[Cite as State v. Byrd, 2019-Ohio-1667.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2018-CA-22 : v. : Trial Court Case No. 2018-CR-73 : MICHAEL W. BYRD : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :
...........
OPINION
Rendered on the 3rd day of May, 2019.
NATHANIEL R. LUKEN, Atty. Reg. No. 0087864, Assistant Prosecuting Attorney, Greene County Prosecutor’s Office, 61 Greene Street, Xenia, Ohio 45385 Attorney for Plaintiff-Appellee
SAMANTHA L. BERKHOFER, Atty. Reg. No. 0087370, 202 North Limestone Street, Suite 250, Springfield, Ohio 45502 Attorney for Defendant-Appellant
.............
TUCKER, J. -2-
{¶ 1} Defendant-appellant Michael Byrd appeals from the trial court’s judgment
convicting him of aggravated drug trafficking and aggravated possession of drugs. He
contends that the State did not present evidence sufficient to sustain the conviction for
aggravated possession of drugs. We conclude there is evidence in this record upon
which a reasonable juror could determine that the essential elements of the offense were
established by the State. Accordingly, the judgment of the trial court is affirmed.
I. Facts and Procedural History
{¶ 2} Following complaints concerning a man selling drugs in Xenia, the Agencies
for Combined Enforcement Task Force (hereinafter “ACE”) began conducting
surveillance of an area near the Xenia bike path and a McDonald’s restaurant. After
observing Byrd on the bike path, members of ACE decided to use an undercover detective
to attempt drug purchases from Byrd.
{¶ 3} On January 3, 2018, an undercover officer approached Byrd on the bike path.
The officer and Byrd engaged in a conversation following which they both entered a
nearby Wendy’s restaurant. While inside the restaurant, the officer gave Byrd $20 in
exchange for which Byrd handed the officer a gum wrapper. The wrapper was
determined to contain methamphetamine.
{¶ 4} On January 4, 2018, the same undercover officer again approached Byrd
near the bike path. The officer indicated that he wanted additional methamphetamine.
Again, the two went into Wendy’s. Thereafter, the officer gave Byrd $40 and Byrd gave
the officer a substance wrapped in a piece of toilet paper. The substance did not contain -3-
any controlled substance.
{¶ 5} Byrd was indicted on the following offenses: Counts I and III, aggravated
trafficking in drugs in violation of R.C. 2925.03(A)(1); and Count II aggravated possession
of drugs in violation of R.C. 2925.11(A). Following a jury trial, Byrd was convicted on all
counts. A sentencing hearing was conducted on May 23, 2018. At that time, the trial
court merged Counts I and II for purposes of sentencing and the State elected to proceed
on Count I. The court imposed prison sentences of 17 months on Count I and 17 months
on Count III. The court ordered the sentences to be served consecutively, for an
aggregate sentence of 34 months.
{¶ 6} Byrd appeals.
II. Analysis
{¶ 7} Byrd’s sole assignment of error states as follows:
WHETHER THERE WAS SUFFICIENT EVIDENCE FOR THE JURY TO
FIND MR. BYRD GUILTY OF AGGRAVATED POSSESSION OF DRUGS
IN VIOLATION OF R.C. 2925.11?
{¶ 8} Byrd contends that the State did not present evidence sufficient to sustain
the conviction for aggravated possession. In support, he argues that the record
demonstrates that no controlled substances were in the toilet paper given to the
undercover officer on January 4, 2018. In his assignment of error, he also employs
language indicating that he contests whether the conviction was supported by the weight
of the evidence.
{¶ 9} A sufficiency of the evidence analysis focuses upon whether the prosecution -4-
presented adequate evidence, viewing such evidence in the light most favorable to the
prosecution, to sustain the verdict. State v. Radford, 2d Dist. Clark No. 2016-CA-80,
2017-Ohio-8189, ¶ 14. The prosecution has presented sufficient evidence when “any
rational trier of fact could have found the essential elements of the crime proven beyond
a reasonable doubt.” Id., quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d (1991),
paragraph two of the syllabus.
