State v. Henry

[Cite as State v. Henry, 2017-Ohio-5730.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Earle E. Wise, Jr., J.
-vs-
Case No. 2016 AP 05 0030
EARL HENRY, JR.
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 2015 CR 04 0104
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 3, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MICHAEL J. ERNEST BRANDON J. HENDERSON
ASSISTANT PROSECUTOR JUSTIN M. WEATHERLY
125 East High Avenue HENDERSON, MOKHTARI
New Philadelphia, Ohio 44663 & WEATHERLY
3238 Lorain Avenue
Cleveland, Ohio 44113
Tuscarawas County, Case No. 2016 AP 05 0030 2
Wise, John, J.
{¶1} Appellant Earl L. Henry appeals his conviction, in the Court of Common
Pleas, Tuscarawas County, on three counts of trafficking in cocaine, resulting from a
series of controlled drug purchases. Appellee is the State of Ohio. The relevant facts
leading to this appeal are as follows.
First Controlled Buy – 9/11/14
{¶2} On September 11, 2014, James Hart, a confidential informant working with
the Tuscarawas County Sheriff’s Office and the LEAD Drug Task Force, met with an
unwitting accomplice, James Dunaway, at a grocery store parking lot in Uhrichsville, Ohio.
Tr. at 158. Hart, equipped with audio and video recording equipment, got into Dunaway's
vehicle and provided him with the $125.00 in marked cash for the purpose of having
Dunaway purchase some cocaine for him. Tr. at 159. Dunaway and Hart then travelled in
Dunaway's vehicle to Appellant Henry's residence in Uhrichsville. Tr. at 159. Dunaway
exited the vehicle with the $125.00 cash, and while Hart waited, Dunaway went into
appellant’s house for a time, and returned to the car. According to Hart, he and Dunaway
then left the immediate area and “got down the road a little bit,” at which time Dunaway
handed him a quantity of cocaine. Tr. at 160. Dunaway then dropped Hart off, and Hart
went to a local park to wait on Detective Phil Valdez of the Tuscarawas County Sheriff’s
Office, who was coordinating the controlled buy.
Second Controlled Buy – 9/15/14
{¶3} On September 15, 2014, James Hart, the CI, again met James Dunaway,
this time at a discount store parking lot in Uhrichsville. Tr. at 199. Hart, equipped with
recording devices, again got into the car and gave Dunaway $125.00 in marked cash to
Tuscarawas County, Case No. 2016 AP 05 0030 3
be used for purchasing cocaine. Tr. at 164. According to Hart, Dunaway drove to
appellant’s residence, went inside for a while, and came back to the car where Hart was
waiting. Hart then obtained a quantity of cocaine from Dunaway. Tr. at 166. Hart thereafter
was dropped off, and he then met with Det. Valdez at a nearby park.
Third Controlled Buy – 10/14/14
{¶4} On October 14, 2014, Det. Valdez, working undercover, picked up Hart and
Dunaway in a different vehicle and travelled to appellant’s residence, as Dunaway’s car
was broken down at the time. Tr. at 168, 207-208. Dunaway received cash from Valdez,
again went in appellant’s house, and returned with cocaine, which he had stashed under
his hat. Dunaway eventually handed the cocaine to Det. Valdez. Tr. at 246. An
audio/video recording of the events inside the car was once again obtained.
Indictment and Trial
{¶5} On April 7, 2015, appellant was indicted by the Tuscarawas County Grand
Jury on four counts of trafficking in cocaine, R.C. 2925.03(A)(1) and R.C.
2925.03(C)(4)(a), all felonies of the fifth degree.
{¶6} The matter proceeded to a jury trial on April 5 and 6, 2016. Both Hart and
Det. Valdez were called as witnesses by the State. Dunaway testified at the trial after
being designated a court's witness. Appellant unsuccessfully moved for acquittal at the
close of the State’s case. No defense witnesses were called.
{¶7} Following deliberations, the jury found appellant guilty on the first, second,
and third counts of the indictment.1
1 At the commencement of the trial, the State of Ohio had dismissed Count Four of the
indictment.
Tuscarawas County, Case No. 2016 AP 05 0030 4
{¶8} On May 16, 2016, appellant was sentenced inter alia to three years of
community control, ordered to serve thirty days of local incarceration, and complete a
treatment program at the Stark Regional Community Correction Center, with thirty months
of prison time reserved.
