[Cite as State v. Houser,
2014-Ohio-3753.]
COURT OF APPEALS
HOLMES COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
: Hon. John W. Wise, J.
-vs- :
:
JOHN R. HOUSER : Case No. 14-CA-002
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 13-CR-085
JUDGMENT: Affirmed
DATE OF JUDGMENT: August 28, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
F. CHRISTOPHER OEHL DAVID M. HUNTER
164 East Jackson Street 244 West Main Street
Millersburg, OH 44654 Loudonville, OH 44842
Holmes County, Case No. 14-CA-002 2
Farmer, J.
{¶1} On August 19, 2013, the Holmes County Grand Jury indicted appellant,
John Houser, on one count of trafficking in marijuana in violation of R.C. 2925.03(A)(1)
and (C)(3)(a) and (b) and one count of aggravated trafficking (Ecstasy) in violation of
R.C. 2925.03(A)(1) and (C)(1)(a) and (b) committed on January 7, 2013, and one count
of aggravated trafficking (Ecstasy) in violation of R.C. 2925.03(A)(1) and (C)(1)(c)
committed on February 26, 2013. Said charges arose from two controlled drug buys by
a confidential informant, Mark Mullins, in the vicinity of a school. During both
transactions, appellant was driving a red Tahoe.
{¶2} A jury trial commenced on January 6, 2014. The jury found appellant
guilty as charged. By judgment entry filed January 23, 2014, the trial court sentenced
appellant to an aggregate term of five years in prison.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶4} "THE CONVICTION FOR TRAFFICKING IN MARIJUANA AND
AGGRAVATED TRAFFICKING, BEING COUNTS ONE AND TWO OF THE
INDICTMENT AND WHICH ALLEGEDLY OCCURRED ON JANUARY 7, 2013, WERE
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."
II
{¶5} "THE CONVICTION FOR AGGRAVATED TRAFFICKING, BEING COUNT
TWO OF THE INDICTMENT AND WHICH ALLEGEDLY OCCURRED ON FEBRUARY
26, 2013, WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."
Holmes County, Case No. 14-CA-002 3
III
{¶6} "THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO
DISMISS UNDER CRIM.R. 29(A) AT THE CLOSE OF THE STATE'S CASE."
IV
{¶7} "THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF
COUNSEL."
I, II, III
{¶8} Appellant claims his convictions for trafficking in marijuana and
aggravated trafficking on January 7, 2013 and aggravated trafficking on February 26,
2013 were against the manifest weight of the evidence. Appellant also claims the trial
court erred in denying his Crim.R. 29 motion for acquittal. We disagree.
{¶9} On review for manifest weight, a reviewing court is to 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 jury clearly
lost its way and created such a manifest miscarriage of justice that the conviction must
be reversed and a new trial ordered." State v. Martin, 20 Ohio App.3d 172, 175 (1st
Dist.1983). See also, State v. Thompkins,
78 Ohio St.3d 380,
1997-Ohio-52. The
granting of a new trial "should be exercised only in the exceptional case in which the
evidence weighs heavily against the conviction."
Martin at 175.
{¶10} Crim.R. 29 governs motion for acquittal. Subsection (A) states the
following:
Holmes County, Case No. 14-CA-002 4
The court on motion of a defendant or on its own motion, after the
evidence on either side is closed, shall order the entry of a judgment of
acquittal of one or more offenses charged in the indictment, information, or
complaint, if the evidence is insufficient to sustain a conviction of such
offense or offenses. The court may not reserve ruling on a motion for
judgment of acquittal made at the close of the state's case.
{¶11} The standard to be employed by a trial court in determining a Crim.R. 29
motion is set out in State v. Bridgeman, 55 Ohio St.2d 261 (1978), syllabus: "Pursuant
to Crim.R. 29(A), a court shall not order an entry of judgment of acquittal if the evidence
is such that reasonable minds can reach different conclusions as to whether each
material element of a crime has been proved beyond a reasonable doubt."
CONVICTIONS FOR JANUARY 7, 2013
{¶12} Appellant was convicted of aggravated trafficking in violation of R.C.
2925.03(A)(1) and (C)(1)(b) and trafficking in marijuana in violation of R.C.
2925.03(A)(1) and (C)(3)(b) which state the following, respectively:
(A) No person shall knowingly do any of the following:
(1) Sell or offer to sell a controlled substance or a controlled
substance analog;
(C) Whoever violates division (A) of this section is guilty of one of
the following:
Holmes County, Case No. 14-CA-002 5
(1) If the drug involved in the violation is any compound, mixture,
preparation, or substance included in schedule I or schedule II, with the
exception of marihuana, cocaine, L.S.D., heroin, hashish, and controlled
substance analogs, whoever violates division (A) of this section is guilty of
aggravated trafficking in drugs. The penalty for the offense shall be
determined as follows:
(b) Except as otherwise provided in division (C)(1)(c), (d), (e), or (f)
of this section, if the offense was committed in the vicinity of a school or in
the vicinity of a juvenile, aggravated trafficking in drugs is a felony of the
third degree, and division (C) of section 2929.13 of the Revised Code
applies in determining whether to impose a prison term on the offender.
