[Cite as State v. Smith, 193 Ohio App.3d 201, 2011-Ohio-997.]

 

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

SENECA COUNTY 

 

THE STATE OF OHIO, 

 APPELLEE, CASE NO. 13-10-24 

 v. 

SMITH, O P I N I O N 

 APPELLANT. 

 

Appeal from Seneca County Common Pleas Court 

Trial Court No. 09 CR 0278 

Judgment Affirmed 

Date of Decision: March 7, 2011 

 

APPEARANCES: 

Derek W. DeVine and Rhonda L. Best, for appellee. 

 James S. Nordholt Jr., for appellant. 
Case No. 13-10-24 

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PRESTON, Judge. 

{¶ 1} Defendant-appellant, Marquis Smith, appeals the judgment of 

conviction and sentence entered against him by the Seneca County Court of 

Common Pleas following a jury trial in which Smith was found guilty of one count 

of trafficking in crack cocaine. For the reasons that follow, we affirm. 

{¶ 2} On December 16, 2009, the Seneca County Grand Jury returned an 

indictment against Smith charging him with the following counts: count one, 

trafficking in cocaine, with a specification that the offense was committed in the 

vicinity of a school in violation of R.C. 2925.03(A)(1) and (C)(4)(b), a felony of 

the fourth degree; and count two, trafficking in crack cocaine in violation of R.C. 

2925.03(A)(1) and (C)(4)(c), a felony of the fourth degree. On January 7, 2010, 

Smith was arraigned and entered pleas of not guilty to both counts in the 

indictment. 

{¶ 3} A jury trial was held on May 10 and 11, 2010. After the 

presentation of the evidence, the jury returned verdicts of not guilty as to count 

one, trafficking in cocaine, with a specification, and guilty as to count two, 

trafficking in crack cocaine. 

{¶ 4} A sentencing hearing was held on May 18, 2010, and Smith was 

sentenced to 17 months in prison. 
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{¶ 5} Smith now appeals and raises the following two assignments of 

error. 

ASSIGNMENT OF ERROR NO. I 

The verdict of guilty rendered by the jury was against the 

manifest weight of the evidence. 

{¶ 6} In his first assignment of error, Smith claims that his conviction was 

against the manifest weight of the evidence. 

{¶ 7} An appellate court’s function when reviewing the weight of the 

evidence is to determine whether the greater amount of credible evidence supports 

the verdict. State v. Thompkins (1997), 78 Ohio St.3d 380, 387, 678 N.E.2d 541. 

In reviewing whether the trial court’s judgment was against the weight of the 

evidence, the appellate court sits as a “13th juror” and examines the conflicting 

testimony. Id. In doing so, this court must review the entire record, weigh the 

evidence and all of the reasonable inferences, consider the credibility of witnesses, 

and determine whether in resolving conflicts in the evidence, the fact-finder 

“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. Andrews, 3d Dist. 

No. 1-05-70, 2006-Ohio-3764, ¶ 30, citing State v. Martin (1983), 20 Ohio App.3d 

172, 175, 485 N.E.2d 717; Thompkins at 387. 
Case No. 13-10-24 

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{¶ 8} Here, Smith was found guilty on one count of trafficking in drugs in 

violation of R.C. 2925.03(A)(1), which states that “[n]o person shall knowingly * 

* * (1) [s]ell or offer to sell a controlled substance.” However, on appeal, Smith 

disputes only the evidence identifying him as the person who had sold the drugs to 

the confidential informant. 

{¶ 9} The record indicates that on January 8, 2009, and January 11, 2009, 

the Seneca County Drug Task Force conducted controlled-buy operations at 26 

Minerva Street and 233 Franklin Street, Tiffin, Seneca County, Ohio, after having 

been informed by a confidential informant that he would be able to purchase crack 

cocaine from Smith. 

{¶ 10} Detective Charles W. Boyer, with the city of Tiffin, testified that he 

had been the officer in charge of the two operations, since it had been his 

confidential informant that had originally come to him with information that he 

could purchase crack cocaine from Smith. Boyer stated that he, along with two 

other officers, conducted two controlled buys: the first one on January 8, 2009, at 

26 Minerva Street; and the second one on January 11, 2009, at 233 Franklin Street. 

On January 11, 2009, Boyer said that O’Leary, his confidential informant, 

contacted him and informed him that he would have the opportunity to buy drugs 

from someone known as Parkay or PK at 233 Franklin Street in Tiffin. Boyer said 

that they knew Smith, was known as PK or Parkay and that at the time Smith was 
Case No. 13-10-24 

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residing at 233 Franklin Street, the same residence as the target location for the 

second controlled-buy operation. 

