State v. Edwards

[Cite as State v. Edwards, 2013-Ohio-4342.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 12AP-992
v. : (C.P.C. No. 10CR-05-2864)
Tommy L. Edwards, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on September 30, 2013
Ron O'Brien, Prosecuting Attorney, and Laura R. Swisher,
for appellee.
Yeura R. Venters, Public Defender, and David L. Strait, for
appellant.
APPEAL from the Franklin County Court of Common Pleas.
SADLER, J.
{¶ 1} Defendant-appellant, Tommy L. Edwards, appeals from a judgment of the
Franklin County Court of Common Pleas convicting him of possession of marijuana. For
the following reasons, we affirm the judgment of the trial court.
I. BACKGROUND
{¶ 2} Appellant was indicted on one count of possession of marijuana, a fifth-
degree felony, in violation of R.C. 2925.11. Appellant filed a motion to suppress the
evidence of marijuana seized at his home as well as statements he made to officers after
his arrest because he claims they were the result of a search based on a warrant that
No. 12AP-992 2
lacked probable cause. Appellee filed a memorandum in opposition, and the trial court
held a hearing on the motion.
{¶ 3} Therein, appellee presented the following evidence. On July 11, 2008,
Sergeant Duane Mabry of the Columbus Division of Police was assigned to the "Zone 2
summer strike force initiative" when he received a phone call from another officer, asking
him to draft a search warrant for 3178 Weirton Drive. (Nov. 7, 2011 Motion Tr., 8.)
According to Mabry, after receiving information that drugs were being sold out of that
residential address, officers began surveilling the house. Mabry stated on three occasions
that individuals were observed entering the home and leaving after staying only a few
minutes. Mabry stated this behavior was consistent with "drug activity at a drug house."
(Tr. 11.) According to Mabry, officers at the scene conducted traffic stops on all three
individuals and recovered over eight pounds of marijuana.
{¶ 4} According to Mabry, an hour later, Jimmy Berry was stopped after leaving
the Weirton Drive location and in Berry's possession was a gun, two pounds of marijuana,
and a digital scale. Mabry testified Berry told officers he was sent to the home on Weirton
Drive by appellant and instructed to "clean the house out." (Tr. 13.) Based on the
encounter with Berry, officers entered the home to prevent the destruction of evidence,
insured evidence was not being destroyed, left the home, and waited for Mabry's arrival.
According to Mabry, he finished drafting the warrant for Weirton Drive, had a judge sign
it, and executed the warrant at 9:35 a.m.
{¶ 5} Detective Ty Downard is a narcotics detective for the Reynoldsburg Police
Department and was assigned to investigate appellant's home at 220 Chatterly Lane.
According to Downard, the Reynoldsburg Police Department received an anonymous tip
on January 16, 2008, that appellant was selling "pounds of marijuana" on the east side of
Columbus and Reynoldsburg and resided at 220 Chatterly Lane. (Tr. 32.) He further
testified that "sometime later" the Columbus Police Department informed him of the
surveillance and search of the Weirton Drive residence, as well as Berry's statement to
police that appellant had instructed him to pick up marijuana from the Weirton Drive
location and that appellant has sold marijuana for years. (Tr. 32.) After receiving the
above tip and information, Downard stated he began conducting trash pulls at appellant's
home. According to Downard, the first trash pull occurred on September 19, 2008, and
No. 12AP-992 3
he collected what appeared to be marijuana stems, seeds, and "shake."1 (Tr. 34.)
According to Downard, he field tested the stems and seeds and it came back positive for
marijuana.
{¶ 6} Downard testified he conducted surveillance on September 21, 2008 and
observed appellant exit and enter the residence. Downard stated appellant's vehicle was
registered to the 220 Chatterly Lane address. According to Downard, he conducted a
second trash pull on September 26, 2008 and discovered marijuana stems and seeds, four
roaches, and a letter of residence for 220 Chatterly Lane connecting the trash to appellant.
