State v. Schwab

[Cite as State v. Schwab, 2013-Ohio-4349.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ATHENS COUNTY
STATE OF OHIO, : Case No. 12CA39
:
Plaintiff-Appellee, :
: DECISION AND
v. : JUDGMENT ENTRY
:
TERRY SCHWAB, : RELEASED: 09/23/2013
:
Defendant-Appellant. :
______________________________________________________________________
APPEARANCES:
David J. Winkelmann, Athens, Ohio, for appellant.
Keller J. Blackburn, Athens County Prosecutor, and Merry M. Saunders, Athens County
Assistant Prosecutor, Athens, Ohio, for appellee.
______________________________________________________________________
Harsha, J.
{¶1} Terry Schwab appeals his convictions for various drug offenses and
argues they are supported by insufficient evidence and against the manifest weight of
the evidence. The first set of charges stemmed from an incident on March 9, 2011, in
which Schwab’s fiancée, Michelle Fidell, sold Oxycodone and her then minor daughter,
Tara Crego, sold Xanax (Alprazolam) to a confidential informant while inside Schwab’s
home. The second set of charges stemmed from an incident on April 1, 2011, in which
law enforcement initiated a traffic stop of a vehicle Schwab was driving, and he
purportedly gave Crego a bottle of Oxycodone which she hid in her bra.
{¶2} Schwab contends no evidence shows he was complicit in the aggravated
trafficking of Oxycodone and in the trafficking of Alprazolam that occurred during the
March 9 incident. However, the State introduced evidence that a few days before the
incident, Schwab told the informant he would have Xanax in a “few days” and would
Athens App. No. 12CA39 2
have “the Xanax and the 30’s,” i.e., Oxycodone. The State also offered evidence Fidell
sold drugs for Schwab in the past, the drugs sold to the informant belonged to Schwab,
and before the sales occurred, Schwab nodded his approval for the Xanax sale and
either told Crego to give the informant “what she wants” or to “[j]ust give her anything.”
Based on the State’s version of events, the jury could reasonably find that Schwab
aided and abetted Fidell and Crego in the transactions and return guilty verdicts. The
jury did not clearly lose its way and create such a manifest miscarriage of justice that we
must reverse the convictions. The convictions are not against the manifest weight of
the evidence and sufficient evidence supports them.
{¶3} Next, Schwab complains about his conviction for corrupting another with
drugs for the March 9 incident. The jury found he corrupted Crego with Oxycodone, but
the State presented no evidence he administered or furnished Crego with that drug
during the incident. It is clear from the evidence that Fidell handled the sale of
Oxycodone while Crego handled the Xanax sale. Therefore, we agree insufficient
evidence exists to support the conviction and reverse it. This decision renders
Schwab’s manifest weight argument on this conviction moot.
{¶4} Schwab also challenges his conviction for corrupting another with drugs
(Oxycodone) during the April 1 incident and argues there is no evidence he furnished or
administered the drug to Crego. However, Crego testified that after police initiated the
traffic stop, Schwab handed her a pill bottle of Oxycodone, which she hid in her bra.
Schwab and a passenger snorted pills from this bottle during their road trip. The jury
could infer that Schwab knowingly provided or supplied Crego with the bottle in order to
conceal it from police and avoid criminal liability. The jury could reasonably return a
Athens App. No. 12CA39 3
guilty verdict based on the State’s version of events. The conviction is not against the
manifest weight of the evidence and is supported by sufficient evidence.
{¶5} Finally, Schwab challenges his conviction for complicity to aggravated
possession of drugs based on the April 1 traffic stop. However, from Crego’s testimony
the jury could reasonably conclude Schwab handed her the bottle of Oxycodone and
thereby knowingly aided or abetted her in possessing a schedule II controlled
substance. Therefore, we find this conviction is not against the manifest weight of the
evidence and is supported by sufficient evidence.
I. Facts
{¶6} The Athens County grand jury indicted Schwab on one count of
aggravated trafficking in drugs, two counts of corrupting another with drugs, one count
of trafficking in drugs, and one count of aggravated possession of drugs. The matter
proceeded to a jury trial, which produced the following evidence.