{¶ 10} A manifest weight analysis, in contrast, requires an appellate court to review
the record, weigh the evidence and any reasonable inferences allowed by the evidence,
consider witness credibility, and determine whether the trier of fact, in resolving any
evidentiary conflicts, “clearly lost its way and created such a miscarriage of justice that
the conviction must be reversed and a new trial ordered.” Radford at ¶ 15. This
consideration of the evidence must be exercised with caution so that a new trial will only
be granted “in the exceptional case in which the evidence weighs heavily against the
conviction.” Id., quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1st
Dist.1983). Though different legal concepts are involved, if it is concluded that a verdict
is supported by the manifest weight of the evidence, the evidence, by necessity, is legally
sufficient. Id. at ¶ 16.
{¶ 11} Byrd was indicted on two counts of aggravated trafficking in drugs, which is
proscribed by R.C. 2925.03. That statute states, in pertinent part, that “[n]o person shall
knowingly * * * [s]ell or offer to sell a controlled substance or a controlled substance
analog.” R.C. 2925.03(A)(1). He was also indicted on one count of aggravated
possession of drugs in violation of R.C. 2925.11(A), which states that “[n]o person shall
knowingly obtain, possess, or use a controlled substance or a controlled substance -5-
analog.” “A person acts knowingly, regardless of purpose, when the person is aware
that the person's conduct will probably cause a certain result or will probably be of a
certain nature. A person has knowledge of circumstances when the person is aware that
such circumstances probably exist.” R.C. 2901.22(B).
{¶ 12} We first note that the indictment clearly states that Counts I (trafficking) and
II (possession) concern the drug transaction that occurred on January 3, 2018, while
Count III (trafficking) concerns the transaction of January 4, 2018. Thus, the only charge
filed in connection with the January 4 transaction, in which no actual drugs were
exchanged, was aggravated trafficking. There was no charge for possession of drugs in
connection with the January 4 transaction. Therefore, it appears that Byrd
misapprehends the facts of the case and that his appeal has no merit. However, we will
nonetheless review the convictions from both a sufficiency and a manifest weight
perspective.
{¶ 13} The record contains testimony of several members of the ACE team
concerning the controlled buys by the undercover officer. This testimony demonstrated
that the officer met with Byrd on two occasions, paid him money, and in return received,
respectively, a gum wrapper containing a substance later determined to be
methamphetamine and a piece of toilet paper with a substance that was determined not
to contain a controlled substance.
{¶ 14} The undercover officer also testified. He testified that, on January 3, 2018,
he was assigned to work with the ACE task force.
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[Cite as State v. Byrd, 2019-Ohio-1667.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2018-CA-22 : v. : Trial Court Case No. 2018-CR-73 : MICHAEL W. BYRD : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :
...........
OPINION
Rendered on the 3rd day of May, 2019.
NATHANIEL R. LUKEN, Atty. Reg. No. 0087864, Assistant Prosecuting Attorney, Greene County Prosecutor’s Office, 61 Greene Street, Xenia, Ohio 45385 Attorney for Plaintiff-Appellee
SAMANTHA L. BERKHOFER, Atty. Reg. No. 0087370, 202 North Limestone Street, Suite 250, Springfield, Ohio 45502 Attorney for Defendant-Appellant
.............
TUCKER, J. -2-
{¶ 1} Defendant-appellant Michael Byrd appeals from the trial court’s judgment
convicting him of aggravated drug trafficking and aggravated possession of drugs. He
contends that the State did not present evidence sufficient to sustain the conviction for
aggravated possession of drugs. We conclude there is evidence in this record upon
which a reasonable juror could determine that the essential elements of the offense were
established by the State. Accordingly, the judgment of the trial court is affirmed.
I. Facts and Procedural History
{¶ 2} Following complaints concerning a man selling drugs in Xenia, the Agencies
for Combined Enforcement Task Force (hereinafter “ACE”) began conducting
surveillance of an area near the Xenia bike path and a McDonald’s restaurant. After
observing Byrd on the bike path, members of ACE decided to use an undercover detective
to attempt drug purchases from Byrd.
{¶ 3} On January 3, 2018, an undercover officer approached Byrd on the bike path.
The officer and Byrd engaged in a conversation following which they both entered a
nearby Wendy’s restaurant. While inside the restaurant, the officer gave Byrd $20 in
exchange for which Byrd handed the officer a gum wrapper. The wrapper was
determined to contain methamphetamine.
