on
a park bench until a black Cadillac arrived. (Id. at 150). The confidential informant
then entered the vehicle, and the vehicle traveled a short distance before the
confidential informant was let out of the car and picked up by Detective Bell. (Id.).
Detective Bell was able to determine that the black Cadillac was registered to
Marques. (Id. at 151). Once the confidential informant was picked up by Detective
Bell, he turned over a package containing cocaine to Detective Bell. (Id. at 152).
According to Detective Bell, although the confidential informant said that he had
planned to purchase the cocaine directly from Smith and thought he would be
meeting with Smith, he actually purchased the cocaine from Marques. (Id. at 155-
156). Detective Bell testified that after reviewing the covert video recording of the
controlled purchase and still images adapted from that recording, he was able to
identify Marques as the seller of the cocaine during the August 9, 2018 controlled
buy. (Id. at 164-166); (State’s Exs. 5, 6). Detective Bell testified that the
confidential informant was paid $125 for participating in the August 9, 2018
purchase. (May 6-8, 2019 Tr., Vol. II, at 153).
{¶15} Detective Bell also testified that juveniles were present in Jackson
Park during the August 9, 2018 controlled purchase. (Id. at 158). According to
Detective Bell, juveniles were observed playing “just north” of the street that bisects
-9-
Case No. 13-19-26
the park, and he testified that the confidential informant estimated that the children
were approximately 75 feet away from the controlled buy—an estimate that was
confirmed by another officer at the scene who observed the juveniles. (Id. at 159).
{¶16} Next, Detective Bell testified that a third controlled drug purchase was
conducted by the same confidential informant on August 13, 2018. (Id. at 166).
Detective Bell stated that the confidential informant once again used Facebook to
arrange the transaction with Smith. (Id.). However, unlike the earlier controlled
purchases, the confidential informant also had contact with Marques via Facebook.
(Id. at 179). Detective Bell testified that the confidential informant showed him the
messages sent from both Smith’s account and Marques’s account and that he
documented the messages by taking photographs of the messages. (Id. at 179-181);
(State’s Exs. 25, 27). Detective Bell testified that he believed that Smith and
Marques were the persons who sent the messages because the “headers” on the
message threads indicated that the messages were being sent from Smith’s and
Marques’s Facebook accounts, respectively. (May 6-8, 2019 Tr., Vol. II, at 180-
181). Detective Bell stated that the messages between Smith and the confidential
informant are “consistent with that of setting up a drug purchase.” (Id. at 181).
{¶17} Detective Bell stated that the August 13, 2018 controlled drug
purchase also took place at Jackson Park. (Id. at 168-169). During this operation,
the confidential informant waited until a white GMC SUV pulled into the park. (Id.
-10-
Case No. 13-19-26
at 169). Detective Bell testified that the white GMC SUV was registered to Smith’s
girlfriend and that Smith was listed as an additional owner on the registration. (Id.
at 170). He stated that once the SUV arrived, the confidential informant entered the
vehicle, after which the vehicle traveled a short distance on the streets surrounding
the park before the confidential informant exited the vehicle. (Id. at 170-171). After
exiting the vehicle, the confidential informant turned over a baggie containing
cocaine. (Id. at 171). Detective Bell testified that the confidential informant
received $125 for the August 13, 2018 operation. (Id. at 176).
{¶18} Detective Bell stated that the August 13, 2018 controlled purchase did
not occur as expected. (Id. at 177). He stated that although the confidential
informant had arranged to buy the cocaine directly from Smith, the cocaine was
actually purchased directly from Marques. (Id. at 178). According to Detective
Bell, Smith was driving the white GMC SUV and Marques was in the passenger
seat. (Id.). Because Smith was driving, the transaction was ultimately completed
with Marques. (Id.). Detective Bell was able to identify both Smith and Marques
from the covert video recording of the controlled drug purchase and the still images
derived from that recording. (Id. at 183); (See State’s Exs. 8, 9, 10, 11).
Specifically, Detective Bell was able to identify Smith as the driver of the vehicle.
(May 6-8, 2019 Tr., Vol. II, at 185); (State’s Ex. 9).
-11-
Case No. 13-19-26
{¶19} Detective Bell then testified that a fourth and final controlled drug
purchase took place on August 30, 2018. (May 6-8, 2019 Tr., Vol. II, at 186).
Detective Bell testified that the same confidential informant arranged the controlled
purchase by messaging the Facebook account registered in Smith’s name. (Id. at
187). As with the earlier controlled drug purchases, Detective Bell testified that he
observed the Facebook messages between Smith’s account and the confidential
informant, and he testified that the content of the messages was consistent with what
the confidential informant had said he talked about with Smith. (Id. at 197-199).
However, unlike the previous transactions, Detective Bell and the confidential
informant knew in advance that Smith would not be conducting the sale personally.
(Id. at 187). Detective Bell testified that when the confidential informant made
contact with Smith to set up the August 30, 2018 controlled buy, Smith told the
confidential informant that Smith’s uncle would be doing the transaction. (Id.).
{¶20} Detective Bell testified that Jackson Park was once again the site of
the controlled purchase. (Id. at 190). He stated that on August 30, 2018, the
confidential informant entered Jackson Park and waited for Smith’s uncle. (Id.).
However, rather than Smith’s uncle, Marques appeared in the park driving his black
Cadillac. (Id. at 191). Detective Bell stated that the confidential informant entered
the Cadillac and that, after exiting the vehicle, the confidential informant turned
over a quantity of cocaine. (Id. at 191-192). Detective Bell testified that the
-12-
Case No. 13-19-26
confidential informant revealed that the cocaine had been purchased from Marques.
