State v. Foti

2024 Ohio 699

• Court: Ohio Court of Appeals
• Decided: February 26, 2024
• Docket: 2023-L-074
• Status: Published

Opinion

[Cite as State v. Foti, 2024-Ohio-699.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT LAKE COUNTY

STATE OF OHIO, CASE NO. 2023-L-074

Plaintiff-Appellee, Criminal Appeal from the - vs - Court of Common Pleas

JAMES JOSEPH FOTI, Trial Court No. 2020 CR 000255 Defendant-Appellant.

OPINION

Decided: February 26, 2024 Judgment: Affirmed

Charles E. Coulson, Lake County Prosecutor, and Kristi L. Winner, Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).

Adam Parker, The Goldberg Law Firm, LLC, 323 West Lakeside Avenue, Suite 450, Cleveland, OH 44113 (For Defendant-Appellant).

MARY JANE TRAPP, J.

{¶1} Appellant, James Joseph Foti (“Mr. Foti”), appeals from the judgment of the

Lake County Court of Common Pleas sentencing him to an aggregate prison term of 54

months following a jury trial in which he was found guilty of aggravated trafficking in drugs

and aggravated possession of drugs.

{¶2} Mr. Foti raises two assignments of error, contending his convictions were

not supported by sufficient evidence and are against the manifest weight of the evidence.

{¶3} After a careful review of the record and pertinent law, we find as follows: {¶4} (1) The state presented sufficient evidence, if believed, to prove beyond a

reasonable doubt that Mr. Foti committed the offenses of aggravated trafficking in drugs

{¶5} (2) Mr. Foti’s convictions are not against the manifest weight of the

evidence. Upon review of the record, the jury did not clearly lose its way and create a

manifest miscarriage of justice in assessing the confidential informant’s credibility.

{¶6} Thus, Mr. Foti’s assignments of error are without merit, and we affirm the

judgment of the Lake County Court of Common Pleas.

Substantive and Procedural History

{¶7} This case arose from three controlled drug buys in which Mr. Foti sold or

offered to sell methamphetamine to a confidential informant working for the Lake County

Narcotics Agency (“LCNA”). Each controlled buy occurred at a house in Willowick, Ohio,

where Mr. Foti resided. For each buy, Special Agent 92 equipped the informant with a

video/audio recording device and cash, transported him to the destination, thoroughly

searched him before and after the transaction, and conducted surveillance during the

transaction. Following the transaction, the informant gave Special Agent 92 the drugs

and returned any remaining cash and the recording device. The parties then went to the

agent’s office, where the informant completed “debriefing” paperwork.

{¶8} The first controlled buy occurred on January 17, 2020. The informant made

arrangements with Mr. Foti to purchase an ounce of methamphetamine for $200. Special

Agent 92 dropped the informant off in front of a supermarket adjacent to the house’s

backyard. The informant chose to cut through the supermarket to arrive at the house,

and Mr. Foti met him at the gate. They entered the back door, and Mr. Foti took him to

Case No. 2023-L-074 the upstairs bedroom. Mr. Foti explained that he did not currently have an ounce of

methamphetamine but would contact the informant after he obtained more. Mr. Foti gave

the informant a small baggie at no charge to “hold him over.” After exiting the house, the

informant again cut through the supermarket, at which time he purchased a soda, exited

the store, and met with Special Agent 92. The agent admonished the informant for cutting

through the supermarket. The parties waited a brief period for Mr. Foti to call back, but

Special Agent 92 ultimately decided to end the session.

{¶9} The second controlled buy occurred on January 21, 2020. The informant

made arrangements with Mr. Foti to purchase 11 grams of methamphetamine for $210.

Special Agent 92 dropped off the informant, and he walked to the back of the house. The

informant and Mr. Foti went to the upstairs bedroom and exchanged the drugs for money.

Mr. Foti obtained the drugs from a green Crown Royal bag in the area of the nightstand.

The informant negotiated a $10 discount based on the prior inconvenience. The

informant exited the house and met with Special Agent 92.

{¶10} The third controlled buy occurred on January 28, 2020. The informant made

arrangements with Mr. Foti to purchase an “8-ball” of methamphetamine for $80 to $100.

Special Agent 92 dropped off the informant, who walked to the back of the house. Mr.

Foti met the informant on the deck, where they exchanged the drugs for money. The

informant left the house and met with Special Agent 92.

{¶11} Following the controlled buys, LCNA obtained a search warrant for the

house, which was executed on January 31, 2020. Mr. Foti and a few other individuals

were present at the time. In the upstairs bedroom, LCNA collected a plastic container

containing three vials, a straw, and a plastic baggie with a small amount of suspected

Case No. 2023-L-074 methamphetamine. Special Agent 92 read Mr. Foti his Miranda rights and questioned

him. Mr. Foti told the agent that the upstairs bedroom was his living area and that the

items in his room belonged to him.

