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State v. Thompson

Court of Appeals of Ohio, Third District, Seneca

February 20, 2018

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
JINETTA L. THOMPSON, DEFENDANT-APPELLANT.

         Appeal from Seneca County Common Pleas Court Trial Court No. 15-CR-0152

          Jennifer L. Kahler for Appellant.

          Stephanie J. Kiser for Appellee.

          OPINION

          PRESTON, J.

         {¶1} Defendant-appellant, Jinetta L. Thompson ("Thompson"), appeals the August 18, 2017 judgment entry of sentence of the Seneca County Court of Common Pleas. For the reasons that follow, we affirm.

         {¶2} On August 19, 2015, the Seneca County Grand Jury indicted Thompson on six counts, including: Count One of trafficking in cocaine in violation of R.C. 2925.03(A)(1), (C)(4)(b), a fourth-degree felony; Count Two of trafficking in cocaine in violation of R.C. 2925.03(A)(1), (C)(4)(a), a fifth-degree felony; Count Three of trafficking in cocaine in violation of R.C. 2925.03(A)(1), (C)(4)(a), a fifth-degree felony; Count Four of trafficking in cocaine in violation of R.C. 2925.03(A)(2), (C)(4)(d), a second-degree felony; Count Five of possessing criminal tools in violation of R.C. 2923.24(A), (C), a fifth-degree felony; and Count Six of endangering children in violation of R.C. 2919.22(A), (E)(2)(a), a first-degree misdemeanor. (Doc. No. 5). Counts One and Four of the indictment include a specification alleging that Thompson committed the offenses in the presence of a juvenile. (Id.). Counts One through Four of the indictment include a forfeiture specification under R.C. 2981.02. (Id.). The forfeiture specification identifies $1415.00, a surveillance-security system, a Samsung cellphone, a Kyocera cellphone, and a Verizon cellphone as property "subject to forfeiture as proceeds derived from or instrumentalities used in the commission or facilitation of the offenses in Counts One through Four of the indictment. (Id.).

         {¶3} The State filed a bill of particulars on September 3, 2015. (Doc. No. 9).

         {¶4} On September 4, 2015, Thompson appeared for arraignment and entered pleas of not guilty. (Doc. No. 11).

         {¶5} On March 21, 2016, Thompson filed a motion for leave to file a motion to suppress evidence. (Doc. No. 27). The State filed its response to Thompson's motion for leave to file a motion to suppress evidence on March 23, 2016. (Doc. No. 28). The trial court granted Thompson's motion for leave to file a motion to suppress evidence on March 25, 2016. (Doc. No. 32).

         {¶6} Thompson filed a motion to suppress evidence on April 6, 2016. (Doc. No. 33). On July 18, 2016, the State filed a memorandum in opposition to Thompson's motion to suppress evidence. (Doc. No. 47). That same day, the State filed a motion "to quash the subpoena [Thompson] issued to Gerald Heffelfinger" ("Heffelfinger"), arguing that "Heffelfinger is not listed in State's discovery as a witness in this case, and the State properly certified the confidential informant's identity in discovery as non-disclosed informant, " which the trial court granted on July 21, 2016. (Doc. Nos. 46, 49).

         {¶7} On July 25, 2016, the trial court denied Thompson's motion to suppress evidence. (Doc. No. 51). Thompson filed a motion to reconsider her motion to suppress evidence on September 14, 2016, which the trial court denied that same day. (Doc. Nos. 73, 76).

         {¶8} The State filed a second bill of particulars on March 29, 2017. (Doc. No. 107).

         {¶9} On March 31, 2017, Thompson filed "Defense Notice of Witness and Motion in Limine Re: Defense Witness Immunity." (Doc. No. 108). Also that day, Thompson filed a motion "to disaggregate Count IV of the Indictment." (Doc. No. 109).

         {¶10} On April 3, 2017, Thompson filed a second motion for leave to file a delayed motion to suppress evidence. (Doc. No. 110).

