State v. Land

[Cite as State v. Land, 2014-Ohio-1566.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 9-13-49
v.
DURAIN J. LAND, OPINION
DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court
Trial Court No. 13-CR-297
Judgment Affirmed
Date of Decision: April 14, 2014
APPEARANCES:
Kevin P. Collins for Appellant
Denise M. Martin for Appellee
Case No. 9-13-49
SHAW, J.
{¶1} Defendant-appellant Durain1 J. Land (“Land”) appeals the September
5, 2013 judgment of the Marion County Common Pleas Court sentencing Land to
twelve months in prison after Land was found guilty in a jury trial of Trafficking
in Heroin in violation of R.C. 2925.03(A)(1)/(C)(6), a felony of the fifth degree.
{¶2} The facts relevant to this appeal are as follows. On June 20, 2013,
Land was indicted in trial court criminal case 13-CR-0297 for (Count 1)
Trafficking in Heroin in violation of R.C. 2925.03(A)(1)/(C)(6), a felony of the
fifth degree, (Count 2) Trafficking in Heroin in violation of R.C.
2925.03(A)(1)/(C)(6), a felony of the fourth degree, and (Count 3) Possession of
Heroin in violation of R.C. 2925.11(A)/(C)(6), a felony of the fourth degree.
(Doc. 2).
{¶3} On June 24, 2013, Land was arraigned and pled not guilty to the
charges against him. (Doc. 4).
{¶4} On July 19, 2013, the charges in trial court case number 13-CR-0297,
were joined for the purposes of trial with the charges in trial court case number 13-
CR-0223. (Doc. 17).
{¶5} On August 13, 2013, the joined cases proceeded to trial. At trial, the
court ultimately suppressed evidence that was submitted regarding the trial court
1
There is a discrepancy in the record on how Land’s first name is spelled. We would note that where the
defendant was referred to in the transcript, his first name was spelled as “Durrain.” The indictment and the
appellate briefs in this case spell his name as “Durain.”
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case 13-CR-0223. (Doc. 45). Land’s counsel then moved for a mistrial as to the
trial court case before us, 13-CR-0297. (Id.) The trial court found that “[s]ince *
* * the jury had already heard evidence relevant to the Defendant’s possession of
suspected heroin, the Court agreed that the Defendant could not receive a fair trial
in the instant case [13-CR-0297] because the jury had already heard substantial
evidence which would not be admissible and which would be unfairly prejudicial.”
(Id.) Thus Land’s motion for a mistrial was granted. (Id.)
{¶6} Also on August 13, 2013, the State moved to dismiss Counts 2 and 3
of the indictment against Land. (Doc. 46). That motion was granted. (Id.)
{¶7} On September 4, 2013, Land’s new jury trial commenced on the single
remaining count of Trafficking in Heroin. At trial, the State presented the
testimony of four detectives who were all involved in a “controlled buy-bust” of
Land wherein a confidential informant purchased $200 of suspected heroin from
Land. The State also called a forensic scientist who tested the substance
purchased from Land and found the substance to be heroin. After the case was
submitted to the jury, the jury found Land guilty of the single count of Trafficking
in Heroin.
{¶8} On September 5, 2013, Land was sentenced to twelve months in
prison. (Doc. 63). An entry reflecting this sentence was filed that same date. (Id.)
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It is from this judgment that Land appeals, asserting the following assignment of
error for our review.
ASSIGNMENT OF ERROR
DEFENDANT-APPELLANT’S CONVICTION FOR
TRAFFICKING IN HEROIN IS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE IN VIOLATION OF THE
CONSTITUTIONS OF OHIO AND THE UNITED STATES.
{¶9} In his assignment of error, Land argues that his conviction for
Trafficking in Heroin was against the manifest weight of the evidence.
Specifically, Land contends that “the record lacks competent, credible evidence
that the chain of custody was established for the money purportedly used for the
controlled buy” and that none of the detectives who testified actually saw the drug
transaction.