(Id. at 197-198). Detective Bell was able to identify Marques as the driver of the
Cadillac by viewing the covert video recording and the still photographs derived
therefrom. (Id. at 201-202); (State’s Exs. 13, 14). Detective Bell testified that the
confidential informant was paid $50 for his role in the August 30, 2018 operation.
(May 6-8, 2019 Tr., Vol. II, at 196). Finally, Detective Bell testified that it is not
uncommon for a person other than the coordinator of a drug transaction to actually
make the sale. (Id. at 202). He observed that, many times, the transactions are
planned by middlemen or go-betweens. (Id. at 203).
{¶21} On cross-examination, Detective Bell testified that, to the best of his
knowledge, the confidential informant received only monetary compensation for his
participation in the controlled drug purchases and that he did not receive special
consideration with respect to pending criminal charges. (Id. at 206-207). Detective
Bell testified that it is not uncommon for confidential informants to participate in
controlled drug operations for purely financial reasons. (Id. at 214). He also stated
that he did not subject the confidential informant to drug testing and that he only
visually assessed whether the confidential informant was under the influence of
drugs. (Id. at 210).
{¶22} Detective Bell further testified that although he took pictures of only
the Facebook messages used to arrange the August 13, 2018 controlled drug
-13-
Case No. 13-19-26
purchase, he personally observed the messages used to arrange the other controlled
buys. (Id. at 211). He stated that the Facebook messages allegedly sent by Smith
did not explicitly reference drugs, and he conceded that he did not know for certain
who wrote the messages sent via Smith’s Facebook account. (Id. at 211-212).
However, he testified that it was possible, but “[n]ot probable,” that someone other
than Smith sent the messages from Smith’s account. (Id. at 216).
{¶23} In addition, Detective Bell reiterated that Smith was not physically
present either during the August 9, 2018 controlled purchase, the controlled
purchase that allegedly took place within the vicinity of a juvenile, or during the
August 30, 2018 controlled purchase. (Id. at 212). Detective Bell admitted that he
did not obtain a precise measurement of the distance between the black Cadillac in
which the confidential informant purchased the drugs and the juveniles playing in
Jackson Park. (Id. at 213). Detective Bell repeated that the 75-foot estimate was
“what [he] was advised,” and he acknowledged that it was possible that the juveniles
“could have been 101 feet” away from the black Cadillac. (Id.).
{¶24} Finally, on redirect examination, Detective Bell clarified why he
believed that it was improbable that someone other than Smith sent the messages
from Smith’s Facebook account. Referencing the Facebook messages that the
confidential informant received from Smith’s Facebook account and from
-14-
Case No. 13-19-26
Marques’s Facebook account in connection with the August 13, 2018 buy, Detective
Bell explained:
These messages were sent to and from [Smith] and Marques on the
same day, about the same operation, and around the same time frame.
It would be improbable for someone to be logged into both of the
accounts and have both the phones connecting both messages as
representing each other during these operations * * *. [Y]ou assume
the person on the other end of that that you’re messaging, especially
both at the same time, they’re both responding that you’re going to
assume that one of them usually is the one that puts their name on the
thing and their profile picture is the one responding.
(Id. at 217). In addition, Detective Bell testified that the confidential informant was
used to conduct at least 10 controlled purchases, including operations not involving
Smith. (Id. at 218-219). He testified that it was evident from the observations of
law enforcement officers present at the August 9, 2018 controlled purchase that
children were within view of the drug transaction. (Id. at 218). Finally, he stated
that through working with the confidential informant, he found that the confidential
informant provided reliable and accurate information and that the confidential
informant was truthful and forthcoming in giving his accounts of the controlled
purchases. (Id. at 219).
-15-
Case No. 13-19-26
{¶25} The State next offered the testimony of the confidential informant.
The confidential informant testified that he initiated contact with law enforcement
officers and that he wanted to work with law enforcement in conducting controlled
purchase operations for “personal reasons.” (Id. at 223). The confidential informant
further testified that he had previously used drugs, that cocaine was his drug of
choice, and that he had previous convictions for theft in the Tiffin-Fostoria
Municipal Court. (Id. at 223-225).
{¶26} The confidential informant then testified about each of the four
controlled drug purchases in which he participated. First, the confidential informant
confirmed that he arranged the July 23, 2018 purchase with Smith using Facebook
Messenger and that, to the best of his knowledge, Smith was the person to whom he
sent the messages. (May 6-8, 2019 Tr., Vol. III, at 254). The confidential informant
stated that he planned to buy crack cocaine from Smith and alprazolam pills from
Smith’s uncle. (May 6-8, 2019 Tr., Vol. II, at 227-228). However, according to the
confidential informant, when he arrived at Marques’s house to conduct the purchase,
he purchased both the cocaine and the alprazolam pills directly from Smith. (Id. at
230, 234); (May 6-8, 2019 Tr., Vol. III, at 254). The confidential informant testified
that the covert video recording of the July 23, 2018 purchase showed that Smith was
the person conducting the sale. (May 6-8, 2019 Tr., Vol. II, at 234); (State’s Ex. 3).
-16-
Case No. 13-19-26
The confidential informant also stated that he received $100 for participating in the
July 23, 2018 purchase. (May 6-8, 2019 Tr., Vol. II, at 238).