(3) If the drug involved in the violation is marihuana or a compound,
mixture, preparation, or substance containing marihuana other than
hashish, whoever violates division (A) of this section is guilty of trafficking
in marihuana. The penalty for the offense shall be determined as follows:
(b) Except as otherwise provided in division (C)(3)(c), (d), (e), (f),
(g), or (h) of this section, if the offense was committed in the vicinity of a
school or in the vicinity of a juvenile, trafficking in marihuana is a felony of
the fourth degree, and division (B) of section 2929.13 of the Revised Code
applies in determining whether to impose a prison term on the offender.
{¶13} Pursuant to R.C. 2925.01(P):
Holmes County, Case No. 14-CA-002 6
An offense is "committed in the vicinity of a school" if the offender
commits the offense on school premises, in a school building, or within
one thousand feet of the boundaries of any school premises, regardless of
whether the offender knows the offense is being committed on school
premises, in a school building, or within one thousand feet of the
boundaries of any school premises.
{¶14} Appellant argues the evidence failed to establish he offered to sell and/or
sold marijuana and Ecstasy pills within one thousand feet of a school as the distance to
a school when the drug buy occurred was contradictory. Also, appellant argues the
offer to sell was done via texting on a cell phone and evidence was not presented that
appellant was the one texting.
{¶15} The confidential informant, Mark Mullins, testified he and appellant texted
to set up the sale. T. at 140-141, 143. The cell phone number used was identified as
appellant's via testimony from Roger Estill, Chief Probation Officer, and Ginnie
Sandison, Deputy Clerk with the Clerk of Court's Office, and via court documents. T. at
215-217, 219-221; State's Exhibits 14 and 15. In addition, appellant's own witnesses
identified the cell phone number as being used by appellant as well as other family
members. T. at 246, 302-303, 322-323, 328-329. Photographs of the text messages
on January 7, 2013 were admitted as State's Exhibit 3. T. at 96, 226.
{¶16} On January 7, 2013, the day of the sale, Millersburg Police Chief Thomas
Vaughn, assisting in the surveillance, observed appellant driving a red Tahoe that
entered Millersburg at the appointed time. T. at 48-49, 59. Chief Vaughn was familiar
Holmes County, Case No. 14-CA-002 7
with appellant from past encounters. T. at 53-54. Mr. Mullins testified he entered the
vehicle and appellant was driving and Jeffrey Perrine was seated in the passenger's
seat. T. at 143-144, 168-169. Appellant continued driving and Mr. Mullins grabbed a
brown paper bag containing the marijuana and Ecstasy pills from the center console
and he placed his money on the center console. T. at 145-146. The entire transaction
was audio recorded and played for the jury. T. at 93; State's Exhibit 1. Both Holmes
County Sheriff's Deputy Sergeant Joe Mullet and Mr. Mullins identified appellant's voice
on the tape. T. at 93-94, 156-157.
{¶17} Sergeant Mullet testified Mr. Mullins was picked up at the intersection of
Clinton Street and Monroe Street which was five hundred and fifty-two feet from a Head
Start Preschool. T. at 105. During the drive wherein the drug buy took place, appellant
drove north and then turned around, getting closer to the preschool. Id. A videotape of
the red Tahoe's movements taken by Holmes County Sheriff's Deputy Detective Robert
McVicker and a GIS map of the area showing an aerial view were admitted as State's
Exhibits 11 and 16, respectively. T. at 128-129, 184-185, 187-188, 226. While it is true
that Mr. Mullins was unable to identify the location of the school during the drive around,
testimony from the surveillance officers and the videotape established the vehicle's
route was within one thousand feet of a school.
{¶18} Upon review, we find the evidence was sufficient to establish the sale of
the marijuana and Ecstasy was set up with appellant, and appellant was the driver of
the red Tahoe. The videotape and aerial map, coupled with the testimony of the
surveillance officers of the vehicle's route, were sufficient to establish the elements of
the offenses beyond a reasonable doubt. We find no manifest miscarriage of justice.
