State v. Barnes

2021 Ohio 4527

Opinion

[Cite as State v. Barnes, 2021-Ohio-4527.]

COURT OF APPEALS STARK 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- : : ANTHONY D. BARNES : Case No. 2021CA00033 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2020 CR 2002

JUDGMENT: Affirmed

DATE OF JUDGMENT: December 22, 2021

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KYLE L. STONE TIMOTHY P. BOGNER PROSECUTING ATTORNEY 110 Cleveland Ave NW Suite 600 By: Timothy E. Yahner Canton, OH 44702 110 Central Plaza South - Suite 510 Stark County, Case No. 2021CA00033 2

Canton, OH 44702-1413 Wise, Earle, J.

{¶ 1} Defendant-Appellant Anthony D. Barnes appeals the March 26, 2021

judgment of conviction and sentence of the Stark County Court of Common Pleas.

Plaintiff-Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On October 13, 2020, Fred Elkins was stopped for a traffic violation in

Alliance Ohio and found to be in possession of fentanyl. Elkins, who was already on

community control for drug possession, agreed to work with the Alliance Police

Department as a confidential informant in exchange for the city's agreement to refrain

from charging him for possession of fentanyl.

{¶ 3} Elkins worked for Detectives Robert Rajcan and Stephen Minich and

engaged in three controlled buys from Appellant Barnes.

{¶ 4} The first buy took place on October 15, 2020. Elkins met the detectives at

the Alliance Police Department, was searched, provided with fresh clothing, a body-fitted

audio and video camera, and cash for the purchase. The detectives photocopied the

serial numbers on the cash before giving it to Elkins.

{¶ 5} Elkins then walked to Barnes' home with the detectives watching from two

different vantage points as well as watching and listening via Elkins' body camera and

microphone. Elkins entered the side door of Barnes' home, used the buy money to

purchase 1.21 grams of methamphetamine from Barnes and then walked back to the

Alliance Police Department. Detectives again searched Elkins, confirmed he was not in

possession of the buy money, and took possession of the methamphetamine he had

purchased from Barnes. Stark County, Case No. 2021CA00033 3

{¶ 6} The second buy took place on October 19, 2020. On this occasion Elkins

drove to the Alliance Police Department where he again met with the detectives. The

same procedures were followed. Elkins person and vehicle were searched, he was

provided with fresh clothing, a body audio and visual camera, and buy money.

{¶ 7} Elkins then drove to Barnes' home with the detectives condicting

surveillance from separate vehicles. On this occasion Elkins purchased 2.80 grams of a

heroin/fentanyl mixture from Barnes. Barnes' family was present on this occasion

including four children. Detectives could hear children playing and running around as

Elkins conducted the buy. Detective Rajcan later verified the ages of the children present

as between three and eight years old. Barnes conducted the sale differently due to the

presence of the children. Elkins placed the buy money on a countertop and Barnes

dropped a paper bindle containing the drugs on the floor for Elkins to pick up. Elkins then

returned to the Alliance Police Department, was searched, and surrendered the drugs.

{¶ 8} The final buy took place on October 20, 2020. Elkins again drove. The same

protocol was followed on that occasion as was for the first two buys. Elkins purchased

2.58 grams of methamphetamine from Barnes with money provided by the detectives,

returned to the Alliance Police Department, and surrendered the drugs.

{¶ 9} On each occasion the only time detectives lost sight of Elkins was when he

entered Barnes' home. However, also on each occasion, the audio heard by detectives

during the buy matched the video footage.

{¶ 10} The drugs from each buy were submitted to the Canton-Stark County Crime

Lab and confirmed to be methamphetamine and a heroin-fentanyl mix. Stark County, Case No. 2021CA00033 4

{¶ 11} On November 30, 2020, the Stark County Grand Jury returned an

indictment charging Barnes with one count of trafficking in heroin, one count of trafficking

in a fentanyl-related compound, and two counts of trafficking in drugs, specifically

methamphetamine.

{¶ 12} Barnes pled not guilty to the charges and elected to proceed to a jury trial

which began on March 2, 2021. The state presented evidence from Elkins, Detective

Rajcan, and two Canton-Stark County Crime Lab criminalists. Barnes presented no

evidence. After hearing the evidence and deliberating, the jury found Barnes guilty as

charged, He was subsequently sentenced to an aggregate prison term of thirty-six

months.

{¶ 13} Barnes timely filed an appeal and the matter is now before this court for

consideration. He raises one assignment of error as follows:

I

{¶ 14} "APPELLANT'S CONVICTION AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE AS TO EACH COUNT ON WHICH APPELLANT WAS CONVICTED

BECAUSE THE JURY CLEARLY LOST ITS WAY IN REVIEWING THE EVIDENCE, AND

APPELLANT'S CONVICTION IS A MANIFEST MISCARRIAGE OF JUSTICE."

{¶ 15} In his sole assignment of error, Appellant argues his convictions are against

the manifest weight of the evidence. We disagree.

{¶ 16} The sufficiency and manifest weight of the evidence are legally distinct

issues. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541. Sufficiency tests

whether the prosecution has met its burden of production at trial, whereas a manifest- Stark County, Case No. 2021CA00033 5

weight challenge questions whether the prosecution has met its burden of persuasion.

State v. Gulley, 9th Dist. No. 19600, at 3, 2000 WL 277908 (Mar. 15, 2000).

{¶ 17} On review for manifest weight, we are to 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 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, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st

Dist.1983). See also, State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997).

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.