{¶7} Byron Guinther, an agent for the Ohio Department of Public Safety,
testified that Patricia Vore agreed to become a confidential informant (“CI”) after he
caught her selling food stamps. On March 9, 2011, she made a controlled buy of three
or four Xanax “bars” and one Oxycodone pill from Schwab’s house. On April 1, 2011,
another CI spoke to Schwab’s fiancée, Michelle Fidell. From that conservation,
Guinther understood that “[t]hey didn’t have anything in hand at that time but [Schwab]
was in route back * * *.” Guinther learned Schwab and Crego were coming back from
Columbus and what vehicle they would be in. He gave this information to law
enforcement agents who initiated a traffic stop of the vehicle.
{¶8} Patricia Vore testified that she has a drug problem and is a felon.
Athens App. No. 12CA39 4
Guinther caught her selling food stamps to buy heroin, so she agreed to become a CI to
avoid prosecution for welfare fraud. She told Guinther she could buy drugs from
Schwab. However, she was not confident about this, so before Vore officially became a
CI she went to Schwab’s home on her own to see if she could buy drugs. Her friend
Robert Degarmore was there, and she bought a “Roxy 30,” i.e., Oxycodone, from him.
Schwab told Vore he would have Xanax “in a few days.” Vore also testified Schwab told
her he would “have the Xanax and the 30’s.”
{¶9} Vore made her first controlled buy from Schwab’s house on March 9,
2011. When she arrived, Schwab was on the phone, Fidell, and Crego were in the
living room. Vore asked about Xanax, and Crego pulled out a “big bag” of Xanax bars.
Crego “looked up at [Schwab] and he gave her like a nod, like go ahead and give her
what she wants kind of, because she didn’t know me.” He also told Crego, “Give her
what she wants,” in regards to the Xanax. Crego counted the bars out on a table. Fidell
also got pills out – she had “the 30’s, the pills, or the 15’s,” i.e., the Oxycodone. Vore
negotiated with Fidell and ultimately bought Xanax bars and one Oxycodone pill. Vore
made two more controlled buys at Schwab’s house but dealt with Fidell both times.
{¶10} Eighteen-year-old Tara Crego testified that she and her mom lived with
Schwab for several years. He had medical problems, and Crego and her mom helped
administer his medications. Crego suggested he abused pain medications – he snorted
pills and took more than he could get through doctors. Sometimes Crego went with him
to Columbus when he had doctor’s appointments. On the way home, they would fill his
prescriptions and four or five hours later people would come to buy drugs, typically “30’s
and Xanax.” People bought drugs multiple times a week. Crego claimed Schwab told
Athens App. No. 12CA39 5
her mom to sell his drugs for him. Fidell did and gave him the money.
{¶11} Crego testified about two incidents that occurred when she was 17. On
March 9, 2011, a woman came to the house and asked if “anybody had anything,” and
“we said yes.” Schwab told Crego to “[j]ust give her anything.” Fidell took the woman
into the kitchen and “laid them out on the table * * *.” According to Crego, her mom and
Schwab told her to give the woman Xanax bars. Crego got a bag of Schwab’s Xanax
bars from a kitchen cabinet and counted out four. The woman put her money on the
table. Crego sold four bars to the woman, and Fidell sold the woman “[a] 30.” Crego
testified that this Oxycodone also belonged to Schwab. The sale occurred in the
kitchen, and during it, Schwab stayed in the living room on the phone.
{¶12} On April 1, 2011, Crego went with Schwab and Degarmore to Columbus.
During the road trip, Schwab and Degarmore each snorted two Oxycodone pills from a
bottle in Schwab’s pocket. While in Columbus, Schwab briefly went inside a house of a
person Crego did not know before the group went home. Schwab handed his pill bottle
to Crego when police stopped them. She thought he did so because he was scared or
nervous and she was “underage” and “wouldn’t have got checked or searched.” She
hid the bottle in her bra but ultimately gave it to police.