Based on all of the above information and appellant's criminal history,2 Downard
obtained a search warrant for narcotics.
{¶ 7} The suppression hearing concluded with closing statements. Appellant
argued both of the search warrants were not "particularized enough to be sufficient" and
were overbroad. (Tr. 50.) Specifically, appellant argued that the Weirton Drive warrant
failed because the premises were "searched" ahead of time, and the Chatterly Lane
warrant failed because its probable cause justification was based off information obtained
at Weirton Drive.3 Appellant further argued the Chatterly Lane warrant was intentionally
misleading. In opposition, appellee argued exigent circumstances existed for the
protective sweep at the Weirton Drive home and that the warrants did not contain
misleading information. Finally, appellee argued, based on all the evidence presented,
there was probable cause for each warrant.
{¶ 8} The trial court denied appellant's motion to suppress and held that probable
cause existed for the issuance of both search warrants. The court reasoned probable cause
was established for the Weirton Drive warrant when officers set up surveillance and
within hours had stopped four individuals who visited the home and collected over ten
pounds of marijuana. The trial court also held that, based on Berry's statements, the
doctrine of exigencies applied and justified the officers' initial protective sweep of the
Weirton Drive home prior to obtaining and executing a search warrant.
1 According to Downard, "shake" is what remains after a cigar's tobacco content is replaced with marijuana.
2 Downard testified appellant had been convicted of trafficking in marijuana, possession of marijuana,
preparation of drugs for sale, weapons under disability, domestic violence, assault, aggravated menacing,
criminal damaging, and telephone harassment.
3 Appellant does not challenge the protective sweep entry into the Weirton Drive location on appeal.
No. 12AP-992 4
{¶ 9} The trial court held probable cause also existed for the Chatterly Lane home
search, reasoning that, though each fact in the warrant individually would not be enough
to satisfy probable cause, the totality of the facts alleged were sufficient.
{¶ 10} Appellant filed a second motion to suppress, alleging the statements he
made to Sergeant Shane Mauger of the Reynoldsburg Police Department after the search
of his residence were taken in violation of his constitutional rights. Appellee filed a
memorandum in opposition, and the trial court held a hearing on the motion.
{¶ 11} At the second hearing, appellee presented the testimony of Mauger and
Downard. According to Mauger, he conducted a tape recorded interview of appellant at
his home while the search was coming to a close. Mauger testified that he advised
appellant of his constitutional rights prior to any questioning. Mauger stated appellant
must have indicated he understood his rights or he would not have continued with the
interview. Appellant's response to Mauger's question, "[d]o you understand your rights"
was inaudible on the audio tape. The suppression hearing concluded with closing
arguments.
{¶ 12} The trial court denied appellant's motion holding "[b]ased on the totality of
these circumstances I find that the Defendant indicated that he understands his rights."
(Tr. 165.) The holding was based on Mauger's testimony that he would not have
continued with questioning if appellant had not in some way indicated he understood his
rights and that, from the court's own interactions with appellant, he is an intelligent man
who "is not shy about either invoking his rights or speaking his mind when he chooses to."
(Tr. 165.)4 Having overruled both of appellant's motions to suppress, the case continued
to trial.
{¶ 13} Relevant to this appeal, the following evidence was adduced from the
appellee's case-in-chief. Mauger was the team leader for the September 30, 2008 search
of Chatterly Lane. According to Mauger, SWAT approached the home and knocked and
announced their intention to enter. Once SWAT entered the home, Mauger testified his
team secured the location and began executing the search warrant. Mauger stated he
4 Appellant does not appeal this ruling by the trial court.
No. 12AP-992 5
seized a "Wal-Mart bag" containing nine smaller bags of marijuana, a digital scale,
baggies, and a letter of residence connecting the trash to appellant's home. (Tr. 233.)
{¶ 14} Appellee's final witness was Shervonne Bufford, a forsensic drug chemist
employed by the Ohio Attorney General's Office Bureau of Criminal Investigation.
