ASSIGNMENT OF ERROR SEVEN
"Due process is denied an accused where the conviction has been obtained upon evidence insufficient as a matter of law."
James Williams says [*64] there is insufficient evidence on the weight of the narcotic drugs involved in the offenses charged in counts five, fifteen and sixteen. All three counts contain an allegation of weight equal to or exceeding three times bulk amounts. The state contends, and we agree, that these allegations are surplusage and do not affect the convictions. R.C. 2941.08(I).
Williams also argues that his convictions on counts five, fifteen and sixteen rest upon the uncorroborated testimony of an accomplice or co-conspirator. Count fifteen, possession for sale of a narcotic drug, covers an incident testified to by Thomas Wilson. Wilson had been selling heroin for Williams since late 1972. In late spring of 1973, Wilson went to Williams' house on Willow Street to pick up heroin after Williams told him to come over. There Wilson saw Daniel Burch give Williams a plastic bag containing white powder which Burch had brought to the house. Williams gave Wilson some of the powder to "check out." Wilson took the sample to his house on Cedar Street and discovered it contained heroin after injecting some into himself. Wilson told Williams the powder was "up to par."
If the jury believed Wilson, and the [*65] verdict shows that it did, it could not find anything else but that Williams himself possessed the heroin with the intent to sell it. There was no complicity and Wilson's testimony needed no corroboration.
Count sixteen also charges the possession for sale of a narcotic drug and covers an incident testified to by Carol Brantley. Around mid-June of 1976, Brantley accompanied Daniel Burch to Fayetteville and Goldsboro, North Carolina. The jury could conclude that Burch obtained heroin in Goldsboro from the Leslie Atkinson organization and had it taken to Williams' house at 277 West Long Street. Brantley and Burch went inside the house and Burch went upstairs. Williams arrived some 30-45 minutes later and went upstairs. Williams either came right down or remained upstairs for 15-20 minutes. When Williams came down, he told Brantley that Burch wanted her. Brantley went upstairs to the bathroom where Daniel Burch, wearing a gas mask and gloves, was using a scale to measure ounce portions of heroin from a plastic bag for transfer to small plastic bags. Brantley held the plastic bags over the scale. Williams came into the bathroom, but left immediately. Brantley and Burch then [*66] went to 811 Easter Avenue where Burch left his heroin.
This testimony shows Daniel Burch, rather than Williams, as the possessor of the narcotic. See, State v. Haynes, 25 Ohio St. 2d 264, 269-70 (1971). Conviction of Williams for aiding and abetting Burch requires corroboration of Brantley's testimony. R.C. 2923.03(D). There must be, "*** some other fact, circumstance, or testimony * * *" implicating Williams. State v. Myers, 53 Ohio St. 2d 74, 75 (1978). Finding no such evidence, we conclude that the conviction is against the manifest weight of the evidence.
Williams' participation in the conspiracy to possess narcotic drugs (count five) is shown by the testimony of Thomas Wilson, Carol Brantley, Shirley Williams, James Burdon and Alfred Oaks. Various exhibits buttress and extend the testimonies.
SECTION D - CASE 8890
(DANIEL BURCH)
ASSIGNMENT OF ERROR THREE
"It was reversible error for the trial court to deny Daniel D. Burch's motion to sever him from a joint trial."
We find no abuse of discretion on the trial court's part in overruling the motion for separate trial. State v. Perod, 15 Ohio App. 2d 115 (1968), paragraphs 2, 3 and 5 of the syllabus. [*67] Daniel Burch says he was unfairly tainted by the association at trial with the other defendants. Coming from Burch, this is not a colorable argument.
ASSIGNMENT OF ERROR FIVE
"The convictions of the defendant-appellant on counts five, fifteen and sixteen of the indictment are against the manifest weight of the evidence and should be reversed."
Daniel Burch says the offenses charged in counts five, fifteen and sixteen are unsupported by evidence of controlled substances in an amount equal to or exceeding three times bulk amount. This assignment is overruled for the reasons given under assignment of error seven in Section C.
ASSIGNMENT OF ERROR EIGHT
"It was error for the trial court to overrule the motion for mistrial by Daniel P. Burch based upon the prosecution's improper conduct during summation."
Daniel Burch says that the prosecutor commented on his failure to testify and made other inflammatory remarks. We have dealt with the latter argument under assignment of error five in Section C.
During Burch's opening statement it was stated that he would take the stand. He did not testify and, thus, invited comment on his abandoned promise. See, State v. Bridges, [*68]Summit No. 7628 (9th Dist. Ct. App., May 21, 1975). Further, there was no objection and the evidence on Burch's guilt is overwhelming.
More pages from the court records will be published here. Next issue, the Porsche with "dope" in it brought from Germany.
