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State v. Weathers

December 5, 2008

STATE OF OHIO APPELLEE
v.
ALBERT WEATHERS APPELLANT



Trial Court No. CR-05-2864.

The opinion of the court was delivered by: Pietrykowski, P.J.

DECISION AND JUDGMENT

{¶1} This is an appeal from a denial of post-conviction relief. Albert Weathers, appellant, was convicted of aggravated possession of drugs in March 2006, in the Lucas County Court of Common Pleas. The offense is a violation of R.C. 2925.11(A) and (C)(1)(b) and a third degree felony. The trial court sentenced Weathers to serve a three year prison term for the offense.

{¶2} Weathers appealed his conviction to this court, claiming an error in jury instructions and that the jury verdict was against the manifest weight of the evidence. In a decision and judgment entry issued on September 28, 2007, in State v. Weathers, 6th Dist. No. L-06-1166, 2007-Ohio-5307, we affirmed.

{¶3} Weathers petitioned for post-conviction relief in the trial court, based upon claimed ineffective assistance of counsel. The trial court conducted an evidentiary hearing on the petition on October 3, 2007, during which Weathers submitted testimony of seven witnesses, including testimony by his trial counsel. In a judgment entry filed on January 14, 2008, the trial court denied post-conviction relief. Weathers appeals that judgment. He asserts two assignments of error on appeal:

{¶4} "I. It constituted error to hold that it was reasonable for defendant's trial counsel not to interview the disinterested witnesses before deciding not to use them at trial. (Findings of Fact, Conclusions of Law and Judgment Entry at 6)

{¶5} "II. It constituted error to hold that defendant was not prejudiced. (Findings of Fact, Conclusions of Law and Judgment Entry at 7)"

{¶6} On June 8, 2005, police conducted a search of Weathers' house on Upton Avenue pursuant to a search warrant. Police officers testified at trial concerning evidence and contraband discovered in the search. Police discovered a baggie containing 40 tablets that were subsequently identified as Percocet. Percocet is a prescription drug and a schedule II narcotic. The baggie was hidden in the cassette tape well of a boom box in Weathers' bedroom. Police also discovered four boxes of sandwich bags, a police scanner, and $4,000 in cash in the bedroom. The cash denominations included 100 twenty dollar bills, 24 fifty dollar bills, and eight one hundred dollar bills.

{¶7} A criminalist from the Toledo Police Department crime lab testified that there were 40 tablets and they each weighed 22.63 grams. He analyzed the tablets and determined that they contained acetaminophen and oxycodone. Ocycodone is the active ingredient of Percocet. The criminalist testified that the drugs exceeded the bulk amount for the drug as the bulk amount was 30 tablets at a weight of 20 grams per tablet.

{¶8} Creston White testified at trial that the pills, discovered in the search, were his and that he had a prescription for them. When questioned as to an apparent delay in coming forward with his claim of ownership of the Percocet, White testified that he told police that the pills were his at the scene on the day of the search. White also testified that he lived with Weathers at the time and was staying in the basement. No prescription was produced at trial. No prescription container was discovered in search of the house.

{¶9} At the time of trial White was serving a sentence in a state penitentiary on a drug conviction. Weathers agrees that White has "an extensive prior record of felony convictions."

{¶10} Weathers' mother, Katie Weathers, testified at trial that she was outside the house at the time of the search and arrest of her son. While outside, she heard Creston White keep saying that the pills were his and that he could prove it. He kept saying it to anyone who would listen and was ultimately told to "shut up" by an unidentified police officer who came out from the residence.

{¶11} Detective Michael Awls was the lead investigator at the scene. He denied that Creston White told him that the Percocet pills were his. Other police officers denied knowing Creston White or whether he was present.

{ΒΆ12} Appellant, Albert Weathers, also testified at trial. He testified that he was not aware of the Percocet pills until the day he was arrested. He had taken Percocet, by prescription, for injuries in the past. He denied the pills that were discovered in the search were his. He testified that the ...


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