{¶ 18} Barnes does not argue the state failed to meet its burden of production. In

other words, he does not argue the state failed to prove any one element of any of the

charged offenses. Instead, he argues the state failed to meet its burden of persuasion by

challenging the credibility of the evidence presented.

Credibility Challenges

{¶ 19} Barnes' overarching argument centers on Elkins as an incredible witness.

Barnes points to the fact that Elkins is an addict, was under the influence during the

controlled buys, that he had something to gain by engaging in controlled buys for the

Alliance Police Department, was on community control for drug possession, and that he

drove to the controlled buys without a valid driver's license.

{¶ 20} First, none of these facts were hidden from the jury, and the jury was “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.” State Stark County, Case No. 2021CA00033 6

v. Kurtz, 10th Dist. No. 17AP-382, 2018-Ohio-3942, 2018 WL 4677567, ¶ 18, quoting

Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984).

{¶ 21} Second, despite his lifestyle choices, Elkins' testimony was corroborated by

the audio and video recordings of each of the buys, still photos taken from video

recordings of each of the buys, the observations of the detectives during each buy, and

the fact that Elkins entered each buy with cash and no drugs on his person, and exited

each buy with no cash and drugs on his person. We therefore reject Barnes' arguments

as they pertain to Elkins' credibility.

{¶ 22} Next, Barnes also attacks the credibility of Detective Rajcan, going so far

as to characterize the detective as corrupt and indifferent to public safety for permitting

Elkins to drive. Again, however, the credibility of a witness is a matter for the trier of fact

to sort out. Further, whether or not Rajcan permitted Elkins to drive to the controlled buys

has no bearing on whether or not Barnes sold Elkins drugs on three occasions.

{¶ 23} Fourth, Barnes points to inconsistencies within the detective's testimony

regarding what time a search warrant was executed at Barnes' home. He also and faults

the detective for being unable to recall what his exact location or position was while

following Elkins during the October 15, 2020 buy, arguing this must mean the detective

was not following Elkins and therefore Elkins obtained the drugs from another source.

{¶ 24} Like credibility, however, inconsistencies in the testimony of a witness are

a matter for the trier of fact to resolve. Additionally what time the search warrant was

executed had no bearing on the charges at hand. Further, Detective Rajcan also testified

his inability to remember exactly what street he stood on while watching Elkins during the

first buy was because it had been four months prior, and he had performed many Stark County, Case No. 2021CA00033 7

controlled buys since that time. He further explained that both he and Detective Minich

performed surveillance of the confidential informant at the same time from different places

so that Minich could have visual contact with the CI at some points and Rajcan at others.

Transcript of trial (T.) 304-309. Thus either he or Minich could see Elkins at all times.

Rajcan testified he personally watched Elkins enter Barnes' home and exit Barnes' home.

T. 317.

{¶ 25} We conclude the jury did not lose its way in resolving any inconsistencies

in the testimony of Detective Rajcan, nor in weighing his credibility.

Children Present During the Second Buy

{¶ 26} Barnes also argues the jury's finding that children were present during the

second controlled buy is against the manifest weight of the evidence. He argues the only

evidence presented of a juvenile present was a still photo from the video of an older teen

or possibly young adult who answered the door when Elkins arrived. Detective Rajcan

testified this individual was 17 or 18 years old. T. 290.

{¶ 27} But that was not the only testimony regarding children present during the

second buy, nor was the older teen or young adult the reason Barnes was charged with

selling the heroin/fentanyl mixture in the presence of juveniles.

{¶ 28} First, Elkins testified Barnes' family members were present during the buy,

specifically children. Elkins further testified Barns conducted the second buy differently

due to the presence of those children in order to hide the transaction from the children.

T. 220-221. Second, Detective Rajcan testified four children could be heard and seen

running around inside the house during the buy. T. 286. At a different time he witnessed

children coming and going from the home and was therefore familiar with who generally Stark County, Case No. 2021CA00033 8

lived at the home. T. 302. Rajcan was able to confirm the ages of the juveniles as being

between three and eight years old when he executed a search warrant following the last

buy and spoke with the mother of the children. T. 287-289. Finally, the audio and video

of the buy was played for the jury so the jury could hear the voices of the children for

themselves.

{¶ 29} We conclude that even without the audio of the buy, the jury could have

reasonably concluded there were juveniles present during the second buy based upon

the testimony of both Elkins and Rajcan. While perhaps circumstantial, we note direct and

circumstantial evidence inherently possess the same probative value. State v. Jenks, 61

Ohio St.3d 259, 574 N.E.2d 492.

Forensic Evidence and Buy Money

{¶ 30} Finally, Barnes argues no DNA or fingerprints were found on the drugs, and

the buy money was never recovered. First, none of these things are required to support

Barnes' convictions. Second, following the final controlled buy, Barnes told Elkins he was

going to purchase more drugs and wanted Elkins to ride with him. T. 226. The jury could

reasonably conclude Barnes used the buy money to obtain more product. Stark County, Case No. 2021CA00033 9

Conclusion

{¶ 31} Upon review of the entire record we find no indication the jury lost its way in

weighing the testimony of Detective Rajcan or Elkins, nor in resolving inconsistencies.

Barnes was recorded, both visually and audibly selling drugs to confidential informant

Elkins on three different occasions. We further find the jury's conclusion that children were

present during the second buy is not against the manifest weight of the evidence. The

sole assignment of error is overruled.

{¶ 32} The judgment of conviction and sentence of the Stark County Court of

Common Pleas is affirmed.

By Wise, Earle, J.

Gwin, P.J. and

Wise, J., J. concur.

EEW/rw