Court of Appeals of Ohio, Eleventh District, Ashtabula
Criminal Appeal from the Ashtabula County Court of Common
Pleas. Case No. 2016 CR 00243.
Reversed; conviction vacated; remanded.
Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley
M. Pratt, Assistant Prosecutor, Ashtabula County Courthouse,
Rein, (For Defendant-Appellant).
TIMOTHY P. CANNON, J.
Appellant, Karen Marie Tackett ("Tackett"), appeals
from the May 17, 2018 judgment entry of the Ashtabula County
Court of Common Pleas, finding her guilty, following a jury
trial, on five counts related to the production and
distribution of drugs. Following this finding, the trial
court sentenced Tackett to an aggregate total of 48 months in
prison. For the following reasons, we hereby reverse the
judgment and vacate Tackett's conviction.
Tackett was indicted on five counts related to the
production, possession, and distribution of drugs: (1)
illegal assembly or possession of chemicals for the
manufacture of drugs, with firearm specification; (2)
trafficking in heroin; (3) possession of heroin; (4)
possession of drugs; and (5) possession of criminal tools. A
three-day jury trial was held beginning on May 15, 2018, and
the following evidence and testimony was produced at trial.
The state called three witnesses: Nick Pinney, Matthew Johns,
and Bryan Rose. Tackett called one witness: Joseph Tomsic.
Matthew Johns was also called by the state on rebuttal.
Deputy Nick Pinney of the Ashtabula County Sheriffs Office
testified that he was watching Tackett's residence on the
night of February 1, 2016, because a known resident at the
address, Joseph Tomsic ("Tomsic"), was suspected of
trafficking in drugs and manufacturing methamphetamine.
Deputy Pinney was observing the residence while Deputy
Matthew Johns secured a warrant to search the property. While
observing the residence, he saw a man matching Tomsic's
description leave the residence with another individual in a
vehicle believed to be driven by Tomsic. Deputy Pinney
pursued the vehicle and executed a traffic stop because he
knew that Tomsic had a suspended driver's license and
nine active warrants for his arrest.
Deputy Pinney observed substantial movement from both the
driver and passenger for an extended period of time before
the car finally pulled over. Once Tomsic was removed from the
vehicle and placed in a police car, Tackett was identified as
the passenger. The car contained various items associated
with drug use and trafficking, including hypodermic syringes,
brown liquid and white powder that both later tested positive
for heroin, a digital scale, burnt spoons, and a metal
canister containing a crystal rock-like substance that later
tested positive for methamphetamine. Tackett also had a
syringe in her purse in plain view to Deputy Pinney. After
being placed in a police cruiser, Tomsic allegedly dropped a
second metal canister from inside his pant leg onto the floor
of the backseat of the police cruiser. The metal canister
contained a substance that tested positive for heroin.
Various photographs taken by Deputy Pinney of the items in
the vehicle were also introduced into evidence without
Next, Deputy Matthew Johns testified regarding the traffic
stop and subsequent search of Tackett's residence. Deputy
Johns stated that he was present for the arrest of Tomsic and
the inventory taken from the inside of the vehicle. He also
observed the second metal canister that appeared in the
backseat of the police cruiser after Tomsic was placed
In addition to corroborating Deputy Pinney's testimony
regarding the traffic stop and arrest, Deputy Johns testified
to finding various manufacturing tools and drug paraphernalia
throughout Tackett's residence after obtaining a search
warrant. The search warrant was obtained after Deputy Johns
received information from an informant regarding illegal
activity at the residence. The items found at the residence
were photographed by Deputy Johns, and the photographs were
introduced into evidence without objection.
Also, Deputy Johns testified about his extensive experience
handling drug trafficking cases. He stated that his previous
training included learning how to manufacture methamphetamine
in a controlled environment and that he was able to identify
the items found at the residence to be known chemicals used
to manufacture methamphetamine. Deputy Johns photographed
text messages contained on Tomsic's phone from the month
prior to the arrest as well. These photographs were submitted
as evidence, and Deputy Johns explained from his extensive
experience that the slang language contained therein was
known code for drug trafficking. On cross examination, Deputy
Johns confirmed that his informant leading to seeking a
warrant to search the residence was a confidential informant
whose initials were J. H. ("J.H.").
The state's final witness was Detective Bryan Rose.
