State v. Plant

2016 Ohio 1208

• Court: Ohio Court of Appeals
• Decided: March 22, 2016
• Docket: 2015 AP 07 0033
• Status: Published

Opinion

[Cite as State v. Plant, 2016-Ohio-1208.]

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. Sheila G. Farmer, P.J. Plaintiff-Appellee : Hon. W. Scott Gwin, J. : Hon. Patricia A. Delaney, J. -vs- : : CHARLES A. PLANTS : Case No. 2015 AP 07 0033 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2011 CR 02 0057

JUDGMENT: Affirmed

DATE OF JUDGMENT: March 22, 2016

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

MICHAEL J. ERNEST DONOVAN HILL 125 East High Avenue 116 Cleveland Avneue North New Philadelphia, OH 44663 Suite 808 Canton, OH 44702 Tuscarawas County, Case No. 2015 AP 07 0033 2

Farmer, P.J.

{¶1} On February 22, 2011, the Tuscarawas County Grand Jury indicted

appellant, Charles Plants, on one count of illegal conveyance of drugs onto the grounds

of a detention facility or institution in violation of R.C. 2921.36(A)(2). Said charge arose

after appellant was arrested on an outstanding warrant and taken to the Newcomerstown

City Jail whereupon marihuana was found in his right front pants pocket.

{¶2} Following a finding of incompetency and restoration to competency, a jury

trial commenced on April 16, 2015. The jury found appellant guilty as charged. By

judgment entry filed June 18, 2015, the trial court sentenced appellant to one year of

supervised community control.

{¶3} Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

I

{¶4} "THE APPELLANT'S CONVICTIONS WERE AGAINST THE MANIFEST

WEIGHT AND SUFFICIENCY OF THE EVIDENCE."

{¶5} Appellant claims his conviction was against the sufficiency and manifest

weight of the evidence as the state failed to present evidence as to each element of the

offense, the testimony was contradictory, and the witnesses offered a "too-convenient

account of events." We disagree.

{¶6} On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction. State

v. Jenks, 61 Ohio St.3d 259 (1991). "The relevant inquiry is whether, after viewing the Tuscarawas County, Case No. 2015 AP 07 0033 3

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." Jenks at

paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307 (1979). On

review for manifest weight, a reviewing court is 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 (1st Dist.1983). See also,

State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. 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. We note the weight to be given to the evidence and the

credibility of the witnesses are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d

182 (1990). The trier of fact "has the best opportunity to view the demeanor, attitude, and

credibility of each witness, something that does not translate well on the written page."

Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260.

{¶7} Appellant was convicted of illegal conveyance of drugs onto the grounds of

a detention facility or institution in violation of R.C. 2921.36(A)(2) which states:

(A) No person shall knowingly convey, or attempt to convey, onto the

grounds of a detention facility or of an institution, office building, or other

place that is under the control of the department of mental health and

addiction services, the department of developmental disabilities, the Tuscarawas County, Case No. 2015 AP 07 0033 4

department of youth services, or the department of rehabilitation and

correction any of the following items:

(2) Any drug of abuse, as defined in section 3719.011 of the Revised

Code.

{¶8} Under R.C. 3719.011, "drug of abuse" "means any controlled substance as

defined in section 3719.01 of the Revised Code, any harmful intoxicant as defined in

section 2925.01 of the Revised Code, and any dangerous drug as defined in section

4729.01 of the Revised Code. R.C. 3719.01(O) states the following:

"Marihuana" means all parts of a plant of the genus cannabis,

whether growing or not; the seeds of a plant of that type; the resin extracted

from a part of a plant of that type; and every compound, manufacture, salt,

derivative, mixture, or preparation of a plant of that type or of its seeds or

resin. "Marihuana" does not include the mature stalks of the plant, fiber

produced from the stalks, oils or cake made from the seeds of the plant, or

any other compound, manufacture, salt, derivative, mixture, or preparation

of the mature stalks, except the resin extracted from the mature stalks, fiber,

oil or cake, or the sterilized seed of the plant that is incapable of germination.

{¶9} The drug of abuse claimed to have been conveyed was .7 grams of

marihuana. T. at 128. From our review of the testimony, we find sufficient credible Tuscarawas County, Case No. 2015 AP 07 0033 5

testimony from Officer Matt Jenkins, Officer Bryan Eubanks, and Sergeant John Gray to

support the conviction.

{¶10} Appellant was arrested on Christmas Day on an outstanding warrant. T. at

99-101, 116. When Officer Jenkins placed appellant into handcuffs, he detected "the

odor of fresh unburnt marijuana coming from somewhere on his person." T. at 102. Prior

to transporting appellant to the Newcomerstown City Jail, Officer Jenkins asked appellant

if he had "anything illegal on him, any drugs" to which appellant responded "no." Id.

{¶11} Once at the jail, appellant was required to change into a jail uniform and a

"cellophane baggy" with what appeared to be marihuana was discovered in his right front

pants pocket, along with rolling papers. T. at 104-105. The actual marihuana and a

photograph of the marihuana were marked as State's Exhibits A and B-1. T. at 105, 129.

Although the marihuana was not a great amount, it was a "consumable amount," a "dime

bag." T. at 106.

{¶12} Officer Eubanks testified he observed Officer Jenkins and appellant at the

jail during the search and witnessed "Officer Jenkins find a small cellophane bag of

marijuana and then in his coat pocket I observed him find a yellow pack of Zig-Zag rolling

papers." T. at 117.

{¶13} Sergeant Gray was called to test the found substance, "a green leafy

substance that was crumbled." T. at 124, 132. He testified the substance was inside a

sandwich bag and tested positive for Cannabis/marihuana. T. at 125, 128, 132; State's

Exhibit C. Tuscarawas County, Case No. 2015 AP 07 0033 6

{¶14} Appellant testified Officer Jenkins "planted" the marihuana in his pocket. T.

at 140-143. Appellant also stated Officer Eubanks was not present during the search at

the jail. T. at 144-145.

{¶15} Based upon the testimony and evidence presented, we find sufficient

evidence, if believed, to substantiate the jury's finding of guilty beyond a reasonable

doubt. We find no manifest miscarriage of justice.

{¶16} The sole assignment of error is denied.

{¶17} The judgment of the Court of Common Pleas of Tuscarawas County, Ohio

is hereby affirmed.

By Farmer, P.J.

Gwin, J. and

Delaney, J. concur.

SGF/sg 226