{¶12} The suspected drugs from the three controlled buys and the search of the

house were sent to the Lake County Crime Laboratory for analysis, and they tested

positive for methamphetamine.

{¶13} In May 2020, the Lake County Grand Jury indicted Mr. Foti on seven felony

counts. For the first controlled buy, Mr. Foti was charged with aggravated trafficking in

drugs in an amount less than the bulk amount, a fourth-degree felony, in violation of R.C.

2925.03(A)(1) (count 1), and aggravated possession of drugs in an amount less than the

bulk amount, a fifth-degree felony, in violation of R.C. 2925.11 (count 2). For the second

controlled buy, Mr. Foti was charged with aggravated trafficking in drugs in an amount

exceeding but less than five times the bulk amount, a third-degree felony, in violation of

R.C. 2925.03(A)(1) (count 3), and aggravated possession of drugs in an amount

exceeding but less than five times the bulk amount, a third-degree felony, in violation of

R.C. 2925.11 (count 4). For the third controlled buy, Mr. Foti was charged with

aggravated trafficking in drugs in an amount exceeding but less than five times the bulk

amount, a third-degree felony, in violation of R.C. 2925.03(A)(1) (count 5), and

aggravated possession of drugs in an amount exceeding but less than five times the bulk

amount, a third-degree felony, in violation of R.C. 2925.11 (count 6). For the drugs seized

from the house, Mr. Foti was charged with aggravated possession of drugs in an amount

less than the bulk amount, a fifth-degree felony, in violation of R.C. 2925.11 (count 7).

Case No. 2023-L-074 Each of the seven charges contained a forfeiture specification pursuant to R.C.

2941.1417 and 2981.04.

{¶14} Mr. Foti waived his right to be present at his arraignment and entered not

guilty pleas. Mr. Foti absconded and was subsequently arrested in October 2022. The

case was tried to a jury in June 2023.

{¶15} The state presented testimony from Lt. Kemp and Special Agent 92 from

LCNA and William Koubek from the Lake County Crime Lab. The state’s exhibits included

video/audio recordings and screenshots from the drug buys, photos from the search of

the house, “debriefing” paperwork, and the lab report. The confidential informant was

called as the trial court’s witness. Following the state’s case-in-chief, the defense moved

for acquittal pursuant to Crim.R. 29, which the trial court overruled. The defense rested

without presenting testimony or exhibits. The defense renewed its motion for acquittal,

which the trial court overruled.

{¶16} Following deliberations, the jury found Mr. Foti guilty of all charges. The

trial court noted it had received a presentence report regarding two other cases against

Mr. Foti and proceeded to sentencing without objection. The trial court merged count 2

into count 1; count 4 into count 3; and count 6 into count 5, and proceeded to sentence

Mr. Foti on counts 1, 3, 5, and 7. The trial court sentenced Mr. Foti to prison terms of

nine months on count 1; 24 months on count 3; 12 months on count 5; and nine months

on count 7. The trial court ordered Mr. Foti to serve his prison terms consecutively to

each other, for an aggregate prison term of 54 months, and consecutively to the prison

terms imposed in the other two cases. The trial court filed judgment entries memorializing

the jury’s verdicts and Mr. Foti’s sentences.

Case No. 2023-L-074 {¶17} Mr. Foti appealed and raises the following two assignments of error:

{¶18} “[1.] Defendant’s Convictions are Based on Insufficient Evidence[.]

{¶19} “[2.] Defendant’s Convictions are Against the Manifest Weight of the

Evidence[.]”

Sufficiency of the Evidence

{¶20} In his first assignment of error, Mr. Foti contends his convictions were not

supported by sufficient evidence.

{¶21} “‘“Sufficiency” is a term of art meaning that legal standard which is applied

to determine whether the case may go to the jury or whether the evidence is legally

sufficient to support the jury verdict as a matter of law.’” State v. Thompkins, 78 Ohio

St.3d 380, 386, 678 N.E.2d 541 (1997), quoting Black’s Law Dictionary 1433 (6th

Ed.1990). “In essence, sufficiency is a test of adequacy.” Id. “An appellate court’s

function when reviewing the sufficiency of the evidence to support a criminal conviction

is to examine the evidence admitted at trial to determine whether such evidence, if

believed, would convince the average mind of the defendant’s guilt beyond a reasonable

doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the

syllabus. “The 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.” Id. “[T]he claim of insufficient

evidence invokes a question of due process, the resolution of which does not allow for a

weighing of the evidence.” State v. Rose, 11th Dist. Lake No. 2014-L-086, 2015-Ohio-

2607, ¶ 33.