{¶27} Next, the confidential informant testified that, like the July 23, 2018
purchase, he arranged the August 9, 2018 purchase via Facebook Messenger by
messaging a person he believed to be Smith. (May 6-8, 2019 Tr., Vol. III, at 255).
He testified that he showed Detective Bell the Facebook messages exchanged
between his account and the account registered in Smith’s name. (Id. at 265). He
also testified that the time frames of the messages he received from Smith’s
Facebook account corresponded to the time frame of the August 9, 2018 controlled
purchase, that he always used Facebook to contact Smith, and that he always
received responses from Smith’s Facebook account when he attempted to
communicate with Smith. (Id. at 266).
{¶28} The confidential informant stated that the August 9, 2018 controlled
purchase took place at Jackson Park and that although he believed that he would be
purchasing drugs from Smith, Marques arrived at Jackson Park alone in a dark
colored Cadillac. (Id. at 256, 261-263). He testified that after he purchased $250
of cocaine from Marques, he told Detective Bell that he purchased the cocaine from
Marques rather than Smith. (Id. at 263-264). The confidential informant stated that
he received $125 for his role in the August 9, 2018 operation. (Id. at 267).
-17-
Case No. 13-19-26
{¶29} The confidential informant also testified that he observed children
playing in Jackson Park during the controlled purchase and that he could see them
clearly. (Id. at 260-261). He estimated that juveniles were approximately 75 feet
away from the Cadillac when he entered the vehicle to conduct the purchase, and he
testified that children were within view of Marques’s vehicle when the controlled
purchase took place inside of the vehicle. (Id. at 266-267).
{¶30} The confidential informant then testified about the August 13, 2018
controlled purchase. The confidential informant testified that he arranged this
transaction by contacting the Facebook account registered in Smith’s name and that
he believed that Smith was the person who responded. (Id. at 270-271). He stated
that he also showed these Facebook messages to Detective Bell and that he believed
the messages were from Smith because “it was his contact info.” (Id. at 279-280).
The confidential informant also acknowledged that he contacted Marques via
Facebook in connection with the August 13, 2018 controlled buy. (Id. at 281-282).
He testified that Smith and Marques appeared as different Facebook contacts on his
phone, that when he was messaging with Marques’s account, he assumed that he
was communicating with Marques, and that when he was messaging with Smith’s
account, he assumed he was communicating with Smith. (Id. at 281-282).
{¶31} As with the August 9, 2018 buy, the confidential informant testified
that the August 13, 2018 buy took place at Jackson Park. (Id. at 271-272). The
-18-
Case No. 13-19-26
confidential informant stated that Smith and Marques arrived to Jackson Park
together in a vehicle and that Smith was driving the vehicle. (Id. at 276-277). Once
the confidential informant got into the vehicle, Smith drove a short distance,
Marques sold him cocaine, and Smith dropped the confidential informant off. (Id.
at 272, 277). According to the confidential informant, although Smith was driving,
it appeared that Smith “knew and was fully aware of what was going on.” (Id. at
278-279). The confidential informant testified that he was paid $125 for his role in
the August 13, 2018 controlled purchase. (Id. at 286).
{¶32} Finally, the confidential informant testified about the August 30, 2018
controlled purchase. The confidential informant testified that the August 30, 2018
buy, like the three other buys, was planned using Facebook Messenger. (Id. at 290).
The confidential informant testified that he contacted the account registered in
Smith’s name to arrange the purchase and that he believed that he was
communicating with Smith. (Id.). He also stated that he showed Detective Bell
these Facebook messages. (Id. at 298).
{¶33} The confidential informant testified that the messages received from
Smith’s Facebook account specified that he would be purchasing cocaine from
Smith’s uncle and that the buy would take place at Jackson Park. (Id. at 291-292).
However, when the confidential informant arrived at Jackson Park to conduct the
August 30, 2018 buy, it was Marques, rather than Smith’s uncle, who appeared to
-19-
Case No. 13-19-26
conduct the sale. (Id. at 296-297). The confidential informant testified that Marques
was driving the same dark colored Cadillac, that no one else was in the vehicle with
Marques, and that Marques was the one who sold him cocaine. (Id. at 296-297).
The confidential informant stated that he was paid $50 for participating in the
August 30, 2018 operation. (Id. at 298-299).
{¶34} On cross-examination, the confidential informant testified that he
formerly used crack cocaine. (Id. at 308). However, he stated that he was not using
drugs at the time of the controlled purchases, but he admitted that he was not
subjected to drug testing. (Id. at 302-303, 306). He stated that he participated in
the controlled purchases solely for financial reasons and that he earned over $1000
for all the operations in which he participated, including those not involving Smith.
(Id. at 303, 307). The confidential informant also denied stealing covert funds. (Id.
at 305).
{¶35} Furthermore, the confidential informant confirmed that he showed
Detective Bell the Facebook messages used to plan the August 9 and August 30,
2018 controlled buys, but he acknowledged that no pictures were taken of those
messages. (Id. at 307). He also testified that he never turned over his cell phone to
Detective Bell. (Id. at 308). The confidential informant testified that Smith was not
present at either the August 9 or the August 30, 2018 controlled buys and that
children were present during the August 9, 2018 buy. (Id. at 309-310). He testified
-20-
Case No. 13-19-26
that it was a “[p]ure guesstimate” that the children were 75 feet away from
Marques’s Cadillac when he entered the vehicle, and he conceded that it was
possible that the children could have been more than 100 feet away. (Id. at 310).