{¶10} In reviewing whether a verdict was against the weight of the
evidence, the appellate court sits as a “thirteenth juror” and examines the
conflicting testimony. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). In
doing so, this Court must review the entire record, weigh the evidence and all of
the reasonable inferences, consider the credibility of witnesses, and determine
whether in resolving conflicts in the evidence, the factfinder “‘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. Andrews, 3d Dist. Allen No. 1–05–70,
2006-Ohio-3764, ¶ 30, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st
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Case No. 9-13-49
Dist.1983); Thompkins, 78 Ohio St.3d at 387. “[T]o ‘reverse a judgment of a trial
court on the weight of the evidence, when the judgment results from a trial by
jury, a unanimous concurrence of all three judges on the court of appeals panel
reviewing the case is required.’” State v. Miller, 96 Ohio St.3d 384, 2002-Ohio-
4931, ¶ 38, quoting Thompkins, paragraph four of the syllabus.
{¶11} In this case, Land was convicted of Trafficking in Heroin in violation
of R.C. 2925.03(A)(1)/(C)(6), which reads
(A) No person shall knowingly do any of the following:
(1) Sell or offer to sell a controlled substance or a controlled
substance analog;
***
(B) Whoever violates division (A) of this section is guilty of one
of the following:
(6) If the drug involved in the violation is heroin or a
compound, mixture, preparation, or substance containing
heroin, whoever violates division (A) of this section is guilty of
trafficking in heroin. The penalty for the offense shall be
determined as follows:
(a) Except as otherwise provided in division (C)(6)(b), (c), (d),
(e), (f), or (g) of this section, trafficking in heroin is a felony of
the fifth degree[.]
{¶12} To prove that Land committed Trafficking in Heroin, the State first
called Detective Mike Wheeler. Detective Wheeler testified that on June 3, 2013,
he was working with a confidential informant, Lacey Spicer, who told him that
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“she’d like to purchase [drugs] from a subject who goes by the name of Rainy.”2
(Tr. at 98). Detective Wheeler testified that the confidential informant sent
“Rainy” a text message on that day, June 3. (Id.) Rainy replied saying that he was
out of town “reupping,” which Detective Wheeler explained as “they travel
someplace else to buy their illegal narcotics that they’re going to sell.” (Id.) Since
“Rainy” was out of town, the buy was postponed to the next day, June 4, 2013.
(Id.)
{¶13} Detective Wheeler testified that on June 4, 2013, he was with the
confidential informant when she sent a text message to “Rainy” requesting to buy
$200 worth of heroin. (Tr. at 100). “Rainy” responded that “he was a good” and
that they should meet at the intersection of North Greenwood and Adams Street in
Marion. (Tr. at 100).
{¶14} Detective Wheeler testified that prior to taking the confidential
informant to the specified location, he searched her to make sure that she did not
have any drugs on her. (Tr. at 107). He also testified that he placed an audio
recording/transmitting device in her purse. (Tr. at 103). In addition, Detective
Wheeler testified that he provided the money to Lacey that she was to use in the
controlled buy. (Tr. at 101). Detective Wheeler testified that prior to giving the
2
Testimony revealed that the confidential informant was “working off” charges of “Possession of Heroin.”
She did not testify at trial.
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money to Lacey, the money was photographed either on June 3, 2013, or June 4,
2013. (Tr. at 110).
{¶15} According to Detective Wheeler, Lacey was instructed to use the
phrase “Bye, baby” after the exchange was made so the detectives listening to the
audio device in her purse would know that “she ha[d] the narcotics and the
exchange ha[d] taken place[.]” (Tr. at 104). Detective Wheeler testified that when
the exchange was made he was nearby but did not personally see the transaction.
