The fact that Mr. Spivery responded to Crystal’s text message with “Ok,” followed by an address where Crystal could meet him to complete the sale, rather than with an express written offer to sell Crystal drugs using basic contract language, is of no consequence when considering the illegality of the offer being made.
State v. Spivery
2023 – Ohio – 1603
Twelfth District Appellate Court
Clermont County, Ohio
May 15, 2023
From July 26 to 28, 2022, the trial court held a three-day jury trial on the matter. During trial, the state presented evidence that Mr. Spivery had sent text messages to Crystal [*Crystal is a pseudonym as the court did not use the meth consumer’s real name] offering to sell her methamphetamine at an address located in Hamilton County, Ohio while Crystal was physically present, receiving, and responding to Mr. Spivery’s text messages while in Clermont County, Ohio.
Mr. Spivey alleged that Crystal was not in Clermont County when she texted him her methamphetamine shopping list by text message. Unfortunately for Mr. Spivey the cell phone data was distinguishable from his allegation.
The state also presented evidence that the text message exchanges between Mr. Spivery and Crystal ultimately resulted in Mr. Spivery selling five ounces of methamphetamine to Crystal on January 6, 2020, with Mr. Spivery selling an additional six ounces of methamphetamine to Crystal on January 7, 2020. The state provided further evidence that both sales occurred in a parking lot located in Springdale, Hamilton County, Ohio. Following deliberations, the jury returned a verdict finding Mr. Spivery guilty of both charges and their accompanying forfeiture specifications. Several weeks later, on September 12, 2022, the trial court held a sentencing hearing where it sentenced Mr. Spivery to serve an aggregate mandatory minimum term of ten years in prison with a maximum aggregate term of thirteen years in prison, less 132 days of jail-time credit. The trial court also ordered the forfeiture of the vehicle Mr. Spivery used to effectuate both the January 6 and January 7, 2020, drug sales, as well as the $14,007 in cash found in Mr. Spivery’s possession at the time of his arrest. Mr. Spivery now appeals his conviction, raising two assignments of error for review.
Appeal
Can a Suspect be Convicted for Offer to Sell Methamphetamine if the Offer was by Text Message?
Initially, Mr. Spivery argues the text message exchange between himself and Crystal that led to the January 6, 2020, sale was insufficient to prove he “offered” to sell Crystal drugs in violation of O.R.C. §2925.03(A)(1). Therefore, according to Mr. Spivery, his conviction for Count 1, second-degree felony aggravated trafficking in drugs, must be reversed. We disagree. The term “offer” as used in O.R.C. §2925.03(A)(1) is not statutorily defined. The Ohio Supreme Court, however, has defined the term “offer” to mean “‘to declare one’s readiness or willingness’” to sell a controlled substance. State v. Scott, 69 Ohio St.2d 439, 440 (1982), quoting Webster’s New Collegiate Dictionary (1976). This court has also defined the term “offer” to mean “to declare one’s readiness or willingness to sell a controlled substance or to present a controlled substance for acceptance or rejection.” State v. Aldrich 2008-Ohio-1362.
Given these definitions, and when considering the totality of the circumstances presented in this case, we find the state provided sufficient evidence to prove Mr. Spivery “offered” to sell drugs to Crystal on January 6, 2020. This offer occurred after Crystal contacted Mr. Spivery via text message and stated that she was “36 mins out” and in “need” of five ounces of methamphetamine. The fact that Mr. Spivery responded to Crystal’s text message with “Ok,” followed by an address where Crystal could meet him to complete the sale, rather than with an express written offer to sell Crystal drugs using basic contract language, is of no consequence when considering the illegality of the offer being made.
What matters is that, under the facts and circumstances of this case, which includes evidence that Mr. Spivery had sold Crystal drugs multiple times prior to the January 6, 2020 sale, both Mr. Spivery and Crystal knew that an agreement had been reached via text message for Mr. Spivery to sell Crystal five ounces of methamphetamine once she arrived at the address Mr. Spivery had provided to her.
Accordingly, Mr. Spivery’s first argument lacks merit.
Mr. Spivery’s Second, Alternative Argument
Was Clermont County the Proper Legal Venue?
Alternatively, Mr. Spivery argues the state failed to provide sufficient evidence to prove Crystal was physically present within Clermont County when he responded to her text message offering to sell her drugs on January 6, 2020. This lack of evidence, according to Mr. Spivery, renders Clermont County an improper venue for that offense, thereby requiring his conviction for Count 1, second-degree felony aggravated trafficking in drugs, be reversed. We again disagree.
‘Venue commonly refers to the appropriate place of trial for a criminal prosecution within a state.’ State v. Baker, 2020- Ohio-2882, quoting State v. Meridy 2005- Ohio-241.