Case No. 2023-L-074 {¶22} Due to merger at sentencing, Mr. Foti was convicted of three counts of

aggravated trafficking in drugs involving the controlled buys (counts 1, 3, and 5) and one

count of aggravated possession of drugs involving the drugs seized during the search of

his residence (count 7).

Aggravated Trafficking

{¶23} In counts 1, 3, and 5, Mr. Foti was convicted of aggravated trafficking in

drugs in violation of R.C. 2925.03(A)(1), which provides, in relevant part, “No person shall

knowingly * * * [s]ell or offer to sell a controlled substance or a controlled substance

analog[.]” Mr. Foti concedes that the informant testified to purchasing methamphetamine

from him during the three controlled drug buys. He contends, however, that no one from

LCNA actually witnessed the exchange of money for drugs either in person or on camera.

{¶24} Mr. Foti is essentially arguing that the informant’s testimony required

corroboration. We recently rejected this argument in State v. Little, 11th Dist. Portage

Nos. 2023-P-0011 and 2023-P-0012, 2023-Ohio-4098, ¶ 55. We explained that whether

a confidential informant’s testimony is believable involves his or her credibility and the

weight of the evidence, not its sufficiency. Id. “On review for sufficiency, courts are to

assess not whether the state’s evidence is to be believed, but whether, if believed, the

evidence against a defendant would support a conviction.” (Emphasis added.)

Thompkins, supra, at 390 (Cook, J., concurring). Therefore, the informant’s testimony

did not require corroboration.

{¶25} Further, the informant’s testimony was not the sole evidence implicating Mr.

Foti in the controlled buys. Special Agent 92 testified that he was familiar with Mr. Foti’s

voice and identified it on the controlled-buy recordings. In addition, the video from the

Case No. 2023-L-074 second controlled buy depicted Mr. Foti’s image during the transaction. Accordingly, the

evidence, when viewed in a light most favorable to the state, was sufficient to prove Mr.

Foti sold or offered to sell methamphetamine to the informant.

{¶26} Mr. Foti’s remaining arguments involve the informant’s credibility and/or the

weight of other evidence and will be addressed in his second assignment of error.

Aggravated Possession

{¶27} In count 7, Mr. Foti was convicted of aggravated possession of drugs in

violation of R.C. 2925.11, which provides, in relevant part, “No person shall knowingly

obtain, possess, or use a controlled substance or a controlled substance analog[.]” R.C.

2925.11(A). Mr. Foti argues that no witness testified that he ever possessed the drugs

seized during the search of the house. Mr. Foti is essentially arguing that the state was

required to prove actual possession by direct evidence, which is legally incorrect.

{¶28} “‘Possess’ or ‘possession’ means having control over a thing or substance,

but may not be inferred solely from mere access to the thing or substance through

ownership or occupation of the premises upon which the thing or substance is found.”

R.C. 2925.01(K). Possession of drugs can be actual or constructive. State v. Adams,

11th Dist. Ashtabula No. 2012-A-0025, 2013-Ohio-1603, ¶ 35. “A person has ‘actual

possession’ of an item if the item is ‘within his immediate physical possession.’” State v.

Waters, 11th Dist. Trumbull No. 2008-T-0121, 2009-Ohio-6151, ¶ 19, quoting State v.

Fugate, 4th Dist. Washington No. 97 CA 2546, 1998 WL 729221, *7 (Oct. 2, 1998).

“Constructive possession exists when an individual knowingly exercises dominion and

control over an object, even though that object may not be within his immediate physical

possession.” State v. Hankerson, 70 Ohio St.2d 87, 434 N.E.2d 1362 (1982), syllabus.

Case No. 2023-L-074 To prove constructive possession, “[i]t must also be shown that the person was conscious

of the presence of the object.” Id. at 91.

{¶29} Constructive possession may be supported solely by circumstantial

evidence. State v. Fogle, 11th Dist. Portage No. 2008-P-0009, 2009-Ohio-1005, ¶ 30.

Circumstantial evidence is the proof of facts by direct evidence from which a factfinder

may reasonably infer the existence of other facts. State v. Pistillo, 11th Dist. Lake No.

2003-L-183, 2004-Ohio-6333, ¶ 20. “Circumstantial evidence and direct evidence

inherently possess the same probative value,” and “[i]n some instances certain facts can

only be established by circumstantial evidence.” Jenks, supra, at 502. For instance, this

court has recognized that “[a]bsent an admission by a defendant or direct testimony by

another with knowledge, the defendant’s knowledge of the presence of illegal drugs

where the crime charged is possession of drugs often must be proven via circumstantial

evidence * * *.” State v. Hudson, 2018-Ohio-133, 104 N.E.3d 25, ¶ 48 (11th Dist.).