He also testified that a person “would have to be right up on [the Cadillac] to see
into it.” (Id.).
{¶36} On redirect examination, the confidential informant testified that the
August 9, 2018 controlled purchase was “[i]n process” when he entered Marques’s
Cadillac. (Id. at 313). He testified that when he entered the Cadillac, he could see
the children playing in Jackson Park and that it was fair to say that because he could
see the children, the children could have seen him. (Id.).
{¶37} On recross-examination, the confidential informant testified that the
children were “long behind” Marques’s Cadillac when the drugs actually traded
hands and that they would not physically have seen a drug transaction occurring.
(Id. at 314).
{¶38} The State also offered the testimony of Detective Charles Boyer
(“Detective Boyer”) of the Tiffin Police Department, who was also a member of the
Seneca County Drug Task Force. (Id. at 361). Detective Boyer testified that he
conducted surveillance during the August 9, 2018 controlled purchase at Jackson
Park and that he was stationed approximately 100 yards from the position of the
confidential informant and Marques’s Cadillac. (Id. at 367-369). He testified that
-21-
Case No. 13-19-26
as the confidential informant was entering Marques’s Cadillac, “[t]here was several
juveniles in the area * * * probably about 75 feet away.” (Id. at 368). Detective
Boyer stated that he radioed Detective Bell with this information so that Detective
Bell could include this information in his case notes. (Id. at 368-369). Detective
Boyer also testified that he found the confidential informant to be reliable and
trustworthy. (Id. at 375).
{¶39} On cross-examination, Detective Boyer testified that it was not
possible that the children were more than 100 feet away from Marques’s Cadillac
when the confidential informant entered the vehicle. (Id. at 376). He stated that he
“wouldn’t have radioed to Detective Bell asking to place in [Detective Bell’s] notes
that the location of the juveniles were well within a hundred feet of the informant
as [the confidential informant] was getting into the vehicle.” (Id.). However,
Detective Boyer testified that the 75-foot figure was “[j]ust an estimate.” (Id.).
{¶40} Having reviewed the relevant portions of the record, we turn now to
Smith’s arguments that his convictions are against the manifest weight of the
evidence. First, we consider Smith’s argument that his convictions are against the
manifest weight of the evidence because the evidence does not support a finding
that he was the person who used the Facebook account registered in his name to
send the messages that were used to arrange the drug sales. We note, as Smith does,
that this argument is “especially critical with respect to Counts Three, Four, and
-22-
Case No. 13-19-26
Five” because Smith “was charged with complicity to trafficking in cocaine, and
not the trafficking offense itself.” (Appellant’s Brief at 9). As Smith implies, this
argument has little, if any, bearing on Smith’s convictions on Counts One and
Two—which relate to the July 23, 2018 controlled purchase—because, even
assuming that some other person used Smith’s Facebook account to contact the
confidential informant and arrange the July 23, 2018 controlled drug purchase,
Detective Bell’s and the confidential informant’s uncontradicted testimonies and the
video evidence overwhelmingly demonstrate that Smith personally sold the drugs
to the confidential informant during the July 23, 2018 operation. Therefore, we
consider this argument only in determining whether Smith’s complicity-to-
trafficking-in-cocaine convictions are against the manifest weight of the evidence.
{¶41} After reviewing the record, we cannot conclude that Smith’s
complicity-to-trafficking-in-cocaine convictions are against the manifest weight of
the evidence. Contrary to Smith’s argument, the record contains ample evidence
from which the jury could have reasonably inferred that Smith, and not some other
person, was the person who sent the Facebook messages organizing the drug sales.
Both the confidential informant and Detective Bell testified that the Facebook
messages, which contained language that, in Detective Bell’s experience, was
consistent with language often used to arrange drug deals, originated from a
Facebook account bearing Smith’s name. The confidential informant testified that
-23-
Case No. 13-19-26
he always attempted to contact Smith by messaging the Facebook account registered
in Smith’s name. Furthermore, there is no evidence in the record suggesting that
anyone other than Smith had access to Smith’s Facebook account. The confidential
informant stated that Smith and Marques did not share a Facebook account; when
the confidential informant wanted to contact Marques, he would message Marques’s
Facebook account and when he wanted to contact Smith, he would message Smith’s
Facebook account. Thus, the greater weight of the evidence supports that Smith
was the one who arranged the August 9, August 13, and August 30, 2018
transactions through his Facebook account, even though Marques was the only
person present at the August 9 and August 30, 2018 controlled purchases.
{¶42} Moreover, with respect to Count Four, which relates to the August 13,
2018 controlled purchase, Smith was physically present when Marques sold the
cocaine to the confidential informant. Smith drove Marques to Jackson Park to meet
with the confidential informant, he was in the car with Marques and the confidential
informant during the entire transaction, and, according to the confidential informant,
Smith was fully aware that a drug sale was taking place. Coupled with the Facebook
messages, Smith’s presence at the August 13, 2018 controlled purchase is strongly
corroborative of his complicity to Marques’s trafficking in cocaine.
{¶43} Next, we consider Smith’s argument that the evidence does not
support a finding that Count Three, which relates to the August 9, 2018 controlled
-24-
Case No. 13-19-26
purchase, was committed within the vicinity of a juvenile. Smith’s argument is
without merit. Detective Bell, Detective Boyer, and the confidential informant all
testified that juveniles were approximately 75 feet away from Marques’s black
Cadillac when the confidential informant entered the Cadillac and commenced the
controlled drug purchase. Although Detective Bell and the confidential informant
testified that it was possible that the juveniles were more than 100 feet away at that
time, Detective Boyer testified that he was certain that the juveniles were less than
100 feet away when the confidential informant entered the Cadillac. As the trier of
fact, the jury was entitled to give decisive weight to Detective Boyer’s testimony.