According to Bufford, she tested and weighed what officers assumed was marijuana seized
at appellant's home. Bufford stated she used the "[h]ypergeometric sampling" method in
testing for the presence of marijuana in the nine bags which, in this case, resulted in her
testing seven of the nine bags for the presence of marijuana. (Tr. 261.) According to
Bufford, the hypergeometric sampling method is a commonly accepted practice in the
scientific field and only requires the testing of a specific amount of the sample and then
applies those results to the untested remainder, as long as the untested remainder is
"homogenous" or looks consistent. (Tr. 307.) Bufford testified to a reasonable degree of
scientific certainty that the nine bags weighed 212.0 grams and contained marijuana or
cannabis.
{¶ 15} On cross-examination, Bufford was asked to add up the weights of the seven
bags actually tested for the presence of marijuana under the hypergeometric sampling
method, excluding the two untested bags. Bufford testified the weight of the seven bags
actually tested for the presence of marijuana was 161.36 grams. Appellant's counsel then
began questioning Bufford on the Ohio legislature's legal definition of marijuana,
specifically, whether the legislature intended to exclude the stalk and stem of the plant
from that definition. Appellee objected, arguing the legal definition of marijuana did not
require the separation of the stalk and stem, and the jury should not be privy to this line of
questioning. The trial court recessed and heard testimony from Bufford on this issue
outside the hearing of the jury. At the conclusion of the testimony, the court instructed
both counsel to conduct research on the issue.
{¶ 16} After researching the issue, the parties agreed that the Supreme Court of
Ohio's decision in State v. Wolpe, 11 Ohio St. 3d 50 (1984), does not require the separation
of the stems for purposes of determining weight; however, appellant argued Wolpe's
No. 12AP-992 6
holding, as applied, is unconstitutional.5 The trial court disagreed and sustained
appellee's objection.
{¶ 17} After the testimony of Bufford, appellee rested. Appellant moved for a
Crim.R. 29 judgment of acquittal, which the trial court denied. Appellant rested without
putting on evidence, and the case was submitted to the jury.
{¶ 18} The jury returned a verdict finding appellant guilty of one count of
possession of marijuana. Appellant was sentenced and this appeal followed.
II. ASSIGNMENTS OF ERROR
{¶ 19} Appellant brings the following two assignments of error for our review:
I. The trial court erred in denying the motion to suppress
because the affidavit supporting the search warrant neither
established probable cause nor could be relied on in good faith
by the searching officers.
II. The trial court erred when it denied a Rule 29 Motion for
Judgment of Acquittal when the chemist used the
hypergeometric sampling method to determine the presence
of drugs and the undisputed evidence showed that the
quantity of drugs thus identified was within the statistical
margin of error of the sampling method. In such
circumstances, the State has necessarily failed to prove felony-
level quantity beyond a reasonable doubt and the conviction
denies the defendant due process of law and a fair trial.
In the alternative, the jury's verdict was against the manifest
weight of the evidence.
III. DISCUSSION
A. First Assignment of Error
{¶ 20} In his first assignment of error, appellant challenges the denial of his
motion to suppress. Specifically, appellant argues the anonymous tip was stale, in that it
was eight months between the tip and the search and that the search warrant for his
residence lacked sufficient indicia of drug trafficking to establish probable cause, or in the
alternative, officers lacked good faith in executing the warrant. We disagree.
5 Appellant does not pursue this issue on appeal.
No. 12AP-992 7
{¶ 21} "Appellate review of a motion to suppress presents a mixed question of law
and fact." State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, ¶ 8. "When
considering a motion to suppress, the trial court assumes the role of fact finder and,
accordingly, is in the best position to resolve factual questions and evaluate witness
credibility." Columbus v. Body, 10th Dist. No. 11AP-609, 2012-Ohio-379, ¶ 9, citing
Burnside at ¶ 8, citing State v. Mills, 62 Ohio St. 3d 357, 366 (1992). "As such, an
appellate court must accept the trial court's factual findings if they are supported by
competent, credible evidence." Id., citing Burnside at ¶ 8, citing State v. Fanning, 1 Ohio
St.3d 19 (1982). "Accepting these facts as true, the reviewing court must then
independently determine, without deference to the trial court's conclusion, whether the
facts satisfy the applicable legal standard." Id., citing Burnside at ¶ 8, citing State v.
