[Cite as State v. Davis,
2024-Ohio-132.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
STATE OF OHIO,
CASE NO. 9-23-19
PLAINTIFF-APPELLEE,
v.
BRANDY N. DAVIS, OPINION
DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court
Trial Court No. 22-CR-386
Judgment Affirmed in Part, Reversed in Part
Date of Decision: January 16, 2024
APPEARANCES:
W. Joseph Edwards for Appellant
Allison M. Kesler for Appellee
Case No. 9-23-19
WILLAMOWSKI, P.J.
{¶1} Defendant-appellant Brandy Davis (“Davis”) brings this case from the
judgment of the Court of Common Pleas of Marion County finding her guilty of
trafficking in drugs and possession of drugs, both first degree felonies. Davis claims
on appeal that the evidence was not sufficient to support the convictions. For the
reasons set forth below, the judgment is affirmed in part and reversed in part.
{¶2} On January 31, 2022, the MARMET drug task force executed a search
warrant on a home located at 405 Mound Street in Marion, Ohio. In a spare bedroom
of the home, the officers found three bags of what was suspected to be a fentanyl
related compound. Davis was not present at the home, which belonged to her
brother, at the time. Detective Collin Lowe (“Lowe”) later spoke with Davis and
she admitted that the bags belonged to her, not her brother.
{¶3} On July 6, 2022, the Marion County Grand Jury indicted Davis on one
count of Trafficking in a Fentanyl-Related Compound in violation of R.C.
2925.03(A)(2), (C)(9)(g), a felony of the first degree and one count of Possession
of a Fentanyl-Related Compound in violation of R.C. 2925.11(A), (C)(11)(f), a
felony of the first degree. A jury trial was held on February 28 and March 1, 2023.
The jury returned verdicts of guilty on both counts finding that the amount of the
drug involved was between 20 and 50 grams. The trial court then entered judgment
finding Davis guilty.
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{¶4} The trial court held a sentencing hearing on March 20, 2023. The trial
court determined that the offenses were allied offenses of similar import and
merged. The State elected to proceed on the trafficking charge. The trial court then
sentenced Davis to a prison term of 10 to 15 years in prison. Davis appeals from
this judgment and on appeal raises the following assignment of error.
The court erred in deciding that the evidence was sufficient
enough to determine that beyond a reasonable doubt [Davis] was
trafficking in a fentanyl-related compound and in possession of a
fentanyl-related compound.
{¶5} Davis claims in the sole assignment of error that the findings of guilt
were not supported by sufficient evidence.
A sufficiency analysis “ ‘determine[s] whether the case may go to the
jury or whether the evidence is legally sufficient to support the jury
verdict as a matter of law.’ ” State v. Thompkins, 78 Ohio St.3d 380,
386,
678 N.E.2d 541 (1997), quoting Black's Law Dictionary 1433
(6th Ed.1990). If the state fails to present sufficient evidence on every
element of an offense, then convicting a defendant for that offense
violates the defendant's right to due process of law. Id. at 386-387,
678 N.E.2d 541; see also Jackson v. Virginia,
443 U.S. 307, 316,
99
S.Ct. 2781,
61 L.Ed.2d 560 (1979).
State v. Messenger,
171 Ohio St.3d 227,
2022-Ohio-4562, ¶ 13,
216 N.E.3d 653.
The question of whether the evidence presented at trial is legally sufficient to
support a verdict is a question of law and questions the adequacy of the evidence.
State v. Hulbert, 3d Dist. Van Wert No. 15-19-07,
2021-Ohio-2298, ¶ 5. “An
appellate court's function when reviewing the sufficiency of the evidence to support
a criminal conviction is to examine the evidence admitted at trial to determine
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whether such evidence, if believed, would convince the average mind of the
defendant's guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259,
574 N.E.2d 492 (1991) superseded by constitutional amendment on other grounds.
Accordingly, “[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. “In deciding
if the evidence was sufficient, we neither resolve evidentiary conflicts nor assess the
credibility of witnesses, as both are functions reserved for the trier of fact.” State v.
Jones, 1st Dist. Hamilton No. C-120570, 20130Ohio-4775, ¶ 33.
{¶6} Here, the jury determined that Davis was guilty of trafficking in a
fentanyl-related compound in violation of R.C. 2925.03(A)(2) with an amount
between 20 and 50 grams. This statute provides the following.
(A) No person shall knowingly do any of the following:
…
(2) Prepare for shipment, ship, transport, deliver, prepare for
distribution, or distribute a controlled substance or a controlled
substance analog, when the offender knows or has reasonable cause
to believe that the controlled substance or a controlled substance
analog is intended for sale or resale by the offender or another person.
