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State v. Howell

Court of Appeals of Ohio, Fifth District

July 9, 2013

STATE OF OHIO Plaintiff-Appellee
v.
TRACY A. HOWELL Defendant-Appellant

Criminal Appeal from the Court of Common Pleas, Case No. 2012 CR 06 0134

For Plaintiff-Appellee MICHAEL J. ERNEST ASSISTANT PROSECUTOR

For Defendant-Appellant RODNEY A. BACA SCHNARS, BACA & INFANTINO

Hon. William B. Hoffman, P. J. Hon. John W. Wise, J. Hon. Patricia A. Delaney, J.

OPINION

Wise, J.

{¶1} Appellant Tracy A. Howell appeals his sentence and conviction on two counts of trafficking in drugs following a bench trial in the Tuscarawas Court of Common Pleas.

{¶2} Appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶3} On June 8, 2012, the Tuscarawas County Grand Jury filed an Indictment against Appellant Tracy A. Howell charging him with two counts of trafficking in drugs, in violation of R.C. 2925.03, a felony of the fourth degree and a felony of the fifth degree.

{¶4} Count one of the indictment alleged that on September 13, 2011, Appellant engaged in the sale or offered to sell Cocaine. Count two of the indictment alleged that Appellant either sold or offered to sell a Schedule II controlled substance, Oxycodone, in violation of R.C. 2925.03(A)(1).

{¶5} On August 28, 2012, a bench trial commenced in this matter.

{¶6} At the trial, the State presented testimony from its confidential informant, James Hanshaw, Jr. (T. at 22). Hanshaw stated that in September, 2011, he worked as a confidential informant for the LEAD Task Force. Id. Hanshaw stated that he was provided $250.00 to purchase powder cocaine from Appellant. (T. at 31). According to Hanshaw, he spoke with Appellant on September 13, 2011, and asked Appellant if he had "anything". (T. at 27). Appellant replied that he could supply Hanshaw with powder Cocaine. (T. at 29). Prior to the sale taking place, Hanshaw contacted Appellant and advised him that he and another man were ready to make the purchase of the Cocaine, and that he should come over to his apartment. (T. at 29). A short time later, Appellant appeared at Hanshaw's apartment, sat down at a table with him, and exchanged money for a white powder substance. (T. at 30).

{¶7} Subsequently, the substance was tested at B.C.I. & I., and it was determined that it was not a controlled substance.

{¶8} At the trial, Appellant testified that the substance he exchanged during the transaction was crushed aspirin that Hanshaw provided him. Appellant stated he was allegedly approached by Hanshaw and was told that if he sold him the crushed aspirin for $300.00, the two of them would be able to split the ...


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