{¶ 4} On January 4, 2018, the same undercover officer again approached Byrd
near the bike path. The officer indicated that he wanted additional methamphetamine.
Again, the two went into Wendy’s. Thereafter, the officer gave Byrd $40 and Byrd gave
the officer a substance wrapped in a piece of toilet paper. The substance did not contain -3-
any controlled substance.
{¶ 5} Byrd was indicted on the following offenses: Counts I and III, aggravated
trafficking in drugs in violation of R.C. 2925.03(A)(1); and Count II aggravated possession
of drugs in violation of R.C. 2925.11(A). Following a jury trial, Byrd was convicted on all
counts. A sentencing hearing was conducted on May 23, 2018. At that time, the trial
court merged Counts I and II for purposes of sentencing and the State elected to proceed
on Count I. The court imposed prison sentences of 17 months on Count I and 17 months
on Count III. The court ordered the sentences to be served consecutively, for an
aggregate sentence of 34 months.
{¶ 6} Byrd appeals.
II. Analysis
{¶ 7} Byrd’s sole assignment of error states as follows:
WHETHER THERE WAS SUFFICIENT EVIDENCE FOR THE JURY TO
FIND MR. BYRD GUILTY OF AGGRAVATED POSSESSION OF DRUGS
IN VIOLATION OF R.C. 2925.11?
{¶ 8} Byrd contends that the State did not present evidence sufficient to sustain
the conviction for aggravated possession. In support, he argues that the record
demonstrates that no controlled substances were in the toilet paper given to the
undercover officer on January 4, 2018. In his assignment of error, he also employs
language indicating that he contests whether the conviction was supported by the weight
of the evidence.
{¶ 9} A sufficiency of the evidence analysis focuses upon whether the prosecution -4-
presented adequate evidence, viewing such evidence in the light most favorable to the
prosecution, to sustain the verdict. State v. Radford, 2d Dist. Clark No. 2016-CA-80,
2017-Ohio-8189, ¶ 14. The prosecution has presented sufficient evidence when “any
rational trier of fact could have found the essential elements of the crime proven beyond
a reasonable doubt.” Id., quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d (1991),
paragraph two of the syllabus.
{¶ 10} A manifest weight analysis, in contrast, requires an appellate court to review
the record, weigh the evidence and any reasonable inferences allowed by the evidence,
consider witness credibility, and determine whether the trier of fact, in resolving any
evidentiary conflicts, “clearly lost its way and created such a miscarriage of justice that
the conviction must be reversed and a new trial ordered.” Radford at ¶ 15. This
consideration of the evidence must be exercised with caution so that a new trial will only
be granted “in the exceptional case in which the evidence weighs heavily against the
conviction.” Id., quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1st
Dist.1983). Though different legal concepts are involved, if it is concluded that a verdict
is supported by the manifest weight of the evidence, the evidence, by necessity, is legally
sufficient. Id. at ¶ 16.
{¶ 11} Byrd was indicted on two counts of aggravated trafficking in drugs, which is
proscribed by R.C. 2925.03. That statute states, in pertinent part, that “[n]o person shall
knowingly * * * [s]ell or offer to sell a controlled substance or a controlled substance
analog.” R.C. 2925.03(A)(1). He was also indicted on one count of aggravated
possession of drugs in violation of R.C. 2925.11(A), which states that “[n]o person shall
knowingly obtain, possess, or use a controlled substance or a controlled substance -5-
analog.” “A person acts knowingly, regardless of purpose, when the person is aware
that the person's conduct will probably cause a certain result or will probably be of a
certain nature. A person has knowledge of circumstances when the person is aware that
such circumstances probably exist.” R.C. 2901.22(B).
{¶ 12} We first note that the indictment clearly states that Counts I (trafficking) and
II (possession) concern the drug transaction that occurred on January 3, 2018, while
Count III (trafficking) concerns the transaction of January 4, 2018. Thus, the only charge
filed in connection with the January 4 transaction, in which no actual drugs were
exchanged, was aggravated trafficking. There was no charge for possession of drugs in
connection with the January 4 transaction. Therefore, it appears that Byrd
misapprehends the facts of the case and that his appeal has no merit. However, we will
nonetheless review the convictions from both a sufficiency and a manifest weight
perspective.