{¶13} Crego testified she was charged with various offenses in a juvenile court
case due to these events. She had an adjudicatory hearing and pleaded guilty to
aggravated possession of drugs, tampering with evidence, and trafficking in drugs – all
felonies. However, if she testified truthfully against Schwab her case would be
“disposed of as a misdemeanor and not as a felony.” On cross, Crego admitted that
when she first spoke to police, she did not tell them Schwab did anything wrong.
Athens App. No. 12CA39 6
{¶14} Robert Degarmore testified that on April 1, 2011, he and Crego
accompanied Schwab to Columbus so Schwab could get some pills. Schwab went
alone into a house there for a few minutes before the group headed home. Degarmore
claimed Schwab did not show him any pills but admitted they “did two pills” together on
the way home. Later the police stopped them, and Crego gave the officers a bottle of
pills. He did not know how Crego got the bottle, but Schwab was the last person he had
seen with it. Degarmore claimed that during his first police interview, he lied about what
he knew because he was under the influence of drugs and trying to save his “own ass.”
{¶15} Michelle Fidell testified she had two felony convictions and was
incarcerated. Her first conviction was for selling Oxycodone in Schwab’s house in 2010.
The second was for the March 9, 2011 incident. In exchange for her truthful testimony,
the State agreed to not oppose judicial release on her 2010 case. Fidell denied ever
selling drugs for Schwab and gave inconsistent testimony on whether she ever sold his
drugs without his consent. Fidell claimed that she normally sold her own pills. She
gave inconsistent testimony on Schwab’s level of awareness of her activities. Fidell
testified that she sold her own pills on March 9, 2011 “[a]s far as I can remember.” She
could not remember if she had someone waiting to buy pills that Schwab was bringing
from Columbus on April 1, 2011.
{¶16} The State presented evidence that the pill bottle seized during the traffic
stop contained 146 Oxycodone pills. The bottle indicated it contained 84, 15 milligram
tablets of Oxycodone prescribed to Schwab and that he was to take one tablet three
times a day. According to a report on Schwab’s prescription medications, a doctor had
last prescribed him 84, 15 milligram Oxycodone pills on March 14, 2011. Guinther
Athens App. No. 12CA39 7
testified that during an interview with police, Schwab claimed he sometimes took 12 pills
a day. However, on the recording, Schwab also claimed he sometimes took less.
Schwab suggested the pill bottle contained more pills than the bottle said because he
put pills from other prescriptions in it. He denied knowing Crego had the pills during the
stop but claimed she sometimes carried his pills in her bra. Schwab claimed that in the
past, he was shocked to learn Fidell had sold his pills. He claimed he never sold drugs
and denied knowledge that anyone recently bought drugs in his home.
{¶17} For the March 9 incident, the jury found Schwab guilty of: 1.) complicity to
aggravated trafficking in drugs (Oxycodone) in the vicinity of a juvenile; 2.) corrupting
another with drugs (Oxycodone); and 3.) complicity to trafficking in drugs (Alprazolam)
in the vicinity of a juvenile. For the April 1 incident, the jury found him guilty of: 1.)
corrupting another with drugs (Oxycodone); and 2.) complicity to aggravated possession
of drugs (Oxycodone) in an amount equal to or in excess of five times the bulk amount
but less than 50 times the bulk amount. After sentencing, this appeal followed.1
II. Assignments of Error
{¶18} Schwab assigns the following errors for our review:
Assignment of Error I: The Record Establishes that There was Insufficient
Evidence to Convict Terry Schwab on All Counts.
Assignment of Error II: The Jury’s Verdict on All Counts of the Indictment
was Against the Manifest Weight of the Evidence.
III. Manifest Weight of the Evidence and Sufficiency of the Evidence
A. Standards of Review
{¶19} In his first assignment of error, Schwab contends insufficient evidence
1
In the sentencing entry, the trial court did not mention the fact that several of the convictions were for
complicity and instead suggested they were all for principal offenses.