Holmes County, Case No. 14-CA-002 8
CONVICTION FOR FEBRUARY 26, 2013
{¶19} The elements of this count are cited above, R.C. 2925.03(A)(1). Appellant
was also convicted of subsection (C)(1)(c) which states:
(C) Whoever violates division (A) of this section is guilty of one of
the following:
(1) If the drug involved in the violation is any compound, mixture,
preparation, or substance included in schedule I or schedule II, with the
exception of marihuana, cocaine, L.S.D., heroin, hashish, and controlled
substance analogs, whoever violates division (A) of this section is guilty of
aggravated trafficking in drugs. The penalty for the offense shall be
determined as follows:
(c) Except as otherwise provided in this division, if the amount of
the drug involved equals or exceeds the bulk amount but is less than five
times the bulk amount, aggravated trafficking in drugs is a felony of the
third degree, and, except as otherwise provided in this division, there is a
presumption for a prison term for the offense. If aggravated trafficking in
drugs is a felony of the third degree under this division and if the offender
two or more times previously has been convicted of or pleaded guilty to a
felony drug abuse offense, the court shall impose as a mandatory prison
term one of the prison terms prescribed for a felony of the third degree. If
the amount of the drug involved is within that range and if the offense was
committed in the vicinity of a school or in the vicinity of a juvenile,
Holmes County, Case No. 14-CA-002 9
aggravated trafficking in drugs is a felony of the second degree, and the
court shall impose as a mandatory prison term one of the prison terms
prescribed for a felony of the second degree.
{¶20} Appellant argues there was no proof that he set up the sale, the drug buy
occurred within one thousand feet of a school, and the amount sold was two times the
bulk amount.
{¶21} As in the January 7, 2013 drug buy, Mr. Mullins and appellant set up the
sale via texts to appellant's known cell phone number. T. at 148; State's Exhibit 4. Both
Chief Vaughn and Sergeant Mullet observed appellant driving the red Tahoe. T. at 52,
86-87. Appellant picked up Mr. Mullins in the same area as before. T. at 150-151. This
time appellant was alone. T. at 152. They drove around town for a minute, the sale
occurred, and appellant drove "around by the park, up by the school." T. at 151-152.
Appellant then dropped him off on "an alley street across from the school." T. at 154.
This transaction was also audio recorded and appellant's voice was identified in the
recording. T. at 157; State's Exhibit 2.
{¶22} The drug buy consisted of twenty-one pills. T. at 104-105; State's Exhibit
8. The pills were tested by B.C.I. and were determined to be Ecstasy. Id.; State's
Exhibit 10. Sergeant Mullet testified bulk amount was ten unit doses or more, so there
was twice the bulk amount. T. at 105.
{¶23} Upon review, we find there was sufficient evidence to substantiate the
elements of the offense beyond a reasonable doubt. We find no manifest miscarriage
of justice.
Holmes County, Case No. 14-CA-002 10
{¶24} All of the testimony reviewed above was given prior to the Crim.R. 29
motion for acquittal. We find the trial court did not err in denying said motion.
{¶25} Assignments of Error I, II, and III are denied.
IV
{¶26} Appellant claims his trial counsel was ineffective for failing to object to
testimony referencing his prior criminal activity and by failing to file a proper alibi
defense. We disagree.
{¶27} The standard this issue must be measured against is set out in State v.
Bradley, 42 Ohio St.3d 136 (1989), paragraphs two and three of the syllabus. Appellant
must establish the following:
2. Counsel's performance will not be deemed ineffective unless and
until counsel's performance is proved to have fallen below an objective
standard of reasonable representation and, in addition, prejudice arises
from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391,
2
O.O.3d 495,
358 N.E.2d 623; Strickland v. Washington [1984],
466 U.S.
668,
104 S.Ct. 2052,
80 L.Ed.2d 674, followed.)
3. To show that a defendant has been prejudiced by counsel's
deficient performance, the defendant must prove that there exists a
reasonable probability that, were it not for counsel's errors, the result of
the trial would have been different.
Holmes County, Case No. 14-CA-002 11
{¶28} Evid.R. 104 places the trial court in the position of determining
admissibility of evidence. Evid.R. 401 defines "relevant evidence" as "evidence having
any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence." Evid.R. 402 states the following:
All relevant evidence is admissible, except as otherwise provided
by the Constitution of the United States, by the Constitution of the State of
Ohio, by statute enacted by the General Assembly not in conflict with a
rule of the Supreme Court of Ohio, by these rules, or by other rules
prescribed by the Supreme Court of Ohio. Evidence which is not relevant
is not admissible.
{¶29} Further consideration is required under Evid.R. 403(A) which states:
"Although relevant, evidence is not admissible if its probative value is substantially
outweighed by the danger of unfair prejudice, of confusion of the issues, or of
misleading the jury."
{¶30} Appellant complains of the testimony discussed above of Roger Estill and
Ginnie Sandison regarding appellant's cell phone number. T. at 215-217, 219-221.