Moreover, the jury’s determination that the August 9, 2018 drug transaction
occurred in the vicinity of a juvenile is not against the weight of the evidence just
because Detective Bell, Detective Boyer, and the confidential informant offered
only a visual estimate of the distance between the juveniles and the Cadillac instead
of a precise measurement. See State v. Howard, 12th Dist. Warren No. CA2012-
04-034, 2013-Ohio-1489, ¶ 69-70; State v. Speers, 11th Dist. Ashtabula No. 2003-
A-0112, 2005-Ohio-4654, ¶ 34-35. Therefore, we conclude that the jury’s finding
that the August 9, 2018 controlled drug purchase was committed in the vicinity of a
juvenile is not against the weight of the evidence.
{¶44} Finally, we consider Smith’s argument that the jury should have
discounted the confidential informant’s testimony because the confidential
-25-
Case No. 13-19-26
informant had a financial incentive to offer testimony favorable to the prosecution
and because of the confidential informant’s prior criminal history. Contrary to
Smith’s suggestion, the jury is not precluded from relying on a witness’s testimony
simply because the witness has a criminal history or a motivation to provide
testimony favorable to the prosecution. See State v. Nitsche, 8th Dist. Cuyahoga
No. 103174, 2016-Ohio-3170, ¶ 44. Instead, a witness’s criminal history, prior drug
use, or potential bias are factors that the jury may consider in determining whether
to credit the witness’s testimony and in assigning weight to the witness’s testimony.
See State v. Price, 3d Dist. Logan No. 8-13-03, 2013-Ohio-3984, ¶ 23-24. In this
case, the jury was aware of the extent of the confidential informant’s cooperation
with law enforcement, his stated reasons for participating in the controlled drug
purchases, and the amount of money he received for participating in these, and
other, operations. Additionally, the jury heard testimony concerning the
confidential informant’s prior criminal history and his previous drug use. Smith’s
trial counsel was afforded an opportunity to cross-examine the confidential
informant concerning these matters. Furthermore, the jury was able to consider
Detective Bell’s and Detective Boyer’s testimonies that they found the confidential
informant to be reliable and trustworthy. Ultimately, “[t]he decision whether, and
to what extent, to believe the testimony of a particular witness is ‘within the peculiar
competence of the factfinder, who has seen and heard the witness.’” Nitsche at ¶
-26-
Case No. 13-19-26
45, quoting State v. Johnson, 8th Dist. Cuyahoga No. 99822, 2014-Ohio-494, ¶ 54.
To the extent that the jury relied on the confidential informant’s testimony to convict
Smith, our review of the record has revealed nothing that would justify overturning
the jury’s decision to do so.
{¶45} Therefore, having weighed the evidence and all reasonable inferences,
and considering the credibility of the witnesses, we cannot conclude that the jury
clearly lost its way and created such a manifest miscarriage of justice that Smith’s
trafficking-in-cocaine, trafficking-in-drugs, and complicity-to-trafficking-in-
cocaine convictions must be reversed.
{¶46} Smith’s first assignment of error is overruled.
Assignment of Error No. II
Because the testimony from Detective Brandon Bell of the Seneca
County Drug Task Force referencing “previous dealings” with
Appellant and Appellant’s brother prejudiced Appellant and
deprived Appellant of a fair trial, the trial court abused its
discretion in denying Appellant’s motion for a mistrial.
{¶47} In his second assignment of error, Smith argues that the trial court
abused its discretion by denying his motion for a mistrial. Specifically, Smith
argues that the trial court should have declared a mistrial when Detective Bell
testified that he was able to identify Smith because of “previous dealings” with
Smith and Marques.
-27-
Case No. 13-19-26
{¶48} “‘A mistrial should not be ordered in a criminal case merely because
some error or irregularity has intervened, unless the substantial rights of the accused
or the prosecution are adversely affected * * *.’” State v. A.M., 8th Dist. Cuyahoga
No. 106400, 2018-Ohio-4209, ¶ 23, quoting State v. Reynolds, 49 Ohio App. 3d 27
(2d Dist.1988), paragraph two of the syllabus. “‘Mistrials need be declared only
when the ends of justice so require and a fair trial is no longer possible.’” State v.
Hansen, 3d Dist. Seneca No. 13-12-42, 2013-Ohio-1735, ¶ 58, quoting State v.
Franklin, 62 Ohio St. 3d 118, 127 (1991). “In determining whether a defendant was
deprived of a fair trial, we must determine whether, absent the error or irregularity,
‘the jury would have found the appellant guilty beyond a reasonable doubt.’” State
v. Junod, 3d Dist. Mercer No. 10-18-08, 2019-Ohio-743, ¶ 44, quoting State v.
Morris, 10th Dist. Franklin Nos. 18AP-208 and 18AP-209, 2018-Ohio-5252, ¶ 44,
citing State v. Maurer, 15 Ohio St. 3d 239, 267 (1984). “To determine whether the
error resulted in prejudice, we must consider (1) the nature of the error, (2) whether
an objection was made, (3) whether the trial court provided corrective instructions,
and (4) the strength of the evidence against the defendant.” Id., citing Morris at ¶
44.