         {¶11} On May 9, 2017, the State filed its memoranda in opposition to Thompson's motion in limine and motion to disaggregate Count IV of the indictment. (Doc. Nos. 114, 115).

         {¶12} On June 1, 2017, the trial court granted Thompson's motion for leave to file a delayed motion to suppress evidence and motion in limine, and denied Thompson's motion to disaggregate Count IV of the indictment. (Doc. No. 117).

         {¶13} On June 8, 2017, Thompson filed a motion to reconsider her motion to disaggregate Count IV of the indictment, which the trial court denied on July 14, 2017. (Doc. Nos. 122, 141).

         {¶14} That same day, Thompson filed a delayed motion to suppress evidence. (Doc. No. 121). On June 15, 2017, the State filed a memorandum in opposition to Thompson's delayed motion to suppress evidence. (Doc. No. 127). That same day, Thompson filed her response to the State's memorandum in opposition to Thompson's delayed motion to suppress evidence. (Doc. No. 126). The trial court denied her delayed motion to suppress evidence on July 14, 2017. (Doc. No. 141).

         {¶15} On June 30, 2017, the trial court denied Thompson's motion for witness immunity. (Doc. No. 138).

         {¶16} The case proceeded to jury trial on July 17-20, 2017. (Doc. No. 147). On July 20, 2017, the jury found Thompson guilty of the counts of the indictment. (Doc. Nos. 147, 148). The jury found Thompson guilty of the specifications in Counts One and Four alleging that Thompson committed the offenses in the presence of a juvenile. (Id.). The jury found that the surveillance-security system is subject to forfeiture. (Id.). The trial court filed its judgment entry of conviction on July 20, 2017. (Doc. No. 147).

         {¶17} On August 18, 2017, the trial court sentenced Thompson to nine months in prison on Count One, seven months in prison on Count Two, seven months in prison on Count Three, five years in prison on Count Four, seven months in prison on Count Five, and 90 days in jail on Count Six, and ordered that Thompson serve the terms concurrently for an aggregate sentence of five years in prison. (Doc. No. 152).

         {¶18} On September 13, 2017, Thompson filed her notice of appeal. (Doc. No. 155). She raises four assignments of error for our review, which we address together.

         Assignment of Error No. I

         The Trial Court Erred in Finding Appellant Guilty Trafficking [sic] in Cocaine with a Weight Exceeding 10 Grams When the Conviction Was Against the Manifest Weight of the Evidence.

         Assignment of Error No. II

         The Trial Court Erred in Finding Appellant Guilty of Child Endangering Where the State Failed to Introduce Sufficient Evidence to Support the Conviction.

         Assignment of Error No. III

         The Trial Court Erred in Finding Appellant Guilty of Possessing Criminal Tools When the Conviction Was Against the Manifest Weight of the Evidence.

         Assignment of Error No. IV

         The Trial Court Erred in Finding Appellant Guilty of Trafficking in Cocaine When the Conviction Was Against the Manifest Weight of the Evidence.

         {¶19} In her second assignment of error, Thompson argues that her child-endangering conviction is based on insufficient evidence. In her first and fourth assignments of error, Thompson argues that her trafficking-in-cocaine convictions are against the manifest weight of the evidence. In her third assignment of error, Thompson argues that her possessing-criminal-tools conviction is against the manifest weight of the evidence.

         {¶20} Manifest "weight of the evidence and sufficiency of the evidence are clearly different legal concepts." State v. Thompkins, 78 Ohio St.3d 380, 389 (1997). As such, we address each legal concept individually.

         {¶21} "An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt." State v. Jenks, 61 Ohio St.3d 259 (1981), paragraph two of the syllabus, superseded by state constitutional amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997). Accordingly, "[t]he relevant inquiry is whether, after viewing the 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." Id. "In deciding if the evidence was sufficient, we neither resolve evidentiary conflicts nor assess the credibility of witnesses, as both are functions reserved for the trier of fact." State v. Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-4775, ¶ 33, citing State v. Williams, 197 Ohio App.3d 505, 2011-Ohio-6267, ¶ 25 (1st Dist). See also State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19 ("Sufficiency of the evidence is a test of adequacy rather than credibility or weight of the evidence."), citing Thompkins at 386.