Athens App. No. 12CA39 8
exists to support his convictions. As the Supreme Court of Ohio explained in State v.
Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 219:
A claim raising the sufficiency of the evidence invokes a due
process concern and raises the question whether the evidence is legally
sufficient to support the jury verdict as a matter of law. * * * In reviewing
such a challenge, “[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, following Jackson v. Virginia (1979),
443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.
{¶20} In his second assignment of error, Schwab claims his convictions are
against the manifest weight of the evidence. “When an appellate court concludes that
the weight of the evidence supports a defendant’s conviction, this conclusion
necessarily includes a finding that sufficient evidence supports the conviction.” State v.
Puckett, 191 Ohio App.3d 747, 2010-Ohio-6597, 947 N.E.2d 730, ¶ 34 (4th Dist). Thus,
if we find Schwab’s convictions are supported by the weight of the evidence, that
determination will also be dispositive on the issue of sufficiency even though the
analysis for each argument is different. Id.{¶21} “In determining whether a criminal conviction is against the manifest
weight of the evidence, an appellate court must review 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.” State v. Brown, 4th Dist. Athens No. 09CA3, 2009-Ohio-5390, ¶ 24, citing
State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). We “may not
reverse a conviction when there is substantial evidence upon which the trial court could
Athens App. No. 12CA39 9
reasonably conclude that all elements of the offense have been proven beyond a
reasonable doubt.” State v. Johnson, 58 Ohio St.3d 40, 42, 567 N.E.2d 266 (1991).
{¶22} Even in acting as a thirteenth juror we must still remember that the weight
to be given evidence and the credibility to be afforded testimony are issues to be
determined by the trier of fact. State v. Frazier, 73 Ohio St.3d 323, 339, 652 N.E.2d
1000 (1995). The fact finder “is best able to view the witnesses and observe their
demeanor, gestures, and voice inflections, and use these observations in weighing the
credibility of the proffered testimony.” Seasons Coal Co. v. Cleveland, 10 Ohio St.3d
77, 80, 461 N.E.2d 1273 (1984). Thus, we will only interfere if the fact finder clearly lost
its way and created a manifest miscarriage of justice.
B. The March 9 Incident
{¶23} For the March 9 incident, the jury found Schwab guilty of complicity to
aggravated trafficking in Oxycodone and to trafficking in Alprazolam. R.C. 2923.03, the
complicity statute, states:
(A) No person, acting with the kind of culpability required for the
commission of an offense, shall do any of the following:
(1) Solicit or procure another to commit the offense;
(2) Aid or abet another in committing the offense;
(3) Conspire with another to commit the offense in violation of section
2923.01 of the Revised Code;
(4) Cause an innocent or irresponsible person to commit the offense.
***
{¶24} “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,
Athens App. No. 12CA39 10
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, 754 N.E.2d 796 (2001), syllabus. “ ‘[T]he mere presence of an accused
at the scene of a crime is not sufficient to prove, in and of itself, that the accused was an
aider and abettor.’ ” Id. at 243, quoting State v. Widner, 69 Ohio St.2d 267, 269, 431
N.E.2d 1025 (1982).
{¶25} R.C. 2925.03(A)(1), the trafficking statute at issue, states: “(A) No person
shall knowingly do any of the following: (1) Sell or offer to sell a controlled substance or
a controlled substance analog[.]” If the person sells Oxycodone, a schedule II drug, the
offense is aggravated trafficking in drugs. R.C. 2925.03(C)(1); R.C. 3719.41, Schedule
II(A)(1)(n). If the person sells Alprazolam (Xanax), a schedule IV drug, the offense is
trafficking in drugs. R.C. 2925.03(C)(2); R.C. 3719.41, Schedule IV(B)(1).