{¶49} “Whether to grant a mistrial is within the sound discretion of the trial
court.” Hansen at ¶ 58, citing State v. Brown, 100 Ohio St. 3d 51, 2003-Ohio-5059,
¶ 42, citing State v. Glover, 35 Ohio St. 3d 18, 19 (1988). Thus, we review a trial
-28-
Case No. 13-19-26
court’s decision whether to grant a motion for a mistrial for an abuse of discretion.
Junod at ¶ 43, citing State v. Sage, 31 Ohio St. 3d 173, 182 (1987). An abuse of
discretion is more than a mere error in judgment; it suggests that a decision is
unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio St. 2d 151, 157-
158 (1980).
{¶50} Here, Smith argues that the trial court abused its discretion by denying
his motion for a mistrial after Detective Bell testified that he was able to identify
Smith because he had “previous dealings” with Smith and Marques. Detective
Bell’s reference to his “previous dealings” with Smith occurred during the following
exchange:
[The State]: [Y]ou testified that [Smith] and Marques * * *
were, in fact, twins. How is it that you were able
to differentiate between the two?
[Detective Bell]: When these operations took place in July and
August, Marques * * * had a longer hairdo. * *
* I can tell the difference between their eyes.
And at that time, * * * Smith had a very short,
tight hair cut * * *. Marques * * * had a very
bushy-type hairdo on top. It was quite long and
curly, which was easy to compare the
-29-
Case No. 13-19-26
photographs in those videos to determine which
was which, even to someone who did not have
previous knowledge of them. Based on the fact
that I’ve worked in the City of Fostoria for ten
and a half years, and about eight years prior to
these operations, eight or nine years, I had had
previous dealings with these gentlemen * * *.
(Emphasis added.) (May 6-8, 2019 Tr., Vol. II, at 204). Smith’s trial counsel
immediately objected to Detective Bell’s reference to his “previous dealings” with
Smith and Marques. (Id.). The trial court sustained Smith’s trial counsel’s objection
and instructed the jury to “disregard the term previous dealings.” (Id. at 205).
{¶51} Later, outside the presence of the jury, Smith’s trial counsel moved for
a mistrial. (Id. at 244). At this time, the trial court offered to give the jury a second
curative instruction concerning Detective Bell’s “previous dealings” comment, but
the trial court stated that it was “afraid to bring it up again” and that “sometimes it’s
best not to bring up the items again and again.” (Id. at 244-246). Ultimately, neither
the State nor Smith’s trial counsel requested that the trial court issue a second
curative instruction. (Id. at 245-247). The trial court eventually denied Smith’s
motion for a mistrial. (Id. at 247).
-30-
Case No. 13-19-26
{¶52} We conclude that the trial court did not abuse its discretion by denying
Smith’s motion for a mistrial. Smith argues that Detective Bell’s “previous
dealings” comment, when considered with the rest of his testimony, likely led the
jury to conclude that the “previous dealings” he had with Smith and Marques were
“drug-related, either as defendants or as confidential informants, and thus [Smith
and Marques were] familiar with drug use and drug users themselves.” (Appellant’s
Brief at 16-17). We question whether Detective Bell’s ambiguous reference to
“previous dealings” with Smith is the equivalent of a statement that Smith had
connections to drug trafficking or that Smith had prior drug-related arrests or
convictions. See State v. Ford, 8th Dist. Cuyahoga No. 106394, 2018-Ohio-5169,
¶ 47. Yet, even if we were to accept Smith’s proposal that Detective Bell’s reference
suggested to the jury that Smith “had either used drugs, or had prior involvement
with [Detective Bell] as a suspect or criminal defendant,” Detective Bell’s reference
to his “previous dealings” with Smith did not warrant the granting of a mistrial
because the reference was brief and immediately followed by an instruction to the
jury to disregard the reference. Where an improper reference to a defendant’s
criminal history is “fleeting and * * * promptly followed by a curative instruction,”
the trial court does not abuse its discretion by denying the defendant’s motion for a
mistrial. State v. Trimble, 122 Ohio St. 3d 297, 2009-Ohio-2961, ¶ 174-175, quoting
State v. Garner, 74 Ohio St. 3d 49, 59 (1995); A.M., 2018-Ohio-4209, at ¶ 25. Thus,
-31-
Case No. 13-19-26
having sustained Smith’s trial counsel’s objection to Detective Bell’s fleeting
reference and having instructed the jury to disregard the comment, the trial court’s
decision to deny Smith’s motion for a mistrial was not unreasonable, arbitrary, or
unconscionable.
{¶53} Nevertheless, Smith argues that this case is distinguishable from other
cases in which fleeting references to a defendant’s criminal history did not require
the granting of a mistrial because, in those cases, the references were to a
defendant’s relatively limited criminal history. He notes that in Trimble, the
reference was to a “‘prior conviction,’ rather than the more nebulous phrase
‘previous dealings,’ which a jury could interpret to mean a more extensive criminal
history than a single criminal conviction, or history of drug use.” (Appellant’s Brief
at 15). See Trimble at ¶ 175. However, contrary to Smith’s argument, where the
reference to a defendant’s criminal history was fleeting and quickly followed by a
curative instruction, the extensiveness of the criminal history referred to has not
been determinative of whether the trial court should have declared a mistrial. For
example, in Garner, a witness improperly referred to “one of [the defendant’s]
arrests.” (Emphasis deleted.) Garner at 59. Yet, despite implying a potentially
lengthy history of criminal behavior, the Supreme Court of Ohio concluded that the
reference did not require the trial court to order a mistrial because the reference was
brief and promptly followed by a curative instruction. Id. In another case, the trial
-32-
Case No. 13-19-26
court’s refusal to declare a mistrial was upheld despite testimony that the defendant
was “a repeat offender.” State v. Harris, 10th Dist. Franklin No. 04AP-612, 2005-
Ohio-4676, ¶ 26, 29. Therefore, it is immaterial that Detective Bell’s reference
could be interpreted as implying that Smith has an extensive criminal history.