         {¶22} On the other hand, in determining whether a conviction is against the manifest weight of the evidence, a reviewing court must 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 [trier of fact] clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.'" Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing court must, however, allow the trier of fact appropriate discretion on matters relating to the weight of the evidence and the credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight standard, "[o]nly in exceptional cases, where the evidence 'weighs heavily against the conviction, ' should an appellate court overturn the trial court's judgment." State v. Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.

         {¶23} At trial, the State offered the testimony of Officer Nate Elliott ("Officer Elliott") of the Fostoria Police Department, who testified that he was the lead-case manager with the Seneca County Drug Task Force ("Task Force") of the controlled-narcotics operations on July 14 and 15, 2015 involving Thompson. (July 17, 2017 Tr., Vol. I, at 166, 174, 189-190). Officer Elliott testified that confidential informant ("CI"), Gerald Heffelfinger ("Heffelfinger"), purchased cocaine from Thompson during the controlled-narcotics operations on July 14 and 15, 2015. (Id. at 176, 192).

         {¶24} On July 14, 2015, Heffelfinger purchased $60 worth of cocaine from Thompson during the controlled-narcotics operation. (Id. at 174, 176, 177, 184). As part of the operation, an audio and video-recording device was affixed to Heffelfinger, Heffelfinger and Heffelfinger's vehicle were searched for contraband, and Heffelfinger was provided $60 "of covert funds." (Id. at 176-178). Officer Elliott testified that he "was present for the entire operation, pre- and post-operation" and that Heffelfinger was "under surveillance during the entire operation." (Id. at 176, 178).

         {¶25} Officer Elliott and Officer Gabriel Wedge ("Officer Wedge") of the Fostoria Police Department, who was a detective with the Task Force in July 2015, surveilled the controlled-narcotics operation from a vehicle that was parked "to the east of [Thompson's residence]." (Id. 179-180, 239). Officer Elliott testified that Heffelfinger travelled to Thompson's residence without making any detours or coming into contact with anyone else. (Id. at 177-178, 181). He testified that he observed Heffelfinger "exit his vehicle" and walk "up to the porch" of Thompson's residence where Heffelfinger remained "for, approximately, three minutes, two to three minutes" before he returned to his vehicle. (Id. at 180). According to Officer Elliott, at the completion of the "buy, " Heffelfinger left Thompson's residence by driving west at which time Detective Charles W. Boyer ("Detective Boyer"), the unit commander of the Task Force, "followed him back to the predetermined location." (Id.). "Once we arrived at the predetermined location, we removed the audio and visual surveillance [and Heffelfinger] handed [Officer Elliott] a * * * bag with a white rock like substance." (Id. at 182). Law enforcement again searched Heffelfinger and Heffelfinger's vehicle but "found no additional contraband." (Id.).

         {¶26} Officer Elliott testified that law enforcement interviewed Heffelfinger about the controlled-narcotics operation:

He had stated that once he arrived at [Thompson's residence], he went up to the front porch, made contact with her. Stated that she was talking on her cell phone. Stated that she had took the crack, put it on a window sill that * * * is to the left side. * * * And then he had issued her the covert funds. After that he stated that he walked back down towards his car and met us back at the predetermined location.

(Id.). Officer Elliott identified State's Exhibit 3 as the video recording of the July 14, 2015 controlled-narcotics operation. (Id. at 186). He testified that the video recording substantiates Heffelfinger's version of events. (Id. at 187). Further, Officer Elliott testified that "watching the video you could hear multiple children present in the background that appeared to be in the same room as Ms. Thompson." (Id. at 187).

