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State v. Shaner

Court of Appeals of Ohio, Twelfth District, Preble

July 15, 2019

STATE OF OHIO, Appellee,
v.
BRIAN SHANER, Appellant.

          CRIMINAL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS Case No. 17-CR12522

          Martin P. Votel, Gractia S. Manning, for appellee

          William O. Cass, Jr., for appellant

          OPINION

          PIPER, J.

         {¶ 1} In November 2017, the Preble County Sheriffs Office used a confidential informant to conduct a controlled buy of methamphetamine from appellant, Brian Shaner. The transaction occurred in the parking lot of a local medical facility where appellant's motor vehicle was parked. Appellant had his infant child with him in the car during the drug sale.

         {¶ 2} Appellant was subsequently indicted for three offenses: aggravated trafficking in drugs, a second-degree felony; aggravated possession of drugs, a third-degree felony; and endangering children, a first-degree misdemeanor. The case proceeded to a one-day jury trial on June 11, 2018 and the jury found appellant guilty as charged.

         {¶ 3} Within fourteen days of the jury's verdict, appellant's trial attorney filed a written motion for a new trial based on alleged discovery violations. The trial court denied the motion. Meanwhile, appellant's trial counsel indicated to the prosecutor that juror misconduct may have occurred. The prosecutor notified the court by filing a notice of alleged jury misconduct. The trial court appointed new counsel for appellant and scheduled a hearing on the matter.

         {¶ 4} At the end of the hearing, appellant's new trial counsel suggested a new trial was appropriate. The court assumed the request was an oral motion for a new trial, but disagreed, finding that no misconduct occurred and denied the motion. The case then proceeded to sentencing. The court merged the drug trafficking and possession offenses and sentenced appellant to an aggregate four-year prison term.

         {¶ 5} Appellant now appeals his convictions, raising two assignments of error.

         {¶ 6} Assignment of Error No. 1:

         {¶ 7} THE JURY'S FINDING OF GUILTY WAS BASED ON INSUFFICIENT EVIDENCE AND WAS AGAINST THE WEIGHT OF THE EVIDENCE.

         {¶ 8} In his first assignment of error, appellant argues that his conviction was not supported by sufficient evidence and was otherwise against the manifest weight of the evidence.

         {¶ 9} The concepts of sufficiency of the evidence and weight of the evidence are both quantitatively and qualitatively different. State v. Couch, 12th Dist. Butler No. CA2016-03-062, 2016-Ohio-8452, ¶ 9, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Sufficiency of the evidence is the concept of whether the conviction can be supported as a matter of law. State v. Green, 12th Dist. Warren No. CA2017-11-161, 2018-Ohio-3991, ¶ 25. The standard of review for a sufficiency of the evidence challenge is whether any rational trier of fact could have found the prosecution proved the essential elements of the criminal offense beyond a reasonable doubt, viewing the evidence in the light most favorable to the prosecutor. State v. Beverly, 143 Ohio St.3d 258, 2015-Ohio-219, ¶ 15. On a sufficiency challenge, the reviewing court will not consider the credibility of the witnesses. State v. Wilks, 154 Ohio St.3d 359, 2018-Ohio-1562, ¶ 162. Instead, the appellate court will defer to the trier of fact on questions of credibility and weight. State v. Kirkland, 140 Ohio St.3d 73, 2014- Ohio-1966, ¶ 132.

         {¶ 10} A manifest weight challenge, on the other hand, requires the appellate court examine the evidence to determine whether the "greater amount of credible evidence" supports one side of the issue over the other. State v. Bell, 12th Dist. Clermont No. CA2008- 05-044, 2009-Ohio-2 ...


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