State v. Mark Wyatt
| Decision Date | 30 August 1994 |
| Docket Number | 93CA2168,94-LW-2484 |
| Parties | STATE OF OHIO, Plaintiff-Appellee v. MARK WYATT, Defendant-Appellant Case |
| Court | Ohio Court of Appeals |
George L. Davis, III, Portsmouth, Ohio, for Appellant.
R Randolph Rumble, Scioto County Assistant Prosecuting Attorney, Portsmouth, Ohio, for Appellee.
DECISION
This is an appeal from judgments of conviction and sentence entered by the Common Pleas Court of Scioto County, upon a no contest plea, finding Mark Wyatt (defendant below and appellant herein) guilty of aggravated trafficking in violation of R.C. 2925.03(A)(5) & (C)(5), a second degree felony. The following errors are posited for our review:
The record reveals the following facts pertinent to this appeal. On February 2, 1993, Deputies Tim Soard and David Norwood of the Scioto County Sheriff's Department were acting as undercover agents. Their investigation was focused on the sale of lysergic acid diethylamide (hereinafter referred to as "LSD") in the village of New Boston, Ohio. Deputy Norwood testified that he phoned Keith Lusk, a friend of appellant, and asked if Mr. Lusk knew where he could obtain some LSD. Mr. Lusk replied that he knew someone who could get Deputy Norwood all of the drug he wanted. The deputies agreed to meet Mr. Lusk at his apartment.
That evening, Deputies Norwood and Soard went to Mr. Lusk's apartment where they were introduced to appellant. They discussed the terms and the amount of LSD they wanted and appellant assured them he could get all they wanted. The deputies agreed to pay four dollars a "hit" (i.e., a unit dose of LSD) for the drug. The deputies paid appellant who then left the apartment. He returned approximately fifteen minutes later with some wet construction paper and some beer. When asked why the paper was still moist, appellant explained that it had just been manufactured at a nearby house. The deputies informed him that they wouldn't pay four dollars for the LSD because it was still damp and a price of two dollars per "hit" was finally negotiated. A subsequent test of the construction paper would reveal no presence of LSD or any other controlled substance.
On March 24, 1993, a Scioto County Grand Jury indicted appellant charging him with one count of trafficking. in LSD, in violation of R.C. 2925.03(A)(7), (C)(7) & (H)(7), and two counts of trafficking in marijuana in violation of R.C 2925.03(A)(1), (E)(1) & (H)(1), stemming from other incidents of alleged drug sales. Appellant later pled guilty to one of the marijuana counts and the other was dismissed. Neither of those charges are pertinent to this appeal.
On May 20, 1993, a motion was made to dismiss the count for trafficking in LSD. Appellant argued therein that the material sold to the undercover deputies was not a real drug at all but only "fake LSD." Therefore, appellant concluded, it was not a controlled substance under Ohio law and he could not be charged with violating R.C. 2925.03 which proscribes only the sale of a controlled substance. An oral hearing was held on May 26, 1993, at which time the matter was submitted for consideration. The lower court ultimately found appellant's arguments to be without merit and on July 1, 1993, entered judgment overruling him motion to dismiss.
Thereafter, an agreement was reached whereby count one of the indictment was reduced from a first degree felony offense under subsection (A)(7) of R.C. 2925.03 to a second degree felony under subsection (A)(5) in exchange for a plea of no contest. The plea was accepted at a hearing ion August 2, 1993, and appellant was found guilty. A judgment to that effect was later entered. On August 20, 1993, the court below sentenced appellant to a term of imprisonment from between three (3) to fifteen (15) years with the minimum amount to be served as actual incarceration. This appeal followed.
Before addressing the merits of those issues posited for our review, we note a procedural problem in the brief. Appellant makes two assignments of error but presents only one argument in his brief. He explains this discrepancy by stating that "both [a]ssignments of (e)rror relate to the same facts and the same legal issues [and] for the purposes of this appeal they will be argued together." Appellant does not have that option. The provisions of App.R. 16(A)(7) require a separate argument for each assignment of error and an appellate court is free to disregard any such assignment which is not argued separately. See App. R. 12(A)(2). This court would be well within its authority to disregard both assignments of error and affirm the conviction below on that basis alone. See Park v. Ambrose (1993), 85 Ohio App.3d 179, 186; State v. Newberry (1991), 77 Ohio App. 818, 820; State v. Houseman, (1990), 70 Ohio App.3d 499, 507. The interests of justice, nevertheless, compel us to address the merits of this appeal. However, in that appellant has combined both assignments of error far purposes of his argument, we shall do the same with our analysis.
