State v. Smith

[Cite as State v. Smith, 2013-Ohio-3330.]

COURT OF APPEALS

LICKING COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:

: Hon. W. Scott Gwin, P.J.

Plaintiff-Appellee : Hon. Sheila G. Farmer, J.

: Hon. Craig R. Baldwin, J.

-vs- :

:

NATHAN L. SMITH : Case No. 13-CA-07

:

Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common

Pleas, Case No. 12 CR 00510

JUDGMENT: Affirmed

DATE OF JUDGMENT: July 29, 2013

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

BRIAN T. WALTZ WILLIAM T. CRAMER

20 South Second Street 470 Olde Worthington Road

4th Floor Suite 200

Newark, OH 43055 Westerville, OH 43082

Licking County, Case No. 13-CA-07 2

Farmer, J.

{¶1} On September 20, 2012, Ohio State Highway Patrol Trooper Michael

Wilson, stopped appellant, Nathan Smith, for a traffic violation. Upon investigation,

Trooper Wilson discovered a bag of crack cocaine.

{¶2} On September 28, 2012, the Licking County Grand Jury indicted appellant

on one count of possessing cocaine in violation of R.C. 2925.11 (A)(C)(4)(d) and one

count of possessing marijuana in violation of R.C. 2925.11(A)(C)(3)(b).

{¶3} A jury trial commenced on January 15, 2013. The jury found appellant

guilty as charged. By judgment entry filed January 16, 2013, the trial court sentenced

appellant to an aggregate term of four years in prison.

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

consideration. Assignments of error are as follows:

I

{¶5} "APPELLANT'S CONVICTION FOR POSSESSING COCAINE WAS NOT

SUPPORTED BY THE WEIGHT OF EVIDENCE."

II

{¶6} "THE TRIAL COURT VIOLATED DUE PROCESS AND R.C. 2967.28 BY

ATTEMPTING TO DENY THE ADULT PAROLE AUTHORITY THE POWER TO

RECOMMEND A REDUCTION IN THE MANDATORY PERIOD OF POST-RELEASE

CONTROL."

Licking County, Case No. 13-CA-07 3

I

{¶7} Appellant claims his conviction was against the manifest weight of the

evidence as the facts failed to establish that he had possession of the cocaine. We

disagree.

{¶8} 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.

{¶9} Appellant was convicted of possession of cocaine in violation of R.C.

2925.11(A)(C)(4)(d) which states the following:

No person shall knowingly obtain, possess, or use a controlled

substance or a controlled substance analog.

Whoever violates division (A) of this section is guilty of one of the

following:

(4) If the drug involved in the violation is cocaine or a compound,

mixture, preparation, or substance containing cocaine, whoever violates

division (A) of this section is guilty of possession of cocaine. The penalty

for the offense shall be determined as follows:

Licking County, Case No. 13-CA-07 4

(d) If the amount of the drug involved equals or exceeds twenty

grams but is less than twenty-seven grams of cocaine, possession of

cocaine is a felony of the second degree, and the court shall impose as a

mandatory prison term one of the prison terms prescribed for a felony of

the second degree.

{¶10} Appellant argues Trooper Wilson's testimony about cocaine possession

was not credible. 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.

{¶11} Trooper Wilson testified after conducting a traffic stop and smelling and

observing marijuana, he asked appellant to step out of the vehicle and patted him down.

T. at 51-52, 55-56. Trooper Wilson felt a bulge in a plastic baggy near appellant's groin

area between his buttocks. T. at 56-57. Based upon Trooper Wilson's experience in

over 3000 drug arrests, when he felt the bulge, he believed it to be contraband. T. at

49, 57. Trooper Wilson walked appellant to the cruiser and confronted him about the

drugs. T. at 58. Appellant stated it was "a bag of weed" and agreed to retrieve it

himself. Id. Trooper Wilson uncuffed appellant and a tussle ensued. Id. Trooper

Wilson observed a bag of "suspected crack cocaine" come out of appellant's pants and

fly through the air. T. at 59-60. The bag landed next to the passenger who was sitting

in the grass. T. at 60-61. Trooper Wilson retrieved the bag after placing appellant in

Licking County, Case No. 13-CA-07 5

the cruiser. The contents of the bag tested positive for "cocaine base," also called crack

cocaine. T. at 120-121, 125.