         {¶27} Officer Elliott identified State's Exhibits 4 and 5 as photographs taken from the video recording of the July 14, 2015 controlled-narcotics operation. (Id. at 188). State's Exhibit 4 depicts Thompson holding the covert funds that Heffelfinger provided to her. (Id.). State's Exhibit 5 depicts "the white, rock like substance" on the window sill. (Id.). Officer Elliott identified State's Exhibit 1 as the cocaine that Heffelfinger purchased from Thompson during the controlled-narcotics operation on July 14, 2015. (Id. at 183-184).

         {¶28} On July 15, 2015, Heffelfinger purchased $100 worth of cocaine from Thompson during the controlled-narcotics operation. (Id. at 192). Prior to the operation, law enforcement searched Heffelfinger and Heffelfinger's vehicle, and outfitted Heffelfinger with an audio-and-video-recording device. (Id. at 190-192). After Officer Elliott observed Thompson at her residence on July 15, 2015, Heffelfinger went to Thompson's residence to purchase cocaine in a manner similar to the July 14, 2015 controlled-narcotics operation. (Id. at 191-192). Officer Elliott described:

[Heffelfinger] parked in front of [Thompson's] residence. Went up. Once he got to a certain point, I couldn't see him any longer. Got back in his vehicle after a couple minutes. And then he left that location. We followed him back. Once we arrived back at the predetermined location, he turned over a bag of white rock like substance. He was searched again. The vehicle was searched. No contraband was found on either, and then we conducted the post-operational protocol.

(Id. at 192). (See also id. at 193-194). However, Officer Elliott testified that the audio and visual equipment affixed to Heffelfinger did not operate properly and failed to capture the controlled-narcotics operation. (Id. at 198-199). Officer Elliott identified State's Exhibit 6 as the cocaine that Heffelfinger purchased from Thompson on July 15, 2015. (Id. at 195).

         {¶29} Officer Elliott participated in the execution of a search warrant at Thompson's residence on July 20, 2015. (Id. at 199). As part of his search of Thompson's residence, Officer Elliott discovered "surveillance cameras that were positioned outside of the residence as well as a recording device inside the residence." (Id. at 200). (See also State's Exs. 9, 10, 11). According to Officer Elliott, surveillance systems are commonly found in homes of narcotics traffickers "to monitor their residence against theft" and "police." (July 17, 2017 Tr., Vol. I, at 201). Officer Elliott also testified that he "was present in the kitchen when a large amount of what appeared to be cocaine was located" in an amount "more than what [he] typically would say is personal use cocaine." (Id. at 202).

         {¶30} On cross-examination, Officer Elliott testified that Heffelfinger became a CI because "he was caught with drugs in his car." (Id. at 203). He testified that Heffelfinger entered an agreement with the Fostoria Police Department, the Task Force, and the Seneca County Prosecutor's Office "to provide some controlled buys" in exchange for "some favor with respect to the disposition of [his] own case." (Id. at 205-206).

         {¶31} According to Officer Elliott, because CIs "probably [] have a problem with cocaine or other substances, " they are, "[t]o a certain extent" "not entirely trustworthy." (Id. at 206). Because they are not entirely trustworthy, law enforcement conducts "pre-controlled buy and post-controlled buy protocol" by searching the CI and his or her vehicle. (Id. at 207). Officer Elliott described the search protocol. (See id. at 207-210). (See also id. at 212-213).

         {¶32} Officer Elliott testified that Heffelfinger purchased a "very thin, small" package of cocaine from Thompson on July 14, 2015. (Id. at 209). As such, Officer Elliott conceded that law enforcement could have missed the package of cocaine during their search of Heffelfinger and Heffelfinger's vehicle, and Heffelfinger could have taken the drugs to Thompson's residence. (Id. at 212).

         {¶33} Officer Elliott testified that he did not search Heffelfinger's phone to corroborate Heffelfinger's assertion that he contacted Thompson about purchasing narcotics after Heffelfinger asserted to Officer Elliott ...


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