However, Detective Wheeler testified that he was listening to the audio
transmission and when he heard Lacey use the phrase “bye baby,” he made it to
the scene in less than six seconds. (Tr. at 114). Detective Wheeler testified that
when he arrived at the scene “Rainy” and Lacey were less than ten feet apart and
that he ordered “Rainy” to the ground, who was later identified as Land. (Tr. at
105, 115). Detective Wheeler testified that he handcuffed Land and searched his
pockets, finding $200. (Tr. at 106). Detective Wheeler testified that there were no
other males or females in the area that he observed at that time. (Tr. at 114-115).
{¶16} Detective Christy Utley testified that she was involved in the “buy-
bust,” overseeing Detective Wheeler, and that when she heard the confidential
informant’s code phrase “bye baby” over the audio transmission she was also
nearby with Detective Wheeler and arrived on scene within six seconds. (Tr. at
125). Detective Utley testified that she secured the confidential informant while
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Detective Wheeler secured Land. (Tr. at 126). Detective Utley testified that the
confidential informant informed her that “it” was in her pocket. (Id.) Detective
Utley testified that she recovered four packages, or “bindles,” of suspected heroin
from the confidential informant at that time. (Id. at 126-127).
{¶17} Detective Dan Ice testified that he was also involved in the “buy-
bust.” Detective Ice testified that prior to the transaction, he saw Land walking on
Greenwood street. (Tr. at 140). Detective Ice testified that he took control of the
suspected heroin after Detective Utley had taken it from the informant. (Tr. at
142). Detective Ice testified that he field-tested the suspected heroin and that it
tested positive for heroin. (Tr. at 144). The heroin was subsequently sent to the
Ohio Bureau of Criminal Identification and Investigation (“BCI”). Larry Rentz,
who worked for BCI, testified that he tested the substance and that it was, in fact,
.3 grams of heroin. (Tr. at 189).
{¶18} In addition, Detective Ice testified that he took the money that was
recovered on Land and gave it to Detective Dave Troutman who was also involved
in the “buy-bust” conducting surveillance in the area. (Tr. at 157). Detective
Troutman testified that he compared the money that was handed to him by
Detective Ice, which had been recovered from Land, to the money in the
photographs and found that they matched. (Tr. at 161). Detective Troutman
testified that there were two copies of five $20 bills. (Tr. at 162). The copies of
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the money, the money itself, the heroin, the BCI report and the audio recording
were entered into evidence at trial.
{¶19} On appeal, Land contends that there were “chain of custody” issues
with the money and the copies of the money. However, Detective Wheeler
testified that he photographed the money used in the “buy-bust” either June 3, or
June 4, 2013. Detective Utley testified that the money was photographed before
the “buy-bust” took place. The money itself was given to the confidential
informant, who was searched prior to the transaction. After the transaction, that
money was recovered on Land and compared to the photographs of the money by
Detective Troutman. Detective Troutman testified that the photograph matched
the $200 recovered on Land. Under these circumstances we cannot find that there
was any chain of custody issue that would rise to the level of “manifest
miscarriage of justice.”
{¶20} Land next argues that none of the State’s witnesses actually saw the
alleged drug transaction. While it is true that none of detectives who testified saw
the transaction take place, all four detectives testified that they arrived on the
scene within six to twenty seconds, and all four further testified that there were no
other individuals, male or female, that were in the area. (Tr. at 114-115, 136, 149,
167). Detective Wheeler also testified that Land and the informant were less than
ten feet apart as he approached the scene. Thus the jury could certainly make the
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reasonable inference given the fact that the informant was searched before the
transaction and had no drugs on her and that she had drugs on her after the
recorded transaction wherein she used the appropriate “code word,” that she had
purchased drugs from Land. Accordingly, we cannot find that Land’s conviction
for Trafficking of Heroin was against the manifest weight of the evidence and his
assignment of error is overruled.
{¶21} For the foregoing reasons Land’s assignment of error is overruled
and the judgment of the Marion County Common Pleas Court is affirmed.
Judgment Affirmed
WILLAMOWSKI, P.J. and PRESTON, J., concur.
/jlr
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