McNamara, 124 Ohio App. 3d 706 (4th Dist.1997).
{¶ 22} In determining the sufficiency of probable cause from an affidavit submitted
to support a search warrant, the issuing judge must look to the totality of the
circumstances set forth in the affidavit submitted and determine whether probable cause
exists that contraband or evidence of a crime would be found in a particular place. State
v. Garner, 74 Ohio St. 3d 49, 62 (1995). By contrast, a reviewing court should not conduct
a de novo review of a judge's determination of probable cause, but review the warrant to
ensure that the judge had a substantial basis for concluding that probable cause existed,
according "great deference to the judge's determination of the existence of probable
cause." Id. at 62.
{¶ 23} "Accordingly, the standard for probable cause demands only a
demonstration that a fair probability of criminal activity exists—not a prima facie
demonstration of criminal activity." State v. Ingold, 10th Dist. No. 07AP-648, 2008-
Ohio-2303, ¶ 19. "[T]he focus of the probable cause inquiry is the totality of the
circumstances presented in the affidavit, not each component standing alone."
(Emphasis sic.) State v. Robinson, 7th Dist. No. 10 CO 37, 2011-Ohio-6639, ¶ 23.
{¶ 24} Appellant first argues his case is analogous to United States v. Leake, 998
F.2d 1359, 1367 (6th Cir.1993), in which the court found a lack of probable cause to
search the home of the defendant. In Leake, officers received an anonymous tip from a
tradesman who claimed to have completed work in the defendant's home. The informer
No. 12AP-992 8
provided the defendant's address and stated he smelled and observed large bales of
marijuana. Based on this tip, officers conducted surveillance of the defendant's home.
Officers observed the home for two nights and noticed nothing out of the ordinary. The
officers applied for and were granted a warrant to search defendant's home. They
discovered hundreds of pounds of marijuana. The court granted defendant's motion to
suppress the seized marijuana, noting "[t]he supporting affidavit was too vague and
Detective Murphy's limited two-night surveillance was insufficient to verify important
elements of the anonymous caller's information." Id. at 1365.
{¶ 25} We find Leake distinguishable from this case. Leake consisted of a search
warrant based on a single anonymous tip where the only attempt at corroborating the tip
was verification by police that the defendant actually resided at the address given. There
was no other corroborating information obtained or presented by the prosecution.
Comparatively, Downard's investigation was based on two tips, only one of which was
anonymous. Both sources of information identified appellant as a drug trafficker.
Additionally, two trash pulls at the appellant's residence revealed illegal drug activity at
the home, specifically, marijuana stems and seeds, a marijuana roach, three empty blunt
tube wrappers, cigar blunt shake, and a letter establishing the trash came from appellant's
residence. Downard also gathered background information about appellant, including his
connection to events at Weirton Drive where law enforcement seized over ten pounds of
marijuana, and his criminal history, which includes trafficking in drugs.
{¶ 26} We find the Seventh District court's decision in Robinson instructive. In
Robinson, officers executed a search warrant based on information supplied by two
informants that the defendant was trafficking in drugs. One informant stated he obtained
drugs from the defendant who lived on the "east end." Another informant stated he
purchased drugs from the defendant over 20 times. Neither tip specified if the defendant
sold drugs out of his home or elsewhere. Officers conducted four trash pulls at the
defendant's residence, which resulted in the collection of plastic bags with the corners cut
off, a napkin containing marijuana residue, a hypodermic needle, a vial containing a small
amount of an illegal steroid, documents linking defendant and the trash to the residence,
marijuana stems and residue, and Western Union money transfer documents from
defendant. Like appellant, the defendant in Robinson moved to suppress the evidence
No. 12AP-992 9
arguing the information supplied by informants relating to drug activity was stale and
uncorroborated, even considering the trash pulls. In rejecting the defendant's position
and finding probable cause existed for the search warrant, the Seventh District stated,
"[c]ourts have held that even a single trash pull conducted just prior to the issuance of the
warrant corroborating anonymous tips and background information involving drug
activity will be sufficient to establish probable cause." (Emphasis added.) Id. at ¶ 21.