{¶26} Schwab does not dispute the fact that the trafficking offenses occurred in
his home on March 9, 2011, or that they occurred in the vicinity of a juvenile. However,
he denies complicity to them. He claims Crego and Fidell had access to his
medications and sold them without his knowledge. Schwab claims the only evidence of
his complicity is the “prosecutor’s testimony that he told Crego to go ahead and give
Vole [sic] pills on March 9, 2011.” (Appellant’s Br. 5). And if he did make a statement
on the “buy tape” to the effect that someone should give her want she wants, that “may
well have been [his] response to a question by whomever he was talking to on the
telephone.” (Appellant’s Br. 5). Later in his brief, Schwab acknowledges “several
inferences” could be drawn about what happened on March 9. The “preferred”
Athens App. No. 12CA39 11
inference “lead[s] to the conclusion that Fidell and Crego removed drugs that [he] had
been stockpiling for personal use and sold them to Vore while [he] was on the telephone
in the other room.” (Appellant’s Br. 7). Schwab highlights the fact that Vore bought
drugs from Fidell two more times.
{¶27} However, the evidence adduced at trial established more than Schwab’s
“mere presence” in the house while Crego and Fidell trafficked in drugs. Crego testified
without objection that people came to Schwab’s house multiple times a week to
purchase his Oxycodone and Alprazolam. Crego testified that Schwab told Fidell to sell
the drugs for him, which Fidell did and gave Schwab the money. According to Vore’s
testimony, a few days before the March 9 incident she purchased Oxycodone at
Schwab’s house. Schwab told her that he would have Xanax “in a few days.” And
Schwab said he would “have the Xanax and the 30’s.” Vore testified that when she
went to the house on March 9, and asked about the Xanax, Crego pulled out a bag of
bars. Before Crego sold them, she “looked up at Terry and he gave her like a nod, like
go ahead and give her what she wants kind of, because [Crego] didn’t know me.” Vore
testified that Schwab told Crego, “Give her what she wants,” in regards to the Xanax.
Crego also testified that Fidell and Schwab told her to give Vore the Xanax bars. Crego
claimed Schwab said to “[j]ust give [Vore] anything.” And Crego testified that the
Oxycodone and Alprazolam which she and Fidell sold to Vore belonged to Schwab.
{¶28} This evidence reasonably supports the conclusion that Schwab knowingly
encouraged or assisted Fidell and Crego in trafficking Oxycodone and Alprazolam, i.e.,
he aided or abetted them. We need not consider whether the jury could have also
concluded the evidence fit one of the other types of complicity in R.C. 2923.03(A). The
Athens App. No. 12CA39 12
jury was free to conclude that Schwab intentionally stayed in the living room while his
fiancée and her daughter sold his drugs in the kitchen in an effort to shield himself from
criminal liability. The jury was likewise free to disbelieve Fidell’s testimony and
Schwab’s statement to the effect that she never sold drugs for him, particularly in light of
the close relationship they share.
{¶29} After reviewing the entire record, we cannot say that the jury lost its way or
created a manifest miscarriage of justice when it found Schwab guilty of complicity to
aggravated trafficking in drugs and to trafficking in drugs. Accordingly, we find those
convictions are not against the manifest weight of the evidence. Thus, we necessarily
also conclude that sufficient evidence supports these convictions. We overrule the first
and second assignment of error to the extent Schwab challenges these convictions.
{¶30} Next, we address Schwab’s conviction for corrupting another with drugs
during the March 9 incident. R.C. 2925.02, the statute on this offense, provides:
(A) No person shall knowingly do any of the following:
(4) By any means, do any of the following:
(a) Furnish or administer a controlled substance to a juvenile who is at
least two years the offender’s junior, when the offender knows the age
of the juvenile or is reckless in that regard[.]
***
The jury found Schwab corrupted another with Oxycodone, a schedule II drug, during
this incident. This made his conviction a second degree felony. R.C. 2925.02(C)(1).
{¶31} Schwab does not dispute the fact that he knew Crego was a juvenile when
the March 9 incident occurred. He also does not dispute the fact that she was at least
two years his junior. Instead, he appears to argue that he did not knowingly furnish or
Athens App. No. 12CA39 13
administer Oxycodone to her during the incident.