Turning now to the merits of this case, it should be noted at the outset that there is no question that the material sold to the undercover deputies was not a controlled substance. The parties stipulated to that effect prior to the hearing below and their appellate briefs are in agreement on this point. The real issue in the cause sub judice is whether a criminal defendant may be charged and convicted with trafficking in a controlled substance even though such a substance was never sold and defendant, purportedly, never intended to make such a sale in the first place.
The provisions of R.C. 2925.03(A)(5) state, in pertinent part, that "[n]o person shall knowingly ... [s]ell or offer to sell a controlled substance..." (Emphasis added.) Our attention is directed to appellant's testimony at the hearing below where he asserted that he and Mr. Lusk had planned on "scamming" the undercover deputies all along. Appellant further stated that the material sold by them was only perforated construction paper dabbed with water to give the appearance that recently manufactured LSD was still drying. Given this evidence of his intention to "scam" the undercover deputies, appellant contends that he cannot be shown to have knowingly sold, or offered to sell, a controlled substance and that he lacked the requisite mens rea to be convicted under R.C. 2925.03(A)(5). We disagree.
Even assuming that appellant's underlying legal premise is correct, and that a drug dealer who intentionally defrauds a customer cannot be convicted under this statute, there would still be the issue of whether that was, in fact, the dealer's true intent. Appellant would have us, and the lower court, accept that this was the case ipso facto on his testimony alone. However, this would be a factual inquiry subject to the same standards and principles as any other factual inquiry at a trial or hearing.
It is well settled that the determination of witness credibility is for the trier of fact. See State v. Grant (1993), 67 Ohio St.3d 465, 477; State v. Rojas (1992), 64 Ohio St.3d 131, 139; State v. DeHass (1968), 10 Ohio St.2d 230 at paragraph one of the syllabus. The trier of fact is not required to accept, as true, the testimony of a witness merely because it is uncontroverted. See State v. Caldwell (1992), 79 Ohio App.3d 667, 680. Rather, it is free to believe all, part or none of the testimony of each witness who appears before it. State v. Nichols (1993), 85 Ohio App.3d 65, 76; State v. Harriston (1989), 63 Ohio App.3d 58, 63. The trier of fact must consider the demeanor of the witness, the manner in which he testifies and this interest in the outcome of the case when weighing credibility. See State v. Chism (1993), 92 Ohio App.3d 317, 322- 323. We are ever cognizant that a lower court is in a better position to observe the witness and consider those factors than is an appellate court. See Myers v. Garson (1993), 66 Ohio St.3d 610, 615; Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80. Thus, considerable deference must be given to that process below.
Appellant's testimony at the hearing was clear that, from the outset, he had intended to sell the undercover deputies something other than a controlled substance. However, the trial court was not required (and, in fact, may not have) accepted as true appellant's explanation as to his original intent and motive. That fact is not immediately apparent from the journal entry overruling his motion to dismiss. But, given the presumption of correctness which must attach to all trial court proceedings, we would be hard pressed to reverse the judgment below when the court may not have even have believed appellant's testimony.
This problem notwithstanding, we are also unpersuaded of the conceptual accuracy of appellant's underlying legal premise. The provisions of R.C. 2925.03(A)(5) state, as aforesaid, that "[n]o person shall knowingly ... [s]ell or offer to sell a controlled substance ..." (Emphasis added.) The critical issue in this case boils down to determining which words or phrases in that statute are modified by the adverb "knowingly." The gravamen of appellant's position is that "knowingly" modifies the phrase "controlled substance" such that a person could not be prosecuted under R.C. 2925.03(A)(5) unless that person knows that the material he is selling, or offering for sale, is in fact a controlled substance. We disagree.
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