{¶ 27} Several other districts have come to similiar conclusions when analyzing
whether sufficient probable cause existed for a search warrant when a source of
information, alleged to be stale or unreliable, is corroborated by illegal drug activity
gleaned from a trash pull. State v. Quinn, 12th Dist. No. CA2011-06-116, 2012-Ohio-3123
(probable cause existed to search the home when trash pulls revealing illegal drug activity
corroborated anonymous tip that defendant possessed drugs and was selling drugs); State
v. McGorty, 5th Dist. No. 2007CA00257, 2008-Ohio-2643 (probable cause existed to
search the home when trash pulls revealing illegal drug activity corroborated anonymous
tip that defendant was cultivating drugs in his home); State v. Pustelnik, 8th Dist. No.
91779, 2009-Ohio-3458, ¶ 23-26 (trash pulls revealing illegal drug activity corroborated
anonymous tips of drug activity in the home).
{¶ 28} Appellant argues the anonymous tip was stale because it was eight months
old, and there was insufficient corroborating evidence to support a search warrant based
on drug trafficking. We disagree. Like Robinson, the search warrant at issue is based, in
part, on the corroborating information obtained by law enforcement from trash pulls and
other background information after receiving an anonymous tip. Here, the Reynoldsburg
Police Department received an anonymous tip on January 16, 2008 that appellant resides
at 220 Chatterly Lane and sells pounds of marijuana on the east side of Columbus and
Reynoldsburg. An Ohio Law Enforcement Gateway background check confirmed
appellant resides at 220 Chatterly Lane. Officers also discovered relevant background
information. Additionally, statements of Berry also connect appellant to the events at the
Weirton Drive address, discussed above, where officers seized over ten pounds of
marijuana from four different people, one of which was Berry.
{¶ 29} Berry told officers that appellant contacted him and asked him to pick up a
case of marijuana from Weirton Drive and that appellant has been selling marijuana for
No. 12AP-992 10
years and has been in trouble in the past for selling marijuana. Officers checked Berry's
phone and the last call was from "Tommy." Also included in the affidavit was the results
of two trash pulls conducted by Downard at appellant's 220 Chatterly Lane home.
Downard found evidence of marijuana stems and seeds, a marijuana roach, three empty
blunt tube wrappers, cigar blunt shake, and a letter of residence for 220 Chatterly Lane. A
field test of the suspected substance was positive for marijuana. Downard also observed
appellant exit and re-enter the home and a vehicle registered to appellant parked at the
home.
{¶ 30} Based on the above, we find the issuing judge had a substantial basis to
conclude probable cause existed to issue a search warrant.
{¶ 31} Because we have held that the search warrant at issue was based on
probable cause, we need not address appellant's assignment of error to the extent that it
challenges the search warrant was not relied upon by the officers in good faith.
{¶ 32} Accordingly, we find the trial court properly denied appellant's motion to
suppress, and we overrule appellant's first assignment of error
B. Second Assignment of Error
{¶ 33} In his second assignment of error, appellant contends both that the trial
court erred in denying his Crim.R. 29 motion for acquittal or, in the alternative, the jury's
verdict was against the manifest weight of the evidence.
{¶ 34} A Crim.R. 29(A) motion for acquittal tests the sufficiency of the evidence.