{¶32} Administer means “the direct application of a drug, whether by injection,
inhalation, ingestion, or any other means to a person or an animal.” R.C. 3719.01(A).
See R.C. 2925.01(A). We agree the record lacks any evidence that Schwab
administered Oxycodone to Crego during the March 9 incident.
{¶33} The Revised Code does not define “furnish,” and the parties dispute the
meaning of the word. “Statutory interpretation presents a legal issue we review de
novo.” Denuit v. Ohio State Bd. of Pharmacy, 4th Dist. Jackson Nos. 11CA11 &
11CA12, 2013-Ohio-2484, ¶ 30. “The primary goal in construing a statute is to
ascertain and give effect to the intent of the legislature.” In re M. W., 133 Ohio St.3d
309, 2012-Ohio-4538, 978 N.E.2d 164, ¶ 17. “When analyzing a statute, we first
examine its plain language and apply the statute as written when the meaning is clear
and unambiguous.” Id. We must “read words and phrases in context and construe
them according to the rules of grammar and common usage.” Id., citing R.C. 1.42. If a
statutory term is not defined, “ ‘it should be accorded its plain and ordinary meaning.’ ”
State ex rel. Data Trace Information Servs., L.L.C. v. Cuyahoga Cty. Fiscal Officer, 131
Ohio St.3d 255, 2012-Ohio-753, 963 N.E.2d 1288, ¶ 49, quoting Rhodes v. New
Philadelphia, 129 Ohio St.3d 304, 2011-Ohio-3279, 951 N.E.2d 782, ¶ 17. “ ‘Courts
have used dictionary definitions to determine the plain and ordinary meaning of a
statutory term.’ ” Denuit at ¶ 30, quoting State v. Jackson, 12th Dist. Butler No. CA2011-
06-096, 2012-Ohio-4219, ¶ 34.
{¶34} Black’s Law Dictionary 466 (Abridged 6th Ed.1991) defines “furnish” to
mean “[t]o supply, provide, or equip, for accomplishment of a particular purpose.” For
Athens App. No. 12CA39 14
the March 9 incident, we conclude there is no evidence Schwab supplied, provided, or
equipped Crego with Oxycodone for any purpose. All of the evidence indicates Crego
handled the Xanax and Fidell handled the Oxycodone during the transaction with Vore.
Because no evidence exists that Schwab furnished or administered Oxycodone to
Crego during the March 9 incident, we find there is insufficient evidence to support that
conviction for corrupting another with drugs and reverse it.
{¶35} We sustain the first assignment of error concerning the conviction for
corrupting another with drugs for the March 9 incident. This decision renders moot
Schwab’s second assignment of error concerning this conviction. See App.R.
12(A)(1)(c). “A reversal based on the weight of the evidence * * * can occur only after
the State both has presented sufficient evidence to support conviction and has
persuaded the jury to convict.” (Emphasis sic). Thompkins, 78 Ohio St.3d at 388, 678
N.E.2d 541, quoting Tibbs v. Florida, 457 U.S. 31, 42-43, 102 S.Ct. 2211, 72 L.Ed.2d
652 (1982).
C. The April 1 Incident
{¶36} Next, Schwab challenges his convictions that stem from the April 1 traffic
stop – corrupting another with drugs (Oxycodone) and complicity to aggravated
possession of drugs. We set forth the pertinent law on corrupting another with drugs
and quoted the relevant portions of the complicity statute above. R.C. 2925.11(A), the
drug possession statute at issue, provides: “No person shall knowingly obtain, possess,
or use a controlled substance or a controlled substance analog.” “If the drug involved in
the violation is a compound, mixture, preparation, or substance included in schedule I or
II, with [certain exceptions] * * * whoever violates division (A) of this section is guilty of
Athens App. No. 12CA39 15
aggravated possession of drugs.” R.C. 2925.11(C)(1). Oxycodone is the schedule II
controlled substance at issue here. Schwab does not dispute the jury’s finding that the
amount of Oxycodone police seized was equal to or in excess of five times the bulk
amount but less than 50 times the bulk amount.
