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State v. Schwab

Court of Appeals of Ohio, Fourth District

September 23, 2013

STATE OF OHIO, Plaintiff-Appellee,
TERRY SCHWAB, Defendant-Appellant.

David J. Winkelmann, Athens, Ohio, for appellant.

Keller J. Blackburn, Athens County Prosecutor, and Merry M. Saunders, Athens County Assistant Prosecutor, Athens, Ohio, for appellee.


William H. Harsha, Judge.

(¶1} Terry Schwab appeals his convictions for various drug offenses and argues they are supported by insufficient evidence and against the manifest weight of the evidence. The first set of charges stemmed from an incident on March 9, 2011, in which Schwab's fiancée, Michelle Fidell, sold Oxycodone and her then minor daughter, Tara Crego, sold Xanax (Alprazolam) to a confidential informant while inside Schwab's home. The second set of charges stemmed from an incident on April 1, 2011, in which law enforcement initiated a traffic stop of a vehicle Schwab was driving, and he purportedly gave Crego a bottle of Oxycodone which she hid in her bra.

(¶2} Schwab contends no evidence shows he was complicit in the aggravated trafficking of Oxycodone and in the trafficking of Alprazolam that occurred during the March 9 incident. However, the State introduced evidence that a few days before the incident, Schwab told the informant he would have Xanax in a "few days" and would have "the Xanax and the 30's, " i.e., Oxycodone. The State also offered evidence Fidell sold drugs for Schwab in the past, the drugs sold to the informant belonged to Schwab, and before the sales occurred, Schwab nodded his approval for the Xanax sale and either told Crego to give the informant "what she wants" or to "[j]ust give her anything." Based on the State's version of events, the jury could reasonably find that Schwab aided and abetted Fidell and Crego in the transactions and return guilty verdicts. The jury did not clearly lose its way and create such a manifest miscarriage of justice that we must reverse the convictions. The convictions are not against the manifest weight of the evidence and sufficient evidence supports them.

(¶3} Next, Schwab complains about his conviction for corrupting another with drugs for the March 9 incident. The jury found he corrupted Crego with Oxycodone, but the State presented no evidence he administered or furnished Crego with that drug during the incident. It is clear from the evidence that Fidell handled the sale of Oxycodone while Crego handled the Xanax sale. Therefore, we agree insufficient evidence exists to support the conviction and reverse it. This decision renders Schwab's manifest weight argument on this conviction moot.

(¶4} Schwab also challenges his conviction for corrupting another with drugs (Oxycodone) during the April 1 incident and argues there is no evidence he furnished or administered the drug to Crego. However, Crego testified that after police initiated the traffic stop, Schwab handed her a pill bottle of Oxycodone, which she hid in her bra. Schwab and a passenger snorted pills from this bottle during their road trip. The jury could infer that Schwab knowingly provided or supplied Crego with the bottle in order to conceal it from police and avoid criminal liability. The jury could reasonably return a guilty verdict based on the State's version of events. The conviction is not against the manifest weight of the evidence and is supported by sufficient evidence.

(¶5} Finally, Schwab challenges his conviction for complicity to aggravated possession of drugs based on the April 1 traffic stop. However, from Crego's testimony the jury could reasonably conclude Schwab handed her the bottle of Oxycodone and thereby knowingly aided or abetted her in possessing a schedule II controlled substance. Therefore, we find this conviction is not against the manifest weight of the evidence and is supported by sufficient evidence.

I. Facts

(¶6} The Athens County grand jury indicted Schwab on one count of aggravated trafficking in drugs, two counts of corrupting another with drugs, one count of trafficking in drugs, and one count of aggravated possession of drugs. The matter proceeded to a jury trial, which produced the following evidence.

(¶7} Byron Guinther, an agent for the Ohio Department of Public Safety, testified that Patricia Vore agreed to become a confidential informant ("CI") after he caught her selling food stamps. On March 9, 2011, she made a controlled buy of three or four Xanax "bars" and one Oxycodone pill from Schwab's house. On April 1, 2011, another CI spoke to Schwab's fiancée, Michelle Fidell. From that conservation, Guinther understood that "[t]hey didn't have anything in hand at that time but [Schwab] was in route back * * *." Guinther learned Schwab and Crego were coming back from Columbus and what vehicle they would be in. He gave this information to law enforcement agents who initiated a traffic stop of the vehicle.

(¶8} Patricia Vore testified that she has a drug problem and is a felon. Guinther caught her selling food stamps to buy heroin, so she agreed to become a CI to avoid prosecution for welfare fraud. She told Guinther she could buy drugs from Schwab. However, she was not confident about this, so before Vore officially became a CI she went to Schwab's home on her own to see if she could buy drugs. Her friend Robert Degarmore was there, and she bought a "Roxy 30, " i.e., Oxycodone, from him. Schwab told Vore he would have Xanax "in a few days." Vore also testified Schwab told her he would "have the Xanax and the 30's."