{¶ 11} That night, Boyer, along with two other officers, met O’Leary at a 

predetermined location, and conducted their standard pre-operational procedure, 

which included searching O’Leary for weapons or other contraband, placing an 

audio recording device on O’Leary, and giving O’Leary covert-issued funds of 

$150 to be used for purchasing the drugs. Boyer said that his particular 

responsibility during this second controlled-buy operation was visual surveillance, 

while the other two officers were responsible for the audio surveillance. The two 

officers dropped off O’Leary close to the target location and O’Leary walked up to 

the residence at 233 Franklin Street, while Boyer hid next to a garage in a nearby 

alley. Because O’Leary had arrived at the residence prior to Boyer’s having set up 

the camera in the alley, Boyer said that he was only able to videotape O’Leary 

leaving the back door of Smith’s residence. Then Boyer played the videotape to 

the jury, which he indicated showed O’Leary walking out of the back door of 

Smith’s residence. 

{¶ 12} Once O’Leary left the residence at 233 Franklin Street, Boyer said 

that he met the other two officers and O’Leary at the predetermined location, at 

which time they bagged and tagged the suspected cocaine as evidence and 

searched O’Leary for any additional contraband. Detective Boyer testified that 
Case No. 13-10-24 

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they did not find any other suspected controlled substance on O’Leary during the 

search. 

{¶ 13} On cross-examination, Boyer acknowledged that he did not 

personally observe Smith sell the drugs to O’Leary, since both the transactions had 

taken place inside the residences. In addition, Boyer admitted that he did not 

request any fingerprint testing on the baggies of drugs, but he said that that was 

because the identity of the seller had never been in question. Boyer explained, 

“The only time our unit would specifically ask for fingerprints and/or DNA is 

when the identity of the suspect is in question and we don’t know who it is. In 

this–in this, or in these investigations, we had him positively identified through a 

photograph array. Plus, we purchased, on the second operation, from his residence 

so identity wasn’t in question to us.” Boyer said that based on the audio 

recordings, O’Leary’s identification of Smith through a photograph array, and the 

observation of O’Leary going into Smith’s residence on January 11, 2009, they 

believed that O’Leary had purchased the suspected cocaine from Smith. 

{¶ 14} Next, the confidential informant, Terry O’Leary, testified. O’Leary 

explained that he had assisted the police by buying drugs from Smith twice in 

January 2009. He said that he had been paid for both transactions, and in 

particular had received $75 for the second controlled-buy operation. With respect 

to the second operation, O’Leary said that prior to going to the house that night, he 
Case No. 13-10-24 

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had spoken to Smith about buying drugs again from him. O’Leary said that they 

had discussed the amount of money and drugs, the type of drugs, and the time and 

place of the transaction, which he said was to occur at 233 Franklin Street. 

O’Leary testified that before walking to the target location, he had allowed the 

officers to place an audio transmitter device on him, which had recorded the 

transaction that night. O’Leary further said that when he arrived at the residence, 

he and Smith discussed automobiles before they counted out the money and 

exchanged it for the drugs. Finally, O’Leary stated that after receiving the drugs, 

he left the residence and walked down the street and then was picked up by the 

officers and taken back to the predetermined location. 

{¶ 15} State’s Exhibit 7 was the audio recording from the second operation 

on January 11, 2009, which was played at trial. After the recording was played, 

O’Leary identified all of the voices in the recording, and in particular O’Leary 

identified the person who said, “Just give me two fifties, I’ll owe you 30,” as 

Smith. O’Leary explained that at that point on the tape they were exchanging the 

money for the drugs. 

{¶ 16} Overall, on both direct and cross-examination, O’Leary admitted to 

having a criminal record, which included convictions for receiving stolen property 

in 2007, failure to comply with the order or signal of a police officer in 2006, and 
Case No. 13-10-24 

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two obstruction convictions and one theft conviction in 2002. Nevertheless, 

O’Leary identified Smith as the person who had sold him the drugs. 