{¶37} Schwab complains that despite Crego’s plea in juvenile court, “there is no
evidence that she tampered with evidence or trafficked in drugs on [April 1, 2011].”
(Appellant’s Br. 6). However, such proof is not necessary for either conviction at issue.
Schwab also claims there is “no evidence that [he] intended to sell the drugs contained
in the pill bottle,” and the evidence points only to “personal use” by him and Degarmore.
(Appellant’s Br. 6). Likewise, evidence of intent to sell is not necessary for either
charge.
{¶38} Later in his brief, Schwab contends that the “April 1, 2011 incident is * * *
easily explained by concluding that [he] had the pills that were later discovered * * * on
his person before leaving the Nelsonville residence. Neither Crego nor Degarmore saw
what [he] did inside the rresidence [sic] in Columbus, and Cregor [sic] testified that [he]
took pills from the same bottle on the to [sic] Columbus as well as coming back. The
better conclusion is that the drugs had been on [his] person during the entire trip and
that they had been stockpiled for his personal use.” (Appellant’s Br. 7).
{¶39} We find this argument confusing. Schwab seems to contend the pills
Crego had were prescribed to him, so he and Crego could legally possess them. He
cites no legal authority to support this claim. He indicates the reason the number of pills
in the bottle exceeded his most recent prescription is that he stockpiled them from past
prescriptions. However, the jury was free to conclude Schwab lacked a prescription for
Athens App. No. 12CA39 16
the pills seized. The fact that Schwab gave the pills to Crego when police stopped them
supports that conclusion. And Schwab’s stockpiling claim is inconsistent with evidence
that suggests he was addicted to Oxycodone and complicit to trafficking in it.
{¶40} Looking to the April 1 corrupting another with drugs charge, Schwab’s
argument focuses on whether he furnished or administered a controlled substance to
Crego. Ample evidence supports the jury’s conclusion that he furnished her with
Oxycodone. Contrary to Schwab’s argument, the State did not have to prove that he
furnished Crego with the drug “for her own use.” (Appellant’s Br. 6). Again, Crego
testified that Schwab handed her the bottle and she hid it in her bra after police initiated
the stop. Crego thought he gave her the bottle because he was scared or nervous and
she was “underage” and “wouldn’t have got checked or searched.” Based on this
testimony, the jury could find Schwab knowingly supplied, provided, or equipped her
with Oxycodone to conceal it from law enforcement and protect himself from criminal
liability.
{¶41} Moreover, the jury could conclude from Crego’s testimony that Schwab
aided and abetted her possession of the pill bottle full of Oxycodone. Again, she
testified that he handed her the pill bottle when police stopped them. The jury could
reasonably find he knowingly assisted or encouraged her, i.e., he aided or abetted her,
to commit the offense of aggravated possession of drugs. We need not determine
whether the jury could have also concluded the evidence fit one of the other types of
complicity listed in R.C. 2923.03(A).
{¶42} After reviewing the entire record, we cannot say that the jury lost its way or
created a manifest miscarriage of justice when it found Schwab guilty of corrupting
Athens App. No. 12CA39 17
another with drugs and complicity to aggravated possession of drugs for the April 1
incident. We find those convictions are not against the manifest weight of the evidence.
Thus, we necessarily also conclude that sufficient evidence supports them.
IV. Conclusion
{¶43} In sum, we overrule the first assignment of error except as to the
corrupting another with drugs charge for the March 9 incident. We reverse that
conviction and remand for the court to discharge Schwab on that charge. The second
assignment of error is moot concerning the March 9 corrupting another with drugs
charge. In all other respects, we overrule the second assignment of error.
JUDGMENT AFFIRMED IN PART,
REVERSED IN PART,
AND CAUSE REMANDED.
Athens App. No. 12CA39 18
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED IN PART, REVERSED IN PART
and that the CAUSE IS REMANDED. Appellant and Appellee shall split the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Athens
County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Abele, J. & Hoover, J.: Concur in Judgment and Opinion.
For the Court
BY: ____________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.