State v. Maxie

• Decision Date: 09 March 2015
• Docket Number: CASE NO. 9-13-73
• Citation: 2015 Ohio 816
• Court: Ohio Court of Appeals
• Parties: STATE OF OHIO, PLAINTIFF-APPELLEE, v. DEREK A. MAXIE, DEFENDANT-APPELLANT.

2015 Ohio 816

STATE OF OHIO, PLAINTIFF-APPELLEE, v. DEREK A. MAXIE, DEFENDANT-APPELLANT.

CASE NO. 9-13-73

COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY

March 9, 2015

OPINION

Appeal from Marion County Common Pleas Court

Trial Court No. 13-CR-0440

Judgment Affirmed

APPEARANCES:

Robert C. Nemo for Appellant

Adam D. Meigs for Appellee

WILLAMOWSKI, J.

Introduction

{¶1} Defendant-appellant, Derek Maxie ("Maxie"), brings this appeal from the judgment of the Marion County Court of Common Pleas, which entered his conviction after a jury found him guilty of two counts of trafficking in cocaine, with forfeiture specifications as to each count for the use of his 2000 Ford Explorer as an instrumentality of the crimes. Maxie challenges the jury's findings of guilty and of forfeiture as being against the manifest weight of the evidence. He further claims that the trial court erred to his prejudice in failing to grant his motion for acquittal, by assisting the State in the presentation of its case, and by failing to grant a mistrial as a result of the State's allegedly prejudicial comments in its closing statement. Maxie additionally asserts that his trial counsel was ineffective. For the reasons that follow, we affirm the trial court's judgment.

Facts and Procedural History

{¶2} On May 10, 2013, Detective Mark Elliot ("Detective Elliot"), from the Marion City Police Department, who is a member of the Marion Metropolitan Drug Task Force ("MARMET"), was contacted by a confidential informant ("CI"). The CI told Detective Elliot that she would be able to purchase drugs from Maxie. The CI informed Detective Elliot that she owed Maxie $50.00, so shewould need to settle the debt before purchasing narcotics. A controlled buy operation was scheduled for the same day.

{¶3} The CI called Maxie and arranged a meeting to buy $50.00 worth of crack cocaine. The phone call was recorded by MARMET. The CI was given $100.00, which included $50.00 to settle the prior debt and $50.00 to complete the purchase. The CI was equipped with a wire and a video camera to record the transaction. Then, one of MARMET employees, Amanda Snyder ("Officer Snyder"), drove the CI to the meeting location, which was a parking lot of Whitey's bar, located within 1000 feet of a school. Several other MARMET detectives were there, prepared to observe the meeting from a distance and to listen to the audio of the events in real time. The CI exited the vehicle and walked up to Maxie's car. The meeting between the CI and Maxie lasted a few seconds. After that, the CI returned to the car and Officer Snyder took her back to meet with Detective Elliot. The CI gave Detective Elliot the drugs and completed paperwork about the transaction.

{¶4} The CI offered to make another buy on the same day. Therefore, she placed another phone call to Maxie, which was again audio-recorded by MARMET. Although the CI wanted to purchase another $50.00 worth of drugs, Maxie told her that he only had $70.00 worth of drugs available, which he was willing to sell to her for $60.00. A meeting to purchase the drugs was set up at the Duke Station on Fairground Street. Officer Snyder again drove the CI to themeeting location, where Maxie was waiting. The CI again left the vehicle and met with Maxie alone. The meeting lasted a few seconds and MARMET detectives observed the encounter from a distance and listened to the live audio. The CI returned to the vehicle to be taken back to meet with Detective Elliot, where she gave Detective Elliot the narcotics allegedly purchased from Maxie and filled out a report.

{¶5} As a result of the evidence collected during the two controlled buys, Maxie was indicted on two counts of trafficking in cocaine. Count I charged Maxie with trafficking in cocaine "on school premises, in a school building, or within 1,000 feet of the boundaries of any school premises," in violation of R.C. 2925.03(A)(1)/(C)(4), a felony of the fourth degree. (R. at 22.) Count II charged Maxie with trafficking in cocaine in violation of R.C. 2925.03(A)(1)/(C)(4), a felony of the fifth degree. The indictment contained forfeiture specifications for Maxie's 2000 Ford Explorer, which was alleged to have been used as an instrumentality of the crimes.

{¶6} Maxie pled not guilty and the matter proceeded to trial. The trial was divided into two stages. The first stage involved the evidence concerning trafficking in cocaine. When the jury found Maxie guilty on both counts of trafficking, the trial court allowed for presentation of additional evidence concerning forfeiture specifications. The jury then deliberated again and found that forfeiture was warranted as to each count. The trial court sentenced Maxie toa term of twelve months in prison on each of the counts, to be served concurrently, for a total sentence of twelve months. The trial court then ordered forfeiture of Maxie's 2000 Ford Explorer to the State of Ohio. Maxie now appeals the trial court's judgment raising six assignments of error for our review.