State v. Reddy, 10th Dist. No. 09AP-868, 2010-Ohio-3892, ¶ 12, citing State v. Knipp, 4th
Dist. No. 06CA641, 2006-Ohio-4704, ¶ 11. We thus review the trial court's denial of
appellant's motion for acquittal using the same standard applicable to a sufficiency of the
evidence review. Id., citing State v. Darrington, 10th Dist. No. 06AP-160, 2006-Ohio-
5042, ¶ 15.
{¶ 35} Sufficiency of the evidence is a legal standard that tests whether the
evidence is legally adequate to support a verdict. State v. Thompkins, 78 Ohio St. 3d 380,
386 (1997). Whether the evidence is legally sufficient to support a verdict is a question of
law, not fact. Id. In determining whether the evidence is legally sufficient to support a
conviction, " '[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
No. 12AP-992 11
elements of the crime proven beyond a reasonable doubt.' " State v. Robinson, 124 Ohio
St.3d 76, 2009-Ohio-5937, ¶ 34, quoting State v. Jenks, 61 Ohio St. 3d 259 (1991),
paragraph two of the syllabus. A verdict will not be disturbed unless, after viewing the
evidence in a light most favorable to the prosecution, it is apparent that reasonable minds
could not reach the conclusion reached by the trier of fact. State v. Treesh, 90 Ohio St. 3d
460, 484 (2001).
{¶ 36} In a sufficiency of the evidence inquiry, appellate courts do not assess
whether the prosecution's evidence is to be believed but, whether, if believed, the evidence
supports the conviction. State v. Yarbrough, 95 Ohio St. 3d 227, 2002-Ohio-2126, ¶ 79-
80 (evaluation of witness credibility not proper on review for sufficiency of evidence);
State v. Bankston, 10th Dist. No. 08AP-668, 2009-Ohio-754, ¶ 4 (noting that "in a
sufficiency of the evidence review, an appellate court does not engage in a determination
of witness credibility; rather, it essentially assumes the state's witnesses testified
truthfully and determines if that testimony satisfies each element of the crime").
{¶ 37} Appellant's sufficiency argument relies on State v. Coppernoll, 6th Dist. No.
WM-07-010, 2008-Ohio-1293. The crux of appellant's argument is that the
hypergeometric sampling method used in Coppernoll and in this case could not prove to a
reasonable degree of scientific certainty that a sufficient quantity of the substance seized
from appellant's home is marijuana.
{¶ 38} Appellant was convicted of possession of marijuana, a fifth-degree felony, as
defined in R.C. 2925.11, which states:
(A) No person shall knowingly obtain, possess, or use a
controlled substance * * * (C)(3)(c) [i]f the amount of the drug
involved equals or exceeds two hundred grams but is less than
one thousand grams.
{¶ 39} The focus of appellant's sufficiency argument is the quantity requirement of
R.C. 2925.11. Appellant cites Coppernoll for the assertion that the hypergeometric
sampling method used by Bufford results in a "95 percent confidence level that 90 percent
of the samples will be correctly identified." Id. at ¶ 6. Based on Coppernoll, appellant
argues he cannot be convicted of possessing more than 200 grams of marijuana. We
disagree.
No. 12AP-992 12
{¶ 40} We first point out that appellant cites testimony from Coppernoll and not a
standard or test relied upon by that court. Accordingly, we do not adopt appellant's
interpretation of Coppernoll. We have previously accepted the hypergeometric or random
sampling method of testing and determined "evidence of the random-sampling method is
sufficient as a matter of law to support a determination that the entire substance
recovered together and similarly packaged is the same controlled substance as that
tested." State v. Parsley, 10th Dist. No. 09AP-612, 2010-Ohio-1689, ¶ 39; State v.
Samatar, 152 Ohio App. 3d 311, 2003-Ohio-1639 (10th Dist.); State v. Smith, 10th Dist.
No. 97APA05-660 (Dec. 23, 1997).