{¶ 17} Finally, Smith took the stand and testified that he had never sold 

crack cocaine to O’Leary. Smith admitted that his nickname was Parkay or PK, 

but he stated that he had received the nickname when he was younger, from his 

family. Smith explained that he was not even at the Minerva house on January 8, 

2009. However, he admitted to living at 233 Franklin Street in January 2009 and 

being the only male living at the residence at that time. With respect to the 

controlled-buy transaction that took place on January 11, 2009, Smith explained: 

Honestly, I mean, I’m not going to sit here and try to make up 

a story or persuade you guys or any kind of way. But he never 

entered my house, for one. And anybody can walk into that door 

that he supposedly came out of. That is a back patio porch there. 

And that door is always open. On the side of that porch is another 

door to the main house. So anybody can come and go as they please 

into that door. And it’s kind of hard for me to explain him coming 

out of there because, like I said, I don’t know no more than what you 

guys do. All I know is what he said, the evidence that these people 

have right now, so– 

Based on the above, the jury returned a verdict of guilty as to trafficking in crack 

cocaine on the night of January 11, 2009. 

{¶ 18} On appeal, Smith argues that the only real issue in contention in the 

case is whether he was the person who sold the drugs to the confidential 

informant. Smith claims that the only evidence presented identifying him as the 
Case No. 13-10-24 

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person who had sold the drugs was testimony from the confidential informant, 

Terry O’Leary. However, Smith claims that O’Leary’s testimony was conflicting 

and suspect. After reviewing the above evidence, we disagree and believe that 

there was enough evidence presented to the jury that it was reasonable to believe 

that Smith had been the one who had sold the crack cocaine to O’Leary. 

{¶ 19} Here, the confidential informant testified that he had purchased 

crack cocaine from Smith on January 11, 2009. Boyer testified that the identity of 

the seller had never been in question—that based on the audio recordings, 

O’Leary’s identification of Smith through a photograph array, and the observation 

of O’Leary going into Smith’s residence on January 11, 2009, they believed that 

O’Leary had purchased the cocaine from Smith. Moreover, this transaction had 

taken place at Smith’s residence. Smith even admitted that he was the only male 

living in the residence at the time, and unlike the first controlled-buy operation, 

Smith could not provide any explanation as to his actions the night of January 11, 

2009. In addition, there was an audio recording of the transaction that was played 

for the jury, along with corroborating testimony and a video that showed a man, 

who was identified as the confidential informant, leaving Smith’s residence the 

night of January 11, 2009. 

{¶ 20} Essentially, Smith’s arguments that his conviction was against the 

manifest weight of the evidence are simply attacks based on the credibility of the 
Case No. 13-10-24 

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confidential informant. However, the confidential informant’s testimony and 

credibility were matters for the trier of fact to weigh and determine, and the trier of 

fact was free to accept or reject any and all of the evidence offered by Smith and 

the state. Thompkins, 78 Ohio St.3d at 387. Based on the above evidence, we 

cannot conclude that the jury clearly lost its way and created a manifest injustice 

by finding Smith guilty of trafficking crack cocaine. 

{¶ 21} Smith additionally claims that the fact that he was found not guilty 

of one count of trafficking but guilty of the other count of trafficking clearly 

indicates that the jury lost its way, since the evidence presented on the two 

operations was identical. As Smith states in his appellate brief, there was “no 

apparent reason for the jury to disbelieve the testimony of Mr. O’Leary that he 

bought drugs from the defendant January 8 and yet apparently believe his 

testimony that he bought drugs [from the defendant] on January 11.” 

{¶ 22} “Consistency between verdicts on several counts of an indictment is 

unnecessary where the defendant is convicted on one or some counts and acquitted 

on others; the conviction generally will be upheld irrespective of its rational 

incompatibility with the acquittal.” State v. Trewartha, 165 Ohio App.3d 91, 

2005-Ohio-5697, 844 N.E.2d 1218, ¶ 15, citing State v. Adams (1978), 53 Ohio 

St.2d 223, 374 N.E.2d 137, vacated in part on other grounds in Adams v. Ohio, 

439 U.S. 811, 99 S.Ct. 69, 58 L.Ed.2d 103. Every count of a multiple-count 
Case No. 13-10-24 

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indictment is considered to be distinct and independent of all the other counts; 

therefore, inconsistent verdicts on different counts do not justify overturning a 

verdict of guilt. Id., citing State v. Hicks (1989), 43 Ohio St.3d 72, 78, 538 N.E.2d 

1030; State v. Brown (1984), 12 Ohio St.3d 147, 465 N.E.2d 889, syllabus; State v. 