Both testified to the number appellant had placed on court documents (probation
records and a bond). State's Exhibits 14 and 15. The number matched the cell phone
number Mr. Mullins used to text with appellant to set up the drug buys. The testimony
was relevant to prove Mr. Mullins's testimony regarding the number was credible and
Holmes County, Case No. 14-CA-002 12
appellant was the individual setting up the sale. There was a slight reference to the
origin of the court documents.
{¶31} Appellant also complains of the testimony of Chief Vaughn regarding their
past encounters. Chief Vaughn was testifying to his identification of appellant driving
the red Tahoe. Chief Vaughn testified he had prior contact with appellant through
Project Stay, a school program, and had been in court with him before. T. at 53. Chief
Vaughn did not elaborate as to the circumstances regarding the court encounter.
Defense counsel objected and the trial court sustained the objection. T. at 54.
{¶32} We find these references were not unduly prejudicial and do not rise to the
level of ineffective assistance of trial counsel.
{¶33} Appellant also argues his trial counsel filed an incomplete notice of alibi.
Crim.R. 12.1 governs notice of alibi and states the following:
Whenever a defendant in a criminal case proposes to offer
testimony to establish an alibi on his behalf, he shall, not less than seven
days before trial, file and serve upon the prosecuting attorney a notice in
writing of his intention to claim alibi. The notice shall include specific
information as to the place at which the defendant claims to have been at
the time of the alleged offense. If the defendant fails to file such written
notice, the court may exclude evidence offered by the defendant for the
purpose of proving such alibi, unless the court determines that in the
interest of justice such evidence should be admitted.
Holmes County, Case No. 14-CA-002 13
{¶34} The notice of alibi filed December 10, 2013 sets forth five specific
individuals who would testify that appellant was not the driver of the red Tahoe that met
with Mr. Mullins for the drug buys:
1) Katherine Philips, 616 S. Main St., Apt. B-7, Shreve, Ohio 44676,
who will testify that she had her daughter rather than the Defendant on
Sunday, January 6, 2013, the same date as the text allegedly from
Defendant stating that he had both his daughters.
2) Laureen Houser, 616 S. Main St., Apt. E-4, Shreve, Ohio 44676,
who will opine to her belief that the true perpetrator is her other son, Jacob
Houser.
3) Samantha Jordan, 76 C.R. 1100, West Salem, Ohio 44287 who
will testify that she was the owner of the subject vehicle on the dates in
question and that she allowed Jacob Houser to use said vehicle on or
about the dates in question.
4) Jacob Houser, 8171 Twp. Rd. 576, Holmesville, Ohio 44633,
who may or may not testify to his role in the incidents in question.
5) Jeffrey Perrine, 71 N. Mad Anthony, Millersburg, Ohio 44654,
who will testify he was not present in the State of Ohio on one date in
question.
{¶35} All of these individuals testified at trial relatively consistent with the stated
subject matter. T. at 243, 253, 254-257, 273, 280-281, 290, 292-293. The trial court
Holmes County, Case No. 14-CA-002 14
ruled after listening to the testimony it was not going to give an alibi instruction "unless I
hear something differently from the last witness." T. at 282-283. The trial court also
determined the alibi notice did not include a specific location as required and therefore
"it can't come in." T. at 286. The last two witnesses were appellant's brother, Jacob
Houser, and appellant's mother, Laureen Houser.
{¶36} Appellant's present argument is that his mother would have testified that
he was with her instead of in Millersburg during the two drug buys. Appellant's Brief at
15. A proffer of this testimony was not made.
{¶37} The defense presented considerable testimony about the accessibility and
use of the red Tahoe and the cell phone by all members of the family. T. at 243, 253,
254-256, 273, 290, 292-293, 302, 328-329. Appellant's mother testified extensively to
photographs she had taken of her sons in the red Tahoe, suggesting misidentification.
T. at 303-315; Defendant's Exhibits K-O. Appellant admitted to Samantha Jordan, the
owner of the red Tahoe, that he had used the vehicle on the dates in question. T. at
259-266, 277-279. Considerable issues of credibility of the defense witnesses were
raised during cross-examination, including impeachment with their own prior sworn
testimony.
{¶38} We note this court must accord deference to defense counsel's strategic
choices made during trial and "requires us to eliminate the distorting effect of hindsight."
State v. Post, 32 Ohio St.3d 380, 388 (1987).
{¶39} Given the cross-examination and the lack of a specific proffer, we find no
deficiency by trial counsel or any undue prejudice to appellant.
{¶40} Assignment of Error IV is denied.
Holmes County, Case No. 14-CA-002 15
{¶41} The judgment of the Court of Common Pleas of Holmes County, Ohio is
hereby affirmed.
By Farmer, J.
Hoffman, P.J. and
Wise, J. concur.
SGF/sg 805