Venue is established where there is a “sufficient nexus” between the defendant and the county where the trial is held. State v. Jordan, 2015-Ohio-575. Therefore, “[a]s long as there is a sufficient nexus between the defendant and the county of the trial, venue is satisfied.” State v. Smith, 2012-Ohio-4644.
Upon review, we find the record in this case establishes the requisite “sufficient nexus” necessary to render Clermont County a proper venue to try and convict Mr. Spivery for second-degree felony aggravated trafficking in drugs as set forth in Count One of the indictment. This is because, despite Mr. Spivery’s claims, the record contains sufficient evidence to prove Crystal was in Clermont County when Mr. Spivery sent a text message to Crystal offering to sell her five ounces of methamphetamine on January 6, 2020. This is evidenced by the data retrieved from a GPS tracker attached to Crystal’s car that indicated Crystal was in Clermont County when she initially text messaged Mr. Spivery stating that she was “36 mins out” and asking Spivey whether he could sell her five ounces of methamphetamine that day. Mr. Spivery responded “Ok” to Crystal’s text message a few minutes later at a time when Crystal would have still been physically present within Clermont County.
Therefore, because the record in this case establishes the requisite “sufficient nexus” to render Clermont County a proper venue to try Mr. Spivery for Count 1, second-degree felony aggravated trafficking in drugs, Mr. Spivery’s second, alternative argument also lacks merit.
Different Sale, Same Legal Argument, Same Decision
The Text Messages were an ‘Offer to Sell’
Mr. Spivery’s Third Argument
Lastly, Mr. Spivery argues the text message exchange between himself and Crystal that led to the January 7, 2020 sale was insufficient to prove he “offered” to sell Crystal drugs in violation of O.R.C. §2925.03(A)(1), thereby requiring his conviction for Count 2, first-degree felony aggravated trafficking in drugs, be reversed. However, just as with the text message exchange between Mr. Spivery and Crystal that led up to the January 6, 2020 sale, the state provided sufficient evidence to prove Mr. Spivery also offered to sell drugs to Crystal on January 7, 2020. This offer occurred after Crystal contacted Mr. Spivery via text message, while physically present within Clermont County, Ohio, and asked Mr. Spivery if he could sell her an additional six ounces of methamphetamine.
Mr. Spivery responded a few seconds later, “Ok.” Mr. Spivery then sent another text message to Crystal instructing her to meet him at the “same place” where they had met the day before, on January 6, 2020.7 Again, just as with the January 6, 2020 sale, the fact that Mr. Spivery responded to Crystal’s text message with “Ok,” followed by instructions on where to meet, rather than an express written offer to sell Crystal drugs using basic contract language is of no consequence when considering the illegality of the offer being made. This is because, just as with the January 6, 2020 sale, both Mr. Spivery and Crystal knew an agreement had been reached for Mr. Spivery to sell Crystal an additional six ounces of methamphetamine on January 7, 2020 at the same place where they had met to complete the January 6, 2020 sale.
Therefore, just as with Mr. Spivery’s first argument challenging the sufficiency of the evidence regarding the January 6, 2020 sale, Mr. Spivery’s third argument challenging the sufficiency of the evidence as it relates to the January 7, 2020 sale likewise lacks merit.
Holding
For the reasons outlined above and finding no merit to any of the arguments raised by Mr. Spivery herein, Mr. Spivery’s two assignments of error challenging his conviction for two counts of aggravated trafficking in drugs, one a second-degree felony and the other a first-degree felony, are overruled.
Information for this article was obtained from State v. Spivey, 2023 – Ohio – 1603.
State v. Spivey, 2023 – Ohio – 1603 was issued by the Twelfth District Appellate Court and is binding in the follow Ohio Counties: Brown, Butler, Clermont, Clinton, Fayette, Madison, Preble and Warren.
Lessons Learned:
- Totality-of-the-Circumstances Doctrine: The key to the investigation and successful prosecution of this case focused on the Totality-of-the-Circumstance Doctrine. If the evidence provided a singular text exchange where Crystal asked Mr. Spivey for five ounces of methamphetamine and that she was thirty-six minutes out to which Mr. Spivey replied O.K. – that may not have been enough to convict Mr. Spivey of Aggravated Trafficking. However, because Mr. Spivey had previous sales of methamphetamine to Crystal the totality demonstrated the on-going nature of Mr. Spivey’s illicit business enterprise. The key takeaway is that law enforcement must paint the picture of the criminal enterprise of suspects so that the prosecutor, judge and jury can get a full picture.
- Where was Crystal? Spivey made a feeble argument that Crystal was not in Clermont County during the texting. However, the tower dump of cell phone information demonstrated that Crystal was within Clermont County. This too is critically important for law enforcement to consider the electronic footprint left by recidivists that lead from the place of criminal activity to the courtroom and ultimately to jail or prison.
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