Washington (1998), 126 Ohio App.3d 264, 276, 710 N.E.2d 307. As the Ohio 

Supreme Court has stated, “the sanctity of the jury verdict should be preserved and 

could not be upset by speculation or inquiry into such matters to resolve the 

inconsistency.” State v. Lovejoy (1997), 79 Ohio St.3d 440, 444, 683 N.E.2d 

1112. 

{¶ 23} Thus, the fact that Smith was found guilty of one count of trafficking 

but not the other count of trafficking cannot be attributed solely to the jury’s 

insecurity, confusion, or doubts as to the adequacy of evidence on the issue of 

identification. Despite Smith’s claims that the evidence presented in regard to the 

two operations was identical, we find that there were notable differences in the 

evidence regarding the first controlled-buy operation and the second. First and 

foremost, the two operations took place on two separate days and occurred at two 

different places. Second, even though O’Leary testified that it was Smith who had 

sold him the drugs during the first operation, O’Leary also said that there had been 

some kind of party going on when he arrived at the house and that there had been 

at least four or five other people there along with Smith. Furthermore, unlike the 
Case No. 13-10-24 

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second controlled-buy operation, which had taken place at Smith’s residence, there 

was nothing to directly connect Smith to the residence at 26 Minerva Street. 

Finally, only with respect to the first controlled-buy operation were there parts of 

O’Leary’s testimony that directly contradicted with Boyer’s testimony. Thus, it is 

clear that there were credibility issues concerning the first controlled-buy 

operation that were not present in the second controlled-buy operation. 

{¶ 24} As illustrated above, there were notable differences in the evidence 

as to the two controlled-buy operations; however, we are not permitted to 

speculate about the reason for the inconsistency in considering the validity of a 

verdict. We find that the fact that Smith was found guilty of one count of 

trafficking but not the other count of trafficking is not enough in and of itself to 

undermine the final judgment of the trafficking count of which Smith was 

convicted by the jury, especially since that conviction, as we stated above, was not 

against the manifest weight of the evidence. 

{¶ 25} Smith’s first assignment of error is, therefore, overruled. 

ASSIGNMENT OF ERROR NO. II 

The court erred when it responded to a question from the jury 

with an answer in violation of the principles set forth in State v. 

Howard and compounded that error by failing to review the question 

and answer with counsel. 
Case No. 13-10-24 

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{¶ 26} In his second assignment of error, Smith argues that the trial court 

erred when it responded to a jury question without giving the appropriate 

supplemental instruction to the jury as required by the Ohio Supreme Court in 

State v. Howard (1989), 42 Ohio St.3d 18, 537 N.E.2d 188 (“Howard 

instruction”). Smith additionally claims that the trial court erred by failing to 

review the question and answer with counsel prior to responding to the jury’s 

question. 

{¶ 27} According to the trial transcripts, the jury went into deliberations at 

12:15 p.m. on May 11, 2010, and rendered its verdict at 7:00 p.m. that same day. 

Between 12:15 p.m. and 7:00 p.m. the jury submitted four questions to the trial 

court. For the first two questions, the trial court called in counsel and discussed 

the jury’s questions and its proposed answers on the record. With respect to the 

fourth jury question, the trial court called in counsel again and presented its 

proposed answer to the parties; however, after discussing the fourth jury question 

and proposed answer, the trial court informed the parties that the jury had 

presented a third question to the trial court and that it had dealt with the question 

without involving counsel. In particular, the trial court stated that the jury had 
Case No. 13-10-24 

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asked, “What do we do now?” and it informed counsel that it had responded, 