Detective Rose's primary testimony was with regard to
Tackett and Tomsic's relationship and reputation over the
time in which Detective Rose was aware of them. The following
exchange was offered at trial:
Q. Now, via a channel of information that's coming
through the patrol division and et cetera, had you ever heard
the names Joseph Tomsic and Karen Tackett?
A. I did.
Q. And when did you recall first hearing those two names?
A. Karen Tackett, in 2000, her and Darren Tackett were still
together at the time. I've been employed with the
Sheriff's Department since 1995, so the - - and then with
Joe Tomsic, it started in I think it was late 2011, early
part of 2012.
Q. What do you mean? What started in 2011-2012?
A. When I would encounter Karen Tackett and Joe Tomsic, was
starting in that time period.
Q. And based on what information? In 2011-2012, what
information were you receiving regarding those two names?
A. That they were involved in trafficking, manufacturing
methamphetamines, heroin. They were taking stolen property in
exchange for payment for those items.
counsel for Tackett objected to the specific acts of
trafficking, manufacturing, and receiving stolen property
being named by the witness, the trial court struck the entire
question and answer, instructing the jury to disregard it.
Immediately thereafter, the state offered the following,
vaguer version of the same line of questioning:
Q. In 2011 and 2012, you had information regarding Joseph
Tomsic and Karen Tackett that you had received, correct?
Q. And was that in regards to criminal activity?
A. That is correct.
Q. And was it in regards to criminal activity for Joseph
A. No. Both.
Q. And from 2011 to 2012, when you had first started
receiving that information, did it end just in that short
time period, or did it continue through February of 2016.
A. It continued through February of 2016.
At the end of the state's case-in-chief, Tackett's
defense counsel moved the court for a Rule 29 acquittal. The
trial court denied the motion, stating there was sufficient
evidence for a jury to convict on each of the five counts.
For Tackett, defense counsel called Tomsic as a witness. He
testified regarding his current incarceration, his
relationship with Tackett over the past decades, his own
criminal history, and the events leading up to and during the
night of the traffic stop. Tomsic admitted that he trafficked
drugs during the time he lived with Tackett, and he took
responsibility for all the items found during the traffic
stop and inside the Tackett residence during the search. He
stated that Tackett had no involvement with his drug
trafficking. Tomsic also insisted on cross examination that
he accepted responsibility for the second metal canister
containing heroin that officers found on the floor in Deputy
Pinney's cruiser after Tomsic was placed in the backseat.
After being shown the contradictory narrative report that was
prepared by Deputy Johns immediately following the incident,
wherein Tomsic denied the container was his, Tomsic insisted
that the report was incorrect.
Tomsic also testified about J.H., the confidential informant
for Deputy Johns, who was residing with Tackett and Tomsic
prior to the night of the traffic stop and search. He
confirmed that J.H. was asked to move out of the residence in
the days before the search for allegedly stealing lottery
tickets from Tomsic. Tomsic testified that, on the night of
the search, a window was kicked out leading to the basement
where J.H. was living in the residence. Further, Tomsic
testified that the reason for his departure from the
residence with Tackett on February 1, 2016-which led to
Deputy Pinney initiating the traffic stop-was his intention
to find and "retaliate" against J.H. for the
alleged theft and breaking of the basement window.
On rebuttal questioning following the testimony from Tomsic,
Deputy Johns recalled examining the metal canister from the
backseat police cruiser in which Tomsic was placed,
recognizing the contents to be heroin, and asking whether the
backseat was empty prior to the arrest, which was confirmed
by Deputy Pinney. He then testified that he questioned
Tomsic, who stated, "Man, that ain't mine."
This contradicted Tomsic's testimony and was corroborated
by the narrative report submitted by Deputy Johns immediately
following the arrest.
After hearing the testimony and reviewing the evidence
submitted by the parties, the jury returned a verdict of
guilty against Tackett on each of the five counts. The jury
did not find guilt with regard to the firearm specification
contained in count one. Following a polling of the jury at
Tackett's request, the trial court referred Tackett to
the Department of Adult Probation for a presentence
At the sentencing hearing on June 18, 2018, the trial court
reviewed, among other things, a presentence report and the
sentencing guidelines contained in R.C. 2929.11 and 2929.12.
Considering all of the aforementioned, the trial court
ordered the following sentence for each charge:
Count One: Illegal Assembly or Possession of Chemicals for
the Manufacture of Methamphetamine (R.C. 2925.041) - 30
Count Two: Trafficking in Heroin (R.C. 2925.03) - 6 months.