Assignments of Error

1. THE TRIAL COURT ERRED IN FAILING TO GRANT APPELLANT'S MOTION FOR ACQUITTAL.

2. THE JURY'S GUILTY VERDICTS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

3. THE JURY ERRED IN FINDING THAT UNDER THE SPECIFICATION FILED, APPELLANT'S AUTOMOBILE SHOULD HAVE BEEN FORFEITED.

4. APPELLANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF THE TRIAL COURT ASSISTING APPELLEE IN THE PRESENTATION OF ITS CASE.

5. APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

6. THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO GRANT A MISTRIAL AS A RESULT OF APPELLEE'S PREJUDICIAL COMMENTS IN CLOSING STATEMENT USING THE GOLDEN RULE ARGUMENT.

First and Second Assignments of Error—

Evidentiary Support for Maxie's Convictions

{¶7} Although Maxie's first assignment of error is labeled as a challenge to the trial court's failure to grant his Crim.R. 29 motion for acquittal, his only argument here concerns credibility of the CI's testimony. Yet, a Crim.R. 29motion challenges the sufficiency of the evidence only and does not concern the issues of credibility, which are for the jury to weigh. State v. Kline, 11 Ohio App. 3d 208, 213, 464 N.E.2d 159 (6th Dist.1983) ("In determining whether appellant's motion [for acquittal] should have been granted, our analysis of the evidence focuses not upon its weight or credibility, which are ordinarily matters for the jury, but rather its quantitative sufficiency to establish beyond a reasonable doubt each element of the offense.") (Emphasis sic.); State v. Barnes, 3d Dist. Henry No. 7-79-13, 1980 WL 352051, *8 (Nov. 14, 1980) (holding that the trial court "did not commit prejudicial error in overruling the motion for acquittal at the close of all the evidence" where the evidence was in conflict because "the issues of weight and credibility [are] for the jury"). Therefore, Maxie's arguments under this assignment of error should properly be made in the discussion of his second assignment of error, which challenges the manifest weight of the evidence.

{¶8} The proper standard for deciding a Crim.R. 29 motion for acquittal focuses on the sufficiency of the evidence. State v. McMillen, 113 Ohio App.3d 137, 140, 680 N.E.2d 665 (3d Dist.1996). When reviewing a criminal case for the sufficiency of the evidence, "our inquiry focuses primarily upon the adequacy of the evidence; that is, whether the evidence submitted at trial, if believed, could reasonably support a finding of guilt beyond a reasonable doubt." In re Willcox, 3d Dist. Hancock No. 5-11-08, 2011-Ohio-3896, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). Importantly, this test raises aquestion of law and does not allow us to weigh the evidence. In re Willcox at ¶ 10. In spite of the caption for this assignment of error, Maxie makes no arguments concerning the sufficiency of the evidence in his brief. Consequently, he has failed to comply with App.R. 16(A), which requires each assignment of error to be supported by an argument explaining "the reasons in support of the contentions, with citations to the authorities, statutes, and parts of the record on which appellant relies." App.R. 16(A)(7); See State v. Brocar, 2d Dist. Montgomery No. 21002, 2006-Ohio-5561, ¶ 12.

{¶9} In the second assignment of error, which is labeled as a challenge to the manifest weight of the evidence, Maxie states that he "incorporates by reference herein" the arguments made in the first assignment of error. (App't Br. at 7.) As stated above, the arguments made in the first assignment of error concern the credibility of the CI's testimony. As a result of this incorporation and of Maxie's failure to support the first assignment of error with any arguments concerning the sufficiency of the evidence, the two assignments of error effectively make the same challenge: that the jury verdicts were against the manifest weight of the evidence due to the allegedly doubtful credibility of the CI's testimony. Therefore, we address the two assignments of error together under the standard for the manifest weight of the evidence.

{¶10} The question of the manifest weight of the evidence concerns an "effect in inducing belief" and as such, it is not subject to a mathematical analysis.Thompkins at 387. When reviewing a conviction challenged as being against the manifest weight of the evidence, an appellate court acts as a "thirteenth juror" and may disagree with the jury's resolution of the conflicting testimony. Id., quoting Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). But the appellate court must give due deference to the findings of the jury, because

[t]he fact-finder occupies a superior position in determining credibility. The fact-finder can hear and see as well as observe the body language, evaluate voice inflections, observe hand gestures, perceive the interplay between the witness and the examiner, and watch the witness's reaction to exhibits and the

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