“Keep deliberating.”1

{¶ 28} In general, “any communication with the jury by either the judge or 

court personnel, outside the presence of the defendant or parties to the case, is 

error and may warrant a new trial.” State v. Cook, 10th Dist. No. 05AP-515, 

2006-Ohio-3443, ¶ 35, citing State v. Schiebel (1990), 55 Ohio St.3d 71, 83, 564 

N.E.2d 54. “Such private communication outside the presence of the defendant 

does not, however, create a conclusive presumption of prejudice. * * * The 

communication must have been of a substantive nature and in some way 

prejudicial to the party complaining.” Schiebel at 84. Thus, if the communication 

is not substantive, then the error is considered harmless. Cook at ¶ 35, citing State 

v. Allen (1995), 73 Ohio St.3d 626, 630, 653 N.E.2d 675. In particular, 

substantive matters have been found to include discussions concerning “‘legal 

issues involved in the case, applicable law, the charge to the jury, or a fact in 

controversy.’” Cook at ¶ 36, quoting Orenski v. Zaremba Mgt. Co., 8th Dist. No. 

80402, 2002-Ohio-3101. Nevertheless, even if the communication involves a 

substantive issue, the defendant still must demonstrate that he was prejudiced by 

the communication. Cook, 2006-Ohio-3443, at ¶ 36, citing State v. Crumedy, 8th 

Dist. No. 84083, 2004-Ohio-6006. 

 

1

 We note that neither party disputes the fact that the particular question and answer were given even 

though the actual jury questions and answers were not included in the record. 
Case No. 13-10-24 

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{¶ 29} While it may have been error for the trial court to answer the jury’s 

question outside the presence of the parties, we note that Smith failed to object to 

the trial court’s answer to the jury when he was informed of the trial court’s 

actions and failed to request that a Howard instruction be given. Therefore, we 

find that Smith has waived all but plain error. See Crim.R. 52(B). Plain error 

occurs if but for the error, the outcome of the trial would have been different. 

State v. Nicholas (1993), 66 Ohio St.3d 431, 436, 613 N.E.2d 225. After 

reviewing the record, we find that while it may have been error to handle the 

question outside the presence of the parties, the trial court’s response was not 

substantive. The trial court did not address any applicable law in the case, any fact 

in controversy, nor any legal issue. Therefore, absent a showing of prejudice, the 

communication is considered harmless error. 

{¶ 30} Smith claims that there was clearly prejudice in this case since the 

jury found him guilty of one count of trafficking but not guilty of the other count 

of trafficking based on the same exact evidence. However, as we discussed above, 

there were notable differences in the evidence between the two counts, one of 

which was the fact that the two counts dealt with two different transactions on two 

separate and distinct dates and locations. Furthermore, the fact that there are 

different verdicts on different counts does not justify overturning a verdict of guilt. 
Case No. 13-10-24 

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{¶ 31} In addition, Smith argues that this question implicated the need for a 

supplemental charge to a deadlocked jury as required under Howard. The 

instruction formulated by the Ohio Supreme Court in Howard is to be given to a 

jury, when after suitable deliberation, a “‘determination has been made that the 

jury is deadlocked in its decision.’” State v. Gary (Mar. 30, 2000), 3d Dist. No. 5-

99-51, at *5, quoting State v. Minnis (Feb. 11, 1992), 10th Dist. No. 91AP-844. A 

trial court’s decision to give a Howard instruction is within its discretion and will 

not be reversed absent an abuse of discretion. State v. Lightner, 3d Dist. No. 6-09-

02, 2009-Ohio-4443, ¶ 11, citing State v. Thomas (Sept. 21, 2001), 2d Dist. No. 

2000-CA-43, citing State v. King (Mar. 22, 2000), 7th Dist. No. 95 CA 163. 

Furthermore, this court has previously stated that “[t]here is no bright line rule that 

may be used to determine when a jury is deadlocked and when the supplemental 

charge should be read to the jury.” Gary at *5, citing Minnis. See also Lightner at 

¶ 9-16. However, in this particular case, contrary to Smith’s arguments, the jury 

question did not state that the jury was deadlocked; rather, the question was 

general and non-descript – far from a declaration that they were deadlocked. 

Because we are unable to determine from its face the precise nature of the jury’s 

question, we cannot say that the trial court abused its discretion in failing to give 

the supplemental instruction for deadlocked juries set forth in Howard. 

{¶ 32} Therefore, Smith’s second assignment of error is overruled. 
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{¶ 33} Having found no error prejudicial to the appellant herein in the 

particulars assigned and argued, we affirm the judgment of the trial court. 

Judgment affirmed. 

 SHAW and WILLAMOWSKI, JJ., concur.