{¶9} On May 23, 2016, appellant filed a notice of appeal. He herein raises the
following two Assignments of Error:
{¶10} “I. THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW TO
SUPPORT A FINDING BEYOND A RESONABLE [SIC] DOUBT THAT THE APPELLANT
WAS TRAFFICKING IN COCAINE AND THEREFORE THE TRIAL COURT ERRED IN
DENYING DEFENDANT-APPELLANT'S MOTION FOR AQUITTAL [SIC].
{¶11} “II. APPELLANT'S CONVICTIONS FOR TRAFFICKING COCAINE WERE
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
I.
{¶12} In his First Assignment of Error, appellant argues his three-count drug
trafficking conviction was not supported by sufficient evidence. We disagree.
{¶13} In reviewing a claim of insufficient evidence, “[t]he 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.” State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492,
paragraph two of the syllabus.
{¶14} Appellant herein was convicted of three counts of trafficking in drugs. R.C.
2925.03(A)(1) sets forth the essential elements of the offense of trafficking in drugs: “No
person shall knowingly sell or offer to sell a controlled substance or a controlled substance
Tuscarawas County, Case No. 2016 AP 05 0030 5
analog.” See State v. Moore, 5th Dist. Stark No. 2008-CA-00228, 2009-Ohio-4958, ¶ 12.
Cocaine is considered a controlled substance under R.C. 3719.41, Schedule II (A)(4).
See State v. Williams, 9th Dist. Summit No. 25286, 2011-Ohio-4488, ¶ 7.
{¶15} In the case sub judice, appellant does not dispute that the drugs involved in
the controlled buys were cocaine. Thus, appellant’s present focus is solely on whether
the State sufficiently proved that the unwitting buyer, James Dunaway, purchased the
cocaine from him. See Appellant’s Brief at 9.
{¶16} The record before us reveals CI Hart’s testimony that he had contacted
Detective Valdez and originally offered to participate in a controlled buy of cocaine from
James Dunaway. Tr. at 176-177. Hart recalled that at the time he approached the
detective about assisting as a CI, Hart was unfamiliar with Appellant Henry. Id. However,
Detective Valdez explained to Hart that the target of any controlled buys would actually
be the Appellant Henry, not Dunaway. Tr. at 178.
{¶17} According to Hart, the first witness called at trial, only Dunaway entered
appellant’s residence during the controlled buys. Tr. at 182, 186-188. Hart conceded that
he never actually observed Dunaway give appellant money in exchange for drugs. Tr. at
189. Hart also noted that he had no idea where Dunaway got the cocaine that he would
later give him in the car. Tr. at 186, 189. Hart testified he did not know who was in
appellant’s residence during the controlled buys in question. Id. Hart recalled that
Dunaway was never searched by police officers before any of the buys, and Hart did not
know whether or not Dunaway already had cocaine on his person before going inside
appellant’s house. Tr. at 183-184, 186, 190.
Tuscarawas County, Case No. 2016 AP 05 0030 6
{¶18} Dunaway was the second witness at trial, although due to changes in his
anticipated testimony as revealed to the prosecutor on the morning of day two of the trial,
he was called as a court’s witness under Evid.R. 614. See Tr. at 194. Although Dunaway
had previously implicated appellant as his supplier during an interview with Det. Valdez,
Dunaway testified at trial that he did not obtain the cocaine from appellant during the three
incidents at issue; instead, he claimed to have had it on his person the entire time. He
testified that when he went into appellant's house, they merely talked briefly or discussed
fishing trips. Tr. at 206. Dunaway explained that he took Hart to appellant’s residence to
throw off Hart as to the actual source of the cocaine, and on the third occasion allowed
Det. Valdez to drive him there because he needed a ride due to his car’s disrepair. See
Tr. at 209, 233-234.
{¶19} Detective Valdez, the final trial witness, testified that before each controlled
buy, he outfitted Hart with audio/video surveillance equipment which he would monitor in
real time during the buy. Tr. at 239-241. He also recalled that he gave Hart marked
currency with which to purchase the cocaine and patted him before and after each
controlled buy. Tr. at 241, 244, 247. He noted, however, that he never subjected Dunaway
to the same pat-downs. Tr. at 255. Also, because Dunaway was not wired, Valdez never
had an opportunity to see or hear what was taking place in appellant’s house during the
buys. Tr. at 256. Detective Valdez also testified concerning the follow-up search of
appellant’s residence on or about November 5, 2014. Tr. at 248.2 Det. Valdez recounted
that said search revealed no cocaine nor the marked cash used in the controlled buys.
2 The final incident in the series of buys, set forth in Count Four of the indictment, which
was ultimately dismissed, involved acts alleged to have occurred on October 28, 2014.
