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State v. Love

Court of Appeals of Ohio, Ninth District, Summit

August 7, 2019

STATE OF OHIO Appellee
v.
JENTLE S. LOVE Appellant

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 2015-08-2502-B

          JAMES W. ARMSTRONG, Attorney at Law, for Appellant.

          SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.

          DECISION AND JOURNAL ENTRY

          THOMAS A. TEODOSIO, JUDGE.

         {¶1} Appellant, Jentle S. Love, appeals from her convictions in the Summit County Court of Common Pleas. This Court affirms in part and reverses and remands in part.

         I.

         {¶2} A confidential informant offered information to the police that a Highland Hills police officer ("A.B ") was selling steroids and OxyContin pills. The Summit County Drug Unit arranged for the informant to purchase steroids from A.B. on several occasions within approximately one month. Ms. Love is A.B.'s live-in girlfriend and was present with him at all three controlled buys: one in a Target parking lot, one in a Golden Corral parking lot, and one in the driveway of the informant's apartment. The police later executed a search warrant on the couple's home while Ms. Love was present and recovered various types of steroids, syringes, firearms, OxyContin, Vicodin, Opana, Adderall, Xanax, U.S. currency, and other items related to drug trafficking.

         {¶3} A.B. and Ms. Love were both indicted on a litany of drug-related offenses. Following a jury trial, Ms. Love was found guilty of trafficking in drugs, aggravated trafficking in drugs, and possessing drug abuse instruments. She was found not guilty on the remaining counts in the indictment. The trial court suspended a twelve-month prison term and placed Ms. Love on two years of community control.

         {¶4} Ms. Love appealed from her convictions, but this Court, by judgment entry, vacated the sentencing entry and remanded the matter back to the trial court for resentencing. State v. Love, 9th Dist. Summit No. 28375 (June 27, 2017). Upon remand, the trial court issued a new sentencing entry.

         {¶5} Ms. Love now appeals from her convictions and raises four assignments of error for this Court's review. These proceedings were briefly stayed and the matter was remanded back to the trial court once again to issue a nunc pro tunc entry correcting a clerical error in its new sentencing entry. Upon remand, the trial court issued a corrected sentencing entry, which has been made part of the record on appeal.

         {¶6} For ease of analysis, we will consolidate two of Ms. Love's assignments of error.

         II.

         ASSIGNMENT OF ERROR ONE

THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO SUSTAIN A FINDING OF GUILT FOR TRAFFICKING IN DRUGS, AGGRAVATED TRAFFICKING IN DRUGS AND POSSESSION OF DRUG ABUSE INSTRUMENTS.

         ASSIGNMENT OF ERROR THREE

THE TRIAL COURT ERRED BY NOT GRANTING DEFENSE COUNSEL'S CRIMINAL RULE 29 MOTION.

         {¶7} In her first and third assignments of error, Ms. Love argues that the State presented insufficient evidence to support her convictions and the trial court erred in denying her Crim.R. 29 motion for acquittal. She specifically argues that the State failed to prove the knowingly mens rea for the offenses and failed to prove venue for the possessing drug abuse instruments offense. We disagree with the former, but agree with the latter.

         {¶8} "We review a denial of a defendant's Crim.R. 29 motion for acquittal by assessing the sufficiency of the State's evidence." State v. Frashuer, 9th Dist. Summit No. 24769, 2010-Ohio-634, ¶ 33. Whether a conviction is supported by sufficient evidence is a question of law, which this Court reviews de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). "Sufficiency concerns the burden of production and tests whether the prosecution presented adequate evidence for the case to go to the jury." State v. Bressi, 9th Dist. Summit No. 27575, 2016-Ohio-5211, ¶ 25, citing Thompkins at 386. "The 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., quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. However, "we do not resolve evidentiary conflicts or assess the credibility of witnesses, because these functions belong to the trier of fact." State v. Hall, 9th Dist. Summit No. 27827, 2017-Ohio-73, ¶ 10.

         {¶9} Ms. Love was convicted of trafficking in drugs under R.C. 2925.03(A), which states: "No person shall knowingly * * * [s]ell or offer to sell [anabolic steroids, or p]repare for shipment, ship, transport, deliver, prepare for distribution, or distribute [anabolic steroids], when the offender knows or has reasonable cause to believe that the [anabolic steroids are] intended for sale or resale by the offender or another person." Because the amount of anabolic steroids involved equaled or exceeded the bulk amount but was less than five times the bulk amount, the offense was a felony of the fourth degree. See R.C. 2925.03(C)(2)(c). She was also convicted of aggravated trafficking in drugs under R.C. 2925.03(A), which states: "No person shall knowingly * * * [s]ell or offer to sell [oxycodone, or p]repare for shipment, ship, transport, deliver, prepare for distribution, or distribute [oxycodone], when the offender knows or has reasonable cause to believe that the [oxycodone] is intended for sale or resale by the offender or another person." Because oxycodone is a Schedule II drug, the offense was a felony of the fourth degree. See R.C. 2925.03(C)(1)(a); R.C. 3719.41, Schedule II (A)(1)(n). Finally, Ms. Love was convicted of possessing drug abuse instruments under R.C. 2925.12(A), which states:

No person shall knowingly make, obtain, possess, or use any instrument, article, or thing the customary and primary purpose of which is for the administration or use of a dangerous drug, other than marihuana, when the instrument involved is a hypodermic or syringe, whether or not of crude or extemporized manufacture or assembly, and the instrument, article, or thing involved has been used by the offender to unlawfully administer or use a dangerous drug, other than marihuana, or to prepare a dangerous drug, other than marihuana, for unlawful administration or use.

         "Knowingly" Mens Rea

         {¶10} Ms. Love first argues that the State failed to present sufficient evidence as to the knowingly mens rea for these offenses. "A person acts knowingly, regardless of purpose, when the person is aware that the person's conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when the person is aware that such circumstances probably exist." R.C. 2901.22(B). Specifically, Ms. Love claims that she was only present for the controlled buys by coincidence, as she was out shopping with A.B. during one and out to dinner with him for another. She also directs us to the informant's testimony that he never called Ms. Love or knew she would be present for the transactions and ...


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