{¶12} Upon review, we find this sole testimony to be sufficient to support the

guilty finding, and no manifest miscarriage of justice.

{¶13} Assignment of Error I is denied.

II

{¶14} Appellant claims the trial court erred in sentencing him to post-release

control which is "not subject to reduction by the Adult Parole Authority" in violation of

R.C. 2967.28(B) and (D)(3). We disagree.

{¶15} R.C. 2967.28(B) states the following in pertinent part:

Each sentence to a prison term for a felony of the first degree, for a

felony of the second degree, for a felony sex offense, or for a felony of the

third degree that is an offense of violence and is not a felony sex offense

shall include a requirement that the offender be subject to a period of post-

release control imposed by the parole board after the offender's release

from imprisonment.***Unless reduced by the parole board pursuant to

division (D) of this section when authorized under that division, a period of

post-release control required by this division for an offender shall be of

one of the following periods:

(2) For a felony of the second degree that is not a felony sex

offense, three years.

Licking County, Case No. 13-CA-07 6

{¶16} R.C. 2967.28(D)(3) states the following in pertinent part:

At any time after a prisoner is released from imprisonment and

during the period of post-release control applicable to the releasee, the

adult parole authority or, pursuant to an agreement under section 2967.29

of the Revised Code, the court may review the releasee's behavior under

the post-release control sanctions imposed upon the releasee under this

section. The authority or court may determine, based upon the review and

in accordance with the standards established under division (E) of this

section, that a more restrictive or a less restrictive sanction is appropriate

and may impose a different sanction. The authority also may recommend

that the parole board or court increase or reduce the duration of the period

of post-release control imposed by the court. If the authority recommends

that the board or court increase the duration of post-release control, the

board or court shall review the releasee's behavior and may increase the

duration of the period of post-release control imposed by the court up to

eight years. If the authority recommends that the board or court reduce

the duration of control for an offense described in division (B) or (C) of this

section, the board or court shall review the releasee's behavior and may

reduce the duration of the period of control imposed by the court.

{¶17} Appellant argues R.C. 2967.28(D)(3) authorizes the Adult Parole Authority

to review the behavior of any releasee and make a recommendation to increase or

Licking County, Case No. 13-CA-07 7

reduce the duration of post-release control if warranted; therefore the trial court erred in

imposing post-release control "not subject to reduction by the Adult Parole Authority."

{¶18} Appellant was convicted of a felony of the second degree which requires

mandatory post-release control for three years. R.C. 2967.28(B)(2).

{¶19} Upon review, we find the trial court did not err in stating appellant's post-

release control was not subject to modification given the statutory sentencing scheme.

{¶20} Assignment of Error II is denied.

{¶21} The judgment of the Court of Common Pleas of Licking County, Ohio is

hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Baldwin, J. concur.

_______________________________

Hon. Sheila G. Farmer

_______________________________

Hon. W. Scott Gwin

_______________________________

Hon. Craig R. Baldwin

SGF/sg 717

[Cite as State v. Smith, 2013-Ohio-3330.]

IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO :

:

Plaintiff-Appellee :

:

-vs- : JUDGMENT ENTRY

:

NATHAN L. SMITH :

:

Defendant-Appellant : CASE NO. 13-CA-07

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Licking County, Ohio is affirmed. Costs to

appellant.

_______________________________

Hon. Sheila G. Farmer

_______________________________

Hon. W. Scott Gwin

_______________________________

Hon. Craig R. Baldwin