Tuscarawas County, Case No. 2016 AP 05 0030 7
Tr. at 249. Furthermore, Dunaway's home was never searched by law enforcement
officers. Tr. at 259.
{¶20} In addition, as noted in our recitation of facts, the jury saw audio/video
recordings made by the CI, Hart. In the first video, Dunaway leaves the vehicle, goes to
appellant's house and returns shortly thereafter to the vehicle. Dunaway can be heard
telling Hart not to “pull out” any of the product until later. See State's Exhibit A. In the
second video, Dunaway again leaves the vehicle, goes to appellant's house, returns to
the vehicle and provides cocaine to Hart. See State's Exhibit B. In the third video,
Dunaway again leaves the vehicle, goes to appellant's house, returns to the vehicle and
subsequently provides cocaine to Det. Valdez. See State's Exhibit C.
{¶21} Thus, with some slight variation, the jury in the case sub judice, was
presented with evidence of three arranged drug buys in which the CI or the undercover
detective provided an unwitting accomplice, Dunaway, with $125.00 in advance each time
to go into appellant’s residence, followed by the return of the accomplice with illegal drugs.
While the physical transactions took place outside of the range of the audio/visual
recordings, the accomplice can be heard telling the CI after at least one of the buys not
to examine the substance in the vicinity of appellant’s house and at one point warns him
that appellant has a gun. In addition, although Dunaway changed his story on the stand,
he implicated appellant as his supplier when first interviewed by detectives.
{¶22} We note Ohio law recognizes that circumstantial evidence is sufficient to
prove the essential elements in a criminal case. State v. Willey, 5th Dist. Guernsey No.
98 CA 6, 1999 WL 3962, citing State v. Hopfer (1996), 112 Ohio App.3d 521, 558, 679
N.E.2d 321. Furthermore, “[b]oth circumstantial and direct evidence have the same
Tuscarawas County, Case No. 2016 AP 05 0030 8
probative value, and in some instances, certain facts can only be established by
circumstantial evidence.” State v. Crutchfield, 12th Dist. Warren No. CA2005-11-121,
2006-Ohio-6549, ¶ 20, citing State v. Mobus, 12th Dist. Butler No. CA2005-01-004, 2005-
Ohio-6164, ¶ 51. While we acknowledge the challenges presented by the utilization of an
unwitting intermediary to effectuate controlled drug buys, in the present case, upon review
of the evidence before us in a light most favorable to the prosecution, we hold reasonable
triers of fact could have found, beyond a reasonable doubt, that appellant committed the
three offenses of cocaine trafficking.
{¶23} Appellant's First Assignment of Error is therefore overruled.
II.
{¶24} In his Second Assignment of Error, appellant maintains his three-count
conviction was against the manifest weight of the evidence. We disagree.
{¶25} Our standard of review on a manifest weight challenge to a criminal
conviction is stated as follows: “The court, 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. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717.
See, also, State v. Thompkins (1997), 78 Ohio St.3d 380, 678 N.E.2d 541. The granting
of a new trial “should be exercised only in the exceptional case in which the evidence
weighs heavily against the conviction.” Martin at 175, 485 N.E.2d 717.
{¶26} Appellant again asserts his claims of weaknesses in the State’s case
against him. In sum, he urges that because Dunaway, as an unwitting participant in the
Tuscarawas County, Case No. 2016 AP 05 0030 9
controlled buy operations, was not wired for recording or searched before and after entry
into appellant’s house, the jurors were not provided with corroborating evidence that
appellant was the seller. Appellant reiterates that no indicators of drug trafficking or the
marked bills were found in the subsequent search of appellant’s residence. Appellant also
again emphasizes that Dunaway’s person and home were never searched, and he
maintains that Dunaway’s implication of appellant to Det. Valdez was unreliable, as he
feared the charges he would be facing himself.
{¶27} However, we surmise that the jurors, who were in the best position to gauge
Dunaway’s credibility, rejected Dunaway’s strained portrayal of the drug purchases in
question as a form of a ruse he repeated three times. The jurors also apparently rejected
Dunaway’s claims of merely wanting to visit with appellant and his supposed use of
appellant as a cover to protect his actual supplier. Upon review, we find the jury did not
clearly lose its way and create a manifest miscarriage of justice requiring that appellant's
convictions for drug trafficking be reversed and a new trial ordered.
{¶28} Appellant's Second Assignment of Error is therefore overruled.
{¶29} For the foregoing reasons, the judgment of the Court of Common Pleas,
Tuscarawas County, Ohio, is hereby affirmed.
By: Wise, John, J.
Gwin, P. J., and
Wise, Earle, J., concur.
JWW/d 0615