{¶ 41} Here, based on the evidence presented, a reasonable jury could find all of
the marijuana collected at appellant's residence was in fact marijuana. According to
Bufford, she tested and weighed a substance seized at appellant's home for the presence of
marijuana. Bufford testified she used the "hypergeometric sampling" method which is a
commonly accepted practice. Bufford stated the substance in the seven tested bags was
homogenous to the substance in the two untested bags and ultimately testified to a
reasonable degree of scientific certainty that the nine bags at issue contained 212.0 grams
of marijuana or cannabis. Based on the evidence presented at trial, a jury could infer
appellant possessed 212.o grams of marijuana.
{¶ 42} Accordingly, viewing the evidence in a light most favorable to the state, we
conclude appellant's possession of marijuana conviction is supported by legally sufficient
evidence.
{¶ 43} Appellant also argues that his conviction for possession of marijuana is
against the manifest weight of the evidence. Appellant's sole argument is an improper
application of the hypergeometric sampling method.
{¶ 44} In determining whether a verdict is against the manifest weight of the
evidence, the appellate court acts as a "thirteenth juror." Under this standard of review,
the appellate court weighs the evidence in order to determine whether 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." Thompkins at 387. However, in engaging in
this weighing, the appellate court must bear in mind the factfinder's superior, first-hand
perspective in judging the demeanor and credibility of witnesses. See State v. DeHass, 10
No. 12AP-992 13
Ohio St. 2d 230 (1967), paragraph one of the syllabus. The power to reverse on manifest-
weight grounds should only be used in exceptional circumstances when "the evidence
weighs heavily against the conviction." Thompkins at 387.
{¶ 45} A defendant is not entitled to a reversal on manifest-weight grounds merely
because inconsistent evidence was offered at trial. State v. Campbell, 10th Dist. No.
07AP-1001, 2008-Ohio-4831. The trier of fact is in the best position to take into account
the inconsistencies in the evidence, as well as the demeanor and manner of the witnesses,
and to determine which witnesses are more credible. State v. Williams, 10th Dist. No.
02AP-35, 2002-Ohio-4503. Consequently, although appellate courts must sit as a
"thirteenth juror" when considering a manifest-weight argument, it must also give a great
deference to the trier of fact's determination on the credibility of the witnesses. State v.
Covington, 10th Dist. No. 02AP-245, 2002-Ohio-7037.
{¶ 46} Appellant argues only the contents of the bags actually tested for the
presence of marijuana can be used as evidence in this case. Appellee presented the
testimony of Bufford who, as stated above, concluded to a reasonable degree of scientific
certainty that the nine bags weighed 212.0 grams and contained marijuana or cannabis.
As trier of fact, the jury was free to believe or disbelieve all or any of the testimony
presented. State v. Matthews, 10th Dist. No. 11AP-532, 2012-Ohio-1154, ¶ 46, citing State
v. Jackson, 10th Dist. No. 01AP-973, 2002-Ohio-1257. Thus, the jury could have rejected
Bufford's testimony as untruthful or disregarded the application of the hypergeometric
sample method and found only 161.36 grams of marijuana (the weight of the bags actually
tested) was in appellant's possession. Because they did not, and instead convicted
appellant of possession of marijuana, is not a reason to hold the jury clearly lost its way.
{¶ 47} The jury is in the best position to determine the credibility of each witness
by taking into account inconsistencies, as well as witnesses' manner of testifying and
demeanor. The state presented competent and compelling evidence satisfying the
statutory requirements of possession of marijuana outlined above. We cannot conclude
this record presents a scenario where the jury clearly lost its way. Consequently,
appellant's conviction for possession of marijuana is not against the manifest weight of
the evidence.
{¶ 48} Accordingly, we overrule appellant's second assignment of error.
No. 12AP-992 14
IV. CONCLUSION
{¶ 49} Having overruled appellant's two assignments of error, the judgment of the
Franklin County Court of Common Pleas is hereby affirmed.
Judgment affirmed.
KLATT, P.J., and McCORMAC, J., concur.
McCORMAC, J., retired, formerly of the Tenth Appellate
District, assigned to active duty under authority of the Ohio
Constitution, Article IV, Section 6(C).
_____________________________