{¶ 13} The record contains testimony of several members of the ACE team
concerning the controlled buys by the undercover officer. This testimony demonstrated
that the officer met with Byrd on two occasions, paid him money, and in return received,
respectively, a gum wrapper containing a substance later determined to be
methamphetamine and a piece of toilet paper with a substance that was determined not
to contain a controlled substance.
{¶ 14} The undercover officer also testified. He testified that, on January 3, 2018,
he was assigned to work with the ACE task force. On that date, he was transported to
the Xenia bike path between Wendy’s and McDonald’s. The undercover officer was
wearing old clothing and was walking with a cane. He testified that he approached Byrd -6-
and engaged in casual conversation; Byrd asked whether the undercover officer was a
police officer. Eventually, the undercover officer informed Byrd that he had hurt his back
and was looking for some ice.1 Byrd told the officer to accompany him to the Wendy’s.
Once in Wendy’s, the undercover officer sat at a table while Byrd purchased coffee.
When Byrd came to the table, he gave the coffee and a foil gum wrapper to the officer,
who then gave Byrd $20, and Byrd left. The undercover officer then left and turned the
wrapper over to other members of the investigation.
{¶ 15} The undercover officer testified that, on the next day, January 4, he again
approached Byrd on the bike path; he told Byrd that the ice he received the day before
was good and that he wanted more. Byrd asked the undercover officer how much money
he had, and the officer replied that he had $40. Byrd again directed the officer to go into
Wendy’s. The two went into Wendy’s, sat at the same table as the previous day, and
Byrd again purchased coffee. While at the table, the undercover officer handed Byrd the
money, and Byrd stated that he was going into the restroom in order to “break a piece
off.” Tr. p. 131. When Byrd returned to the table, he placed a substance wrapped in
toilet paper into the undercover officer’s glove, which was sitting on the table. Byrd left
the restaurant first. After leaving the restaurant, the undercover officer turned the toilet
paper over to other investigators.
{¶ 16} Jennifer Watson, a forensic chemist with the Miami Valley Regional Crime
Laboratory, testified that she conducted testing on both substances given to the
undercover officer. According to Watson, the substance in the gum wrapper was
methamphetamine. However, Watson testified that the substance in the toilet paper was
1 According to the record, “ice” is a slang term for methamphetamine. -7-
not a controlled substance.
{¶ 17} Based upon this evidence, we conclude that the State presented evidence
sufficient to support the convictions for Counts I and II regarding the drug transactions
conducted on January 3, as well as for Count III, regarding the trafficking transaction
conducted on January 4. Additionally, we cannot say the jury lost its way in convicting
Byrd. The record supports a finding that on January 3 Byrd possessed and sold
methamphetamine to the undercover officer. The record also demonstrates that on
January 4, the undercover officer asked Byrd for additional methamphetamine, and that
Byrd sold him a substance after indicating that he was going to break off a piece of
methamphetamine. The jury could have reasonably inferred, based upon the previous
transaction and Byrd’s actions on January 4, that he sold what he claimed to be
methamphetamine. Further, the fact that Byrd sold the undercover officer something
other than a controlled substance during the January 4 encounter does not affect his
conviction for aggravated trafficking. This court has previously stated that “if the seller,
in offering his product for sale, purports it to be a controlled substance, then he or she
has knowingly offered for sale a controlled substance in spite of the fact that the seller
knows the product is counterfeit or fake.” State v. Chatman, 2d Dist. Montgomery No.
17481, 1999 WL 961024 (July 9, 1999), citing State v. Scott, 69 Ohio St.2d 439, 440-441,
432 N.E.2d 798 (1982) and State v. Patterson, 69 Ohio St.3d 445, 447, 432 N.E.2d 802
(1982).
{¶ 18} Finally, we again note that Byrd was not charged with, or convicted of
possession of methamphetamine with regard to the January 4 transaction during which
no controlled substance was transferred. Therefore, his argument that he cannot be -8-
guilty of aggravated possession of drugs for that transaction lacks merit.
{¶ 19} Accordingly, the assignment of error is overruled.
III. Conclusion
{¶ 20} Byrd’s sole assignment of error being overruled, the judgment of the trial
court is affirmed.
WELBAUM, P.J. and FROELICH, J., concur.
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Nathaniel R. Luken Samantha L. Berkhofer Hon. Michael A. Buckwalter