{¶54} Smith also appears to argue that the single curative instruction given
by the trial court was insufficient to neutralize the prejudice caused by Detective
Bell’s reference. (See Appellant’s Brief at 15-16). Smith takes issue particularly
with the trial court’s reluctance to give a second curative instruction. (Id. at 16).
His argument is without merit. The Supreme Court of Ohio has previously
concluded that an instruction nearly identical to the one issued by the trial court in
this case was adequate to eliminate the possibility of unfair prejudice. See Trimble
at ¶ 166, 169-170, 175 (after sustaining an objection to a witness’s reference to the
defendant’s “prior conviction,” the trial court stated only that the “[j]ury is
instructed to disregard”). Furthermore, although a second curative instruction was
not given to the jury, we presume that the single curative instruction given by the
trial court was effective. See State v. Dodson, 3d Dist. Seneca No. 13-10-47, 2012-
Ohio-5576, ¶ 13 (“A jury is presumed to follow the curative instruction given by
the trial court to disregard any evidence to which an objection is sustained.”), citing
State v. Noling, 98 Ohio St. 3d 44, 2002-Ohio-7044, ¶ 39. Moreover, by not issuing
a second curative instruction, the trial court may have actually minimized the risk
-33-
Case No. 13-19-26
that Smith would be prejudiced by Detective Bell’s “previous dealings” comment.
See State v. Hester, 10th Dist. Franklin No. 02AP-401, 2002-Ohio-6966, ¶ 15
(noting, in the context of an ineffective assistance of counsel argument, that
“[c]ounsel may have declined to request a limiting instruction regarding appellant’s
prior convictions out of concern that, if such an instruction were given, the prior
convictions would be once again called to the jury’s attention”).
{¶55} Finally, there is little likelihood that Smith was prejudiced by
Detective Bell’s “previous dealings” reference because, as discussed in our analysis
of Smith’s first assignment of error, there was ample evidence establishing Smith’s
guilt in this case. See Trimble, 122 Ohio St. 3d 297, 2009-Ohio-2961, at ¶ 175, citing
State v. Treesh, 90 Ohio St. 3d 460, 483 (2001). Accordingly, we conclude that the
trial court did not abuse its discretion by denying Smith’s motion for a mistrial.
{¶56} Smith’s second assignment of error is overruled.
Assignment of Error No. III
Because the record, as shown by clear and convincing evidence,
does not support the trial court’s findings under R.C.
2929.14(C)(4), pursuant to R.C. 2953.08(G)(2), the trial court’s
sentence of Appellant in case number 2018 CR 0282 was not
supported by the record.
{¶57} In his third assignment of error, Smith argues that the trial court erred
by deciding to impose consecutive sentences for Counts One, Two, and Three.
Specifically, Smith argues that the consecutive sentences are “disproportionate to
-34-
Case No. 13-19-26
the seriousness of [his] conduct and to the danger [he] pose[s] to the public.”
(Appellant’s Brief at 19). Smith notes that he “showed genuine remorse for the
offense” and that “none of the charges were higher than a fourth-degree felony.”
(Id.). Smith also observes that the drug transactions “took place inside a vehicle,
out of the immediate view of children or those nearby” and that the drug purchases
“were as part of a police operation, and no controlled substances reached the general
public.” (Id.).
{¶58} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence
“only if it determines by clear and convincing evidence that the record does not
support the trial court’s findings under relevant statutes or that the sentence is
otherwise contrary to law.” State v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002,
¶ 1. Clear and convincing evidence is that “‘which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established.’” Id.
at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the
syllabus.
{¶59} In this case, Smith does not challenge the length of any of the
sentences imposed for Counts One through Five. Instead, Smith challenges only
the trial court’s determination that the sentences for Counts One, Two, and Three
should be served consecutively. Accordingly, we limit our review to a consideration
-35-
Case No. 13-19-26
of whether the trial court made the necessary findings prior to imposing consecutive
sentences and whether those findings are supported by the record.
{¶60} “Except as provided in * * * [R.C. 2929.14(C)], * * * a prison term,
jail term, or sentence of imprisonment shall be served concurrently with any other
prison term, jail term, or sentence of imprisonment imposed by a court of this state,
another state, or the United States.” R.C. 2929.41(A). R.C. 2929.14(C) provides,
in relevant part:
(4) If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the offender
to serve the prison terms consecutively if the court finds that the
consecutive service is necessary to protect the public from future
crime or to punish the offender and that consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct and to
the danger the offender poses to the public, and if the court also finds
any of the following:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a
sanction imposed pursuant to [R.C. 2929.16, 2929.17, or 2929.18], or
was under post-release control for a prior offense.