(¶9} Vore made her first controlled buy from Schwab's house on March 9, 2011. When she arrived, Schwab was on the phone, Fidell, and Crego were in the living room. Vore asked about Xanax, and Crego pulled out a "big bag" of Xanax bars. Crego "looked up at [Schwab] and he gave her like a nod, like go ahead and give her what she wants kind of, because she didn't know me." He also told Crego, "Give her what she wants, " in regards to the Xanax. Crego counted the bars out on a table. Fidell also got pills out - she had "the 30's, the pills, or the 15's, " i.e., the Oxycodone. Vore negotiated with Fidell and ultimately bought Xanax bars and one Oxycodone pill. Vore made two more controlled buys at Schwab's house but dealt with Fidell both times.

(¶10} Eighteen-year-old Tara Crego testified that she and her mom lived with Schwab for several years. He had medical problems, and Crego and her mom helped administer his medications. Crego suggested he abused pain medications - he snorted pills and took more than he could get through doctors. Sometimes Crego went with him to Columbus when he had doctor's appointments. On the way home, they would fill his prescriptions and four or five hours later people would come to buy drugs, typically "30's and Xanax." People bought drugs multiple times a week. Crego claimed Schwab told her mom to sell his drugs for him. Fidell did and gave him the money.

(¶11} Crego testified about two incidents that occurred when she was 17. On March 9, 2011, a woman came to the house and asked if "anybody had anything, " and "we said yes." Schwab told Crego to "[j]ust give her anything." Fidell took the woman into the kitchen and "laid them out on the table * * *." According to Crego, her mom and Schwab told her to give the woman Xanax bars. Crego got a bag of Schwab's Xanax bars from a kitchen cabinet and counted out four. The woman put her money on the table. Crego sold four bars to the woman, and Fidell sold the woman "[a] 30." Crego testified that this Oxycodone also belonged to Schwab. The sale occurred in the kitchen, and during it, Schwab stayed in the living room on the phone.

(¶12} On April 1, 2011, Crego went with Schwab and Degarmore to Columbus. During the road trip, Schwab and Degarmore each snorted two Oxycodone pills from a bottle in Schwab's pocket. While in Columbus, Schwab briefly went inside a house of a person Crego did not know before the group went home. Schwab handed his pill bottle to Crego when police stopped them. She thought he did so because he was scared or nervous and she was "underage" and "wouldn't have got checked or searched." She hid the bottle in her bra but ultimately gave it to police.

(¶13} Crego testified she was charged with various offenses in a juvenile court case due to these events. She had an adjudicatory hearing and pleaded guilty to aggravated possession of drugs, tampering with evidence, and trafficking in drugs - all felonies. However, if she testified truthfully against Schwab her case would be "disposed of as a misdemeanor and not as a felony." On cross, Crego admitted that when she first spoke to police, she did not tell them Schwab did anything wrong.

(¶14} Robert Degarmore testified that on April 1, 2011, he and Crego accompanied Schwab to Columbus so Schwab could get some pills. Schwab went alone into a house there for a few minutes before the group headed home. Degarmore claimed Schwab did not show him any pills but admitted they "did two pills" together on the way home. Later the police stopped them, and Crego gave the officers a bottle of pills. He did not know how Crego got the bottle, but Schwab was the last person he had seen with it. Degarmore claimed that during his first police interview, he lied about what he knew because he was under the influence of drugs and trying to save his "own ass."

(¶15} Michelle Fidell testified she had two felony convictions and was incarcerated. Her first conviction was for selling Oxycodone in Schwab's house in 2010. The second was for the March 9, 2011 incident. In exchange for her truthful testimony, the State agreed to not oppose judicial release on her 2010 case. Fidell denied ever selling drugs for Schwab and gave inconsistent testimony on whether she ever sold his drugs without his consent. Fidell claimed that she normally sold her own pills. She gave inconsistent testimony on Schwab's level of awareness of her activities. Fidell testified that she sold her own pills on March 9, 2011 "[a]s far as I can remember." She could not remember if she had someone waiting to buy pills that Schwab was bringing from Columbus on April 1, 2011.

(¶16} The State presented evidence that the pill bottle seized during the traffic stop contained 146 Oxycodone pills. The bottle indicated it contained 84, 15 milligram tablets of Oxycodone prescribed to Schwab and that he was to take one tablet three times a day. According to a report on Schwab's prescription medications, a doctor had last prescribed him 84, 15 milligram Oxycodone pills on March 14, 2011. Guinther testified that during an interview with police, Schwab claimed he sometimes took 12 pills a day. However, on the recording, Schwab also claimed he sometimes took less. Schwab suggested the pill bottle contained more pills than the bottle said because he put pills from other prescriptions in it. He denied knowing Crego had the pills during the stop but claimed she sometimes carried his pills in her bra. Schwab claimed that in the past, he was shocked to learn Fidell had sold his pills. He claimed he never sold drugs and denied knowledge that anyone recently bought drugs in his home.

(¶17} For the March 9 incident, the jury found Schwab guilty of: 1.) complicity to aggravated trafficking in drugs (Oxycodone) in the vicinity of a juvenile; 2.) corrupting another with drugs (Oxycodone); and 3.) complicity to trafficking in drugs (Alprazolam) in the vicinity of a juvenile. For the April 1 incident, the jury found him guilty of: 1.) corrupting another with drugs (Oxycodone); and 2.) complicity to aggravated possession of drugs (Oxycodone) in an amount equal to or in ...

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