Opinion
No. 72-748
Decided June 20, 1973.
Criminal procedure — Appeal — Evidence — Judgment of Court of Appeals affirmed, when.
APPEAL from the Court of Appeals for Athens County.
Appellant was convicted in the Common Pleas Court of Athens County, after a jury trial, on two counts of an indictment charging him with the sale of cannabis sativa to David Pence, in violation of R.C. 3719.20(B), and the unlawful possession of cannabis sativa for sale, in violation of R.C. 3719.20(A). The Common Pleas Court entered judgment upon the verdicts and overruled appellant's motion for new trial.
The Court of Appeals affirmed the judgment of conviction and overruled appellant's motion for reconsideration.
This matter first came before this court upon a motion for leave to appeal. On January 12, 1973, this court overruled the same. Thereafter, appellant filed a motion to reconsider our ruling on the motion for leave to appeal. Upon reconsideration, in a rare precedent, this court reversed itself and, on February 2, 1973, allowed the motion for leave to appeal, principally for an opportunity to review the entire record of the Common Pleas Court, since appellant had alleged misconduct of the prosecutor in the proceedings. On the previous motion the court had before it only the briefs of the state and of the appellant.
As disclosed by the record now before this court, at the trial the state introduced evidence that on May 16, 1969, appellant sold a package of material for $5.00 to one David Pence, who was identified as a special investigator for the Ohio Attorney General, on the porch of the Baker Center in the city of Athens, Ohio. The state also introduced evidence that the material sold was cannabis sativa and that the quantity sold was .9 of a gram. For his defense, appellant asserted an alibi, and produced seven witnesses who testified, in effect, that at the time of the alleged sale appellant, along with many other Ohio University students, was attending a concert by a musical group, called the Headstone Circus, at the Appalachian Lighthouse, which establishment was shown to be about two and one-half blocks from Baker Center.
Mr. Michael Nolan, prosecuting attorney, for appellee.
Messrs. Lavelle Yanity and Mr. L. Alan Goldsberry, for appellant.
An examination of the record fails to disclose misconduct on the part of the prosecutor. Certainly there was no affirmative showing by appellant that he was entitled to a new trial. The jury resolved the facts of the case and determined the credibility of the witnesses before it, which was its responsibility. The judgment of the Court of Appeals is affirmed for the reasons stated in the opinion of that court ( 29 Ohio App.2d 206).
Judgment affirmed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.