-36-
Case No. 13-19-26
(b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or more
of the multiple offenses so committed was so great or unusual that no
single prison term for any of the offenses committed as part of any of
the courses of conduct adequately reflects the seriousness of the
offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
R.C. 2929.14(C)(4). “R.C. 2929.14(C)(4) requires a trial court to make specific
findings on the record before imposing consecutive sentences.” State v. Nienberg,
3d Dist. Putnam Nos. 12-16-15 and 12-16-16, 2017-Ohio-2920, ¶ 17, citing State
v. Hites, 3d Dist. Hardin No. 6-11-07, 2012-Ohio-1892, ¶ 11 and State v.
Peddicord, 3d Dist. Henry No. 7-12-24, 2013-Ohio-3398, ¶ 33. “Specifically, the
trial court must find: (1) consecutive sentences are necessary to either protect the
public or punish the offender; (2) the sentences would not be disproportionate to
the offense committed; and (3) one of the factors in R.C. 2929.14(C)(4)(a), (b), or
(c) applies.” Id., citing Hites at ¶ 11 and Peddicord at ¶ 33.
{¶61} When imposing consecutive sentences, the trial court must make the
findings required by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate
-37-
Case No. 13-19-26
those findings into its sentencing entry. State v. Bonnell, 140 Ohio St. 3d 209, 2014-
Ohio-3177, ¶ 29, 37. In complying with this requirement, the trial court “has no
obligation to state reasons to support its findings.” Id. at ¶ 37. “[P]rovided that the
necessary findings can be found in the record and are incorporated into the
sentencing entry,” a trial court need not recite a “talismanic incantation” of the
language of R.C. 2929.14(C)(4) to properly impose consecutive sentences. Id.
{¶62} At the sentencing hearing in this case, the trial court made the
following findings before imposing consecutive sentences:
The Court further finds that consecutive sentences are necessary to
protect the public from future crime or to punish [Smith], and that
consecutive sentences are not disproportionate to the seriousness of
[Smith’s] conduct, [and] to the danger [Smith] poses to the public.
The Court further finds that at least two of the multiple offenses were
committed as part of one or more courses of conduct, and the harm
caused by two or more of the multiple offenses so committed was so
great or unusual that no single prison term for any of the offenses
committed as part of any of the courses of conduct adequately reflects
the seriousness of [Smith’s] conduct. The Court further finds
[Smith’s] history of criminal conduct demonstrates that consecutive
-38-
Case No. 13-19-26
sentences are necessary to protect the public from future crime by
[Smith].
(June 24, 2019 Tr. at 22-23). The trial court incorporated its consecutive-sentencing
findings nearly verbatim in its judgment entry of sentence. (Doc. No. 33). Thus, it
is clear that the trial court made the appropriate R.C. 2929.14(C)(4) findings prior
to imposing consecutive sentences and that the trial court incorporated those
findings into its sentencing entry.
{¶63} Moreover, it is equally clear that the trial court’s consecutive-
sentencing findings are supported by the record. While Smith argues that he
expressed genuine remorse for his crimes and that this expression of remorse
indicates that he is not a danger to the public, this does not account for the rest of
the facts of Smith’s case. Even if the trial court assigned significant weight to
Smith’s expression of remorse, Smith’s persistent pattern of criminal conduct and
the particular nature of the offenses in this case support the trial court’s decision to
impose consecutive sentences. Although the most severe offense of which Smith
was convicted in this case was only a fourth-degree felony, Smith has a record of
prior convictions, including felony convictions. The record reflects that at the time
of the commission of the offenses in this case, Smith was on community control
after having been convicted of obstruction, failure to comply, a third-degree felony,
and trafficking in cocaine. (See Dec. 14, 2018 Tr. at 3); (Dec. 19, 2018 Tr. at 5);
-39-
Case No. 13-19-26
(June 24, 2019 Tr. at 8-9). Thus, the record establishes that less-severe sanctions
have not been able to fully protect the public from Smith’s crimes. Moreover, as
discussed above, the evidence demonstrated that one of the drug sales coordinated
by Smith occurred at a public park within the vicinity of juveniles. See State v.
Williams, 3d Dist. Seneca Nos. 13-19-23, 13-19-24, and 13-19-25, 2019-Ohio-5296,
¶ 20 (consecutive sentences supported in part by the fact that one of the offenses
involved a drug sale that occurred in the vicinity of a juvenile). While Smith
contends that the juveniles were unable to actually observe the drug transaction and
that no drugs entered the community, we are not persuaded. While no drugs entered
the community as a result of the four controlled purchase operations and juveniles
may not have actually seen the August 9, 2018 transaction, by personally selling
cocaine and alprazolam pills to the confidential informant and by coordinating a
drug transaction that took place in a public park, Smith demonstrated a willingness
to introduce harmful, addictive substances into his community and expose members
of the public, including children, to the dangers inherent in drug trafficking. This is
more than sufficient to support the trial court’s finding that consecutive sentences
are proportionate to the danger Smith poses to the public.
{¶64} In sum, the trial court made the findings required by R.C.
2929.14(C)(4) before imposing consecutive sentences and incorporated those
findings into its sentencing entry. In addition, the trial court’s R.C. 2929.14(C)(4)
-40-
Case No. 13-19-26
findings are supported by the record. Therefore, we conclude that there is not clear
and convincing evidence that Smith’s consecutive sentences are unsupported by the
record or otherwise contrary to law. See Nienberg, 2017-Ohio-2920, at ¶ 23.
{¶65} Smith’s third assignment of error is overruled.
{¶66} 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 and ZIMMERMAN, J.J., concur.
/jlr
-41-