R.C. 2925.03. In support of the charge, the State played a taped interview between
Lowe and Davis. In the interview, Davis admitted that she had taken the drugs to
her brother’s home and given them to him for safekeeping. She knew that the drugs
were contained in three separate bags and estimated the total amount of drugs to be
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about 30 grams. She even identified a picture of the bags containing the fentanyl
substance as the ones she had given to her brother for safekeeping and admitted that
they belonged to her. Lowe testified to what the expected value of the drugs were
based upon his determination that the amount of drugs were 60 grams. Anthony
Tambasco testified that he tested the substance in the bags and determined that they
all contained fentanyl with a total weight of approximately 57 grams.
{¶7} Although the State presented evidence that Davis had transported the
drugs to the home, the State failed to present evidence that it was for the purpose of
sale or resale. No evidence was presented that drug paraphernalia such as scales or
packaging materials was found or even that trafficking was occurring at the location
where the drugs were found. No large amounts of cash were found either. Lowe
testified that he became aware of Davis “through a drug investigation” involving
her brother’s home. Tr. 242. No evidence was presented that any trafficking was
occurring or that the drugs were for anything besides personal use.
{¶8} Although the jury found that Davis had between 20 and 50 grams of a
fentanyl compound, contrary to the testimony of Lowe and Tambasco, existing case
law demonstrates that the amount of the drugs alone is not sufficient to show that
the drugs were “intended for sale or resale”. In State v. Carpenter, this court held
that the evidence was sufficient to support a drug trafficking conviction when the
drugs were found in close proximity to digital scales and packaging items. State v.
Carpenter, 3d Dist. Seneca No. 13-18-16, 2019-Ohio-58. This Court, in Carpenter,
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focused on the fact that numerous courts had determined that items such as plastic
baggies, digital scales, and large sums of money combined with the illegal drugs
provides a reasonable inference that a defendant is engaged in drug trafficking. Id.
at ¶ 33. See State v. Lawson, 2d Dist. Greene No. 2020-CA-16, 2020-Ohio-6852,
164 N.E.3d 1130 (holding that evidence was sufficient to support conviction for
trafficking in fentanyl when almost 75 grams of fentanyl was found near digital
scale and an officer testified that is an indication of trafficking); State v. Mickey,
12th Dist. Clermont No. CA2019-07-055,
2020-Ohio-1432 (holding that conviction
for trafficking was sufficient when 31 grams of fentanyl was found in apartment
complex known for high drug activity and was found with large pile of lottery cards
commonly used for packaging the drugs, a digital scale, and a large sum of cash);
and State v. Shields, 4th Dist. Washington No. 22CA11,
2023-Ohio-2331 (holding
that evidence sufficient to support trafficking conviction when an officer found over
270 grams of fentanyl and a witness testified that the defendant had sold her
fentanyl).
{¶9} During closing arguments, the State argued that since Davis admitted
to taking the drugs to her brother’s home and that it was not for his use, the jury
should infer it was for the purpose of sale. However, this inference is not supported
by any additional evidence, as there were no other indications of trafficking such as
scales, packaging materials, cash or even a history of drug sales occurring in the
home presented to the jury. Davis’s own statements on the tape were that the drugs
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were hers and no evidence was presented by the State to contradict it or to show that
it was for the purpose of sale. The jury clearly believed at least part of what was on
the tape as it determined that the amount of the drugs was between 20 and 50 grams
rather than over 50 grams as was claimed by the State’s witnesses. Since the
evidence is insufficient to support the conviction for trafficking, the assignment of
error is sustained as to that count.
{¶10} Although the counts merged as allied offenses of similar import at
sentencing, the jury also found Davis guilty of possession of a fentanyl-related
compound in violation of R.C. 2925.11(A) in an amount between 20 and 50 grams,
which provides as follows.
(A) No person shall knowingly obtain, possess, or use a controlled
substance or a controlled substance analog.
As discussed above, the evidence viewed in a light most favorable to the State shows
that Davis possessed the drugs. The tape of her conversation with Lowe has her
admitting that the drugs belonged to her. Various courts have held that “a defendant
may be resentenced on guilty verdicts merged for sentencing when the charge which
the state elected to proceed at sentencing is reversed on appeal.” State v. Horn, 6th
Dist. Wood No. WD-21-062, 2023-Ohio-138, ¶ 15. See also State v. Turner, 2d
Dist. Clark No. 2020-CA-49,
2021-Ohio-2216 and State v. Johnson, 8th Dist.
Cuyahoga
No. 106450, 2018-Ohio-3670,
119 N.E.3d 914.
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{¶11} Accordingly, the dismissal of the guilty verdict for possession of a
fentanyl-related compound is vacated by operation of law, is revived, and remains
intact. Davis may be sentenced for this conviction. Turner, supra at ¶ 11. The
matter is remanded for the purpose of sentencing on this verdict.
{¶12} Having found error in part of the particulars assigned and argued, the
judgment of the Court of Common Pleas of Marion County is affirmed in part and
reversed in part. The matter is remanded to the trial court for resentencing.
Judgment Affirmed in Part
Reversed in Part
And Cause Remanded
WALDICK and ZIMMERMAN, J.J., concur.
/hls
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