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State v. Tackett

Court of Appeals of Ohio, Eleventh District, Ashtabula

December 16, 2019

STATE OF OHIO, Plaintiff-Appellee,
KAREN MARIE TACKETT, Defendant-Appellant.

          Criminal Appeal from the Ashtabula County Court of Common Pleas. Case No. 2016 CR 00243.

         Judgment: Reversed; conviction vacated; remanded.

          Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, Ashtabula County Courthouse, (For Plaintiff-Appellee).

          Thomas Rein, (For Defendant-Appellant).


          TIMOTHY P. CANNON, J.

         {¶1} 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.

         {¶2} 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.

         {¶3} 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.

         {¶4} 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.

         {¶5} 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 objection.

         {¶6} 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 inside.

         {¶7} 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.

         {¶8} 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.").

         {¶9} 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.

         After 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?
A. 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 Tomsic only?
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.

         {¶10} 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.

         {¶11} 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.

         {¶12} 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.

         {¶13} 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.

         {¶14} 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 evaluation.

         {¶15} 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 months.
Count Two: Trafficking in Heroin (R.C. 2925.03) - 6 months.
Count Three: Possession of Heroin (R.C. 2925.11) - merged for sentencing.
Count Four: Aggravated Possession of Drugs (R.C. 2925.11) - 6 months.
Count Five: Possessing Criminal Tools (R.C. 2923.24) - 6 months.

         {¶16} 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 months.

         {¶17} 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.

         {¶18} 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.

         {¶19} "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.

         {¶20} 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 conviction.'" Id.

         {¶21} "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).

         {¶22} "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).

         {¶23} 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.

         {¶24} 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.

         Count One- Illegal Assembly or Possession of Chemicals for the Manufacture of Drugs

         {¶25} 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 ...

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