Count Three: Possession of Heroin (R.C. 2925.11) - merged for
Count Four: Aggravated Possession of Drugs (R.C. 2925.11) - 6
Count Five: Possessing Criminal Tools (R.C. 2923.24) - 6
In addition, the trial court ordered the sentences for counts
two, four, and five to be served consecutively with one
another and consecutively with count one, for a total of 48
Tackett filed a timely notice of appeal and raises three
assignments of error. For clarity and convenience, we combine
and consider the assignments as necessary.
Tackett's first and second assignments of error state:
[1.] The State failed to present sufficient evidence to
sustain a conviction against Appellant.
[2.] Appellant's convictions are against the manifest
weight of the evidence.
"A challenge to the sufficiency of the evidence raises a
question of law as to whether the prosecution met its burden
of production at trial." State v. Bernard, 11th
Dist. Ashtabula No. 2016-A-0063, 2018-Ohio-351, ¶56,
citing State v. Thompkins, 78 Ohio St.3d 380, 390
(1997) and State v. Windle, 11th Dist. Lake No.
2010-L-033, 2011-Ohio-4171, ¶25. "'In reviewing
the record for sufficiency, "[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., quoting
State v. Smith, 80 Ohio St.3d 89, 113 (1997),
quoting State v. Jenks, 61 Ohio St.3d 259 (1991),
paragraph two of the syllabus.
In determining whether the verdict was against the manifest
weight of the evidence, "'[t]he court, reviewing the
entire record, weighs the evidence and all reasonable
inferences, considers the credibility of witnesses and
determines whether in resolving conflicts in the evidence,
the jury clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed
and a new trial ordered.'" Thompkins,
supra, at 387, quoting State v. Martin, 20 Ohio
App.3d 172, 175 (1st Dist.1983). A judgment of a trial court
should be reversed as being against the manifest weight of
the evidence "'only in the exceptional case in which
the evidence weighs heavily against the
"Weight of the evidence concerns 'the inclination of
the greater amount of credible evidence, offered in
a trial, to support one side of the issue rather than the
other. It indicates clearly to the jury that the party having
the burden of proof will be entitled to their verdict, if, on
weighing the evidence in their minds, they shall find the
greater amount of credible evidence sustains the
issue which is to be established before them. Weight is not a
question of mathematics, but depends on its effect in
inducing belief" Id. (emphasis sic), quoting
Black's Law Dictionary 1594 (6th Ed.1990).
"When a court of appeals reverses a judgment of a trial
court on the basis that the verdict is against the weight of
the evidence, the appellate court sits as a
'"thirteenth juror"' and disagrees with the
factfinder's resolution of the conflicting
testimony." Id., quoting Tibbs v.
Florida, 457 U.S. 31, 42 (1982).
A finding that a judgment is not against the manifest weight
of the evidence necessarily means the judgment is supported
by sufficient evidence. State v. Arcaro, 11th Dist.
Ashtabula No. 2012-A-0028, 2013-Ohio-1842, ¶32.
In support of her assignments of error, Tackett argues that
the state failed to produce any evidence whatsoever in
support of a conviction on each count other than her
association with Tomsic. Because each count contains
elements, facts, and evidence unique unto themselves, we will
analyze each count individually. We omit repetitive reasoning
for overlapping concepts.
One- Illegal Assembly or Possession of Chemicals for the
Manufacture of Drugs
R.C. 2925.041(A), which governs the charge contained in count
one, provides in pertinent part:
(A) No person shall knowingly assemble or possess one or more
chemicals that may be used to manufacture a controlled
substance in schedule I or II with the intent to manufacture
a controlled substance in schedule I or II in violation of
section 2925.04 of the Revised Code.
"Possession of drugs can be either actual or
constructive." State v. Rollins, 3d Dist.
Paulding No. 11-05-08, 2006-Ohio-1879, ¶22, citing
State v. Haynes,25 Ohio St.2d 264 (1971) Even if
the contraband is not in a suspect's "immediate
physical possession," the suspect may still
constructively possess the item, so long as the evidence
demonstrates that [she] "was able to exercise dominion
and control over the controlled substance." State v.
Lee, 11th Dist. No. 2002-T-0168, 2004-Ohio-6954,
¶41, citing State v. Wolery,46 Ohio St.2d 316,
329 (1976). To prove constructive possession, "[i]t must
also be ...