{¶30} There is no dispute that Mr. Foti lived in the upstairs bedroom of the house

and was present on the day of the search. According to Special Agent 92, Mr. Foti told

him that the items in his bedroom belonged to him. In addition, the first and second

controlled buys took place in Mr. Foti’s bedroom. In the video for the second controlled

buy, Mr. Foti can be observed retrieving items from his nightstand, which the informant

testified was methamphetamine. This evidence, when viewed in a light most favorable to

the state, supports an inference that Mr. Foti possessed the items discovered in his

bedroom, including the methamphetamine. See Hudson at ¶ 54 (sufficient evidence of

possession found where appellant had personal items in a locked bedroom containing

the drugs).

Case No. 2023-L-074 {¶31} Mr. Foti’s first assignment of error is without merit.

Manifest Weight of the Evidence

{¶32} In his second assignment of error, Mr. Foti contends his convictions are

against the manifest weight of the evidence.

{¶33} “[W]eight of the evidence addresses the evidence’s effect of inducing

belief.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25.

“In other words, a reviewing court asks whose evidence is more persuasive—the state’s

or the defendant’s?” Id. “‘The court, reviewing the entire record, weighs the evidence

and all reasonable inferences, considers the credibility of witnesses and determines

whether in resolving conflicts in the evidence, the jury [or 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, supra, at 387, quoting State v. Martin, 20 Ohio

App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). “When a court of appeals reverses a

judgment of a trial court on the basis that the verdict is against the weight of the evidence,

the appellate court sits as a ‘thirteenth juror’ and disagrees with the factfinder’s resolution

of the conflicting testimony.” Id., quoting Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct.

2211, 72 L.Ed.2d 652 (1982).

{¶34} “‘[I]n determining whether the judgment below is manifestly against the

weight of the evidence, every reasonable intendment and every reasonable presumption

must be made in favor of the judgment and the finding of facts. * * * If the evidence is

susceptible of more than one construction, the reviewing court is bound to give it that

interpretation which is consistent with the verdict and judgment, most favorable to

sustaining the verdict and judgment.’” Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d

Case No. 2023-L-074 77, 80, 461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate

Review, Section 603, at 191-192 (1978). “‘The discretionary power to grant a new trial

should be exercised only in the exceptional case in which the evidence weighs heavily

against the conviction.’” Thompkins at 387, quoting Martin at 175.

{¶35} Mr. Foti contends that his convictions are against the manifest weight of the

evidence because no one in law enforcement witnessed drugs or money changing hands,

and several other people were present in the house during each controlled buy, any of

whom could have been the source of the drugs. He further contends that the informant

had an extensive criminal history and pending charges and did not follow proper

procedure during the first controlled buy.1

{¶36} Mr. Foti’s arguments assume that the informant was not credible when he

implicated Mr. Foti in the controlled drug buys. However, “[t]he choice between credible

witnesses and their conflicting testimony rests solely with the finder of fact[,] and an

appellate court may not substitute its own judgment for that of the finder of fact.” State v.

Awan, 22 Ohio St.3d 120, 123, 489 N.E.2d 277 (1986). “A fact finder is free to believe

all, some, or none of the testimony of each witness appearing before it.” State v. Fetty,

11th Dist. Portage No. 2011-P-0091, 2012-Ohio-6127, ¶ 58.

{¶37} The record indicates that the informant was a challenging witness. On one

hand, the informant had an extensive criminal background, was an admitted drug user

and trafficker, and had made prior statements to Mr. Foti’s sister indicating he did not buy

drugs from Mr. Foti. On the other hand, the informant did not benefit from cooperating

1. Mr. Foti’s manifest weight arguments involve only his aggravated trafficking convictions (i.e., counts 1, 3, and 5). 11

Case No. 2023-L-074 with LCNA because he did not fulfill his obligations; he made it clear at trial that he did

not want to testify; and his testimony implicating Mr. Foti was fully consistent with his prior

statements to LCNA and his debriefing paperwork. The jury was free to consider these

competing factors in assessing the informant’s credibility. Upon review of the record, we

cannot say the jury clearly lost its way and created a manifest miscarriage of justice.

Accordingly, Mr. Foti’s convictions are not against the manifest weight of the evidence.

{¶38} Mr. Foti’s second assignment of error is without merit.

{¶39} For the foregoing reasons, the judgment of the Lake County Court of

Common Pleas is affirmed.

JOHN J. EKLUND, J.,

ROBERT J. PATTON, J.,

concur.

Case No. 2023-L-074