2022 Ohio 1973
Ohio Ct. App.2022Background:
- Appellant Takye Fenderson was indicted for possession and trafficking of a fentanyl-related compound and later for corrupting another with drugs after Joseph Morgan died of fentanyl toxicity; a weapons charge was later acquitted and a receiving-stolen-property count dismissed.
- Police used Joseph’s phone to arrange a controlled buy; when the suspected seller replied, officers observed Fenderson arrive in a silver car, act as if meeting someone, and leave a running car with pills visible on the center console.
- Officers detained Fenderson, his phone rang when detectives called the buy number, and ten pills (M 30) seized from the car tested positive for fentanyl; two similar pills were found in Joseph’s clothing postmortem; toxicology attributed death to fentanyl.
- Fenderson retained and changed counsel multiple times pretrial; a last-minute suppression motion was filed one week before trial and denied as untimely; counsel moved for continuances and to withdraw at various points.
- A four-day jury trial resulted in convictions for possession, trafficking, and corrupting another with drugs; at sentencing the court imposed prison terms and failed to merge possession and trafficking; appeal followed.
Issues:
| Issue | State's Argument | Fenderson's Argument | Held |
|---|---|---|---|
| Whether possession and trafficking convictions should merge | Agreed they are allied offenses and should merge | Argued they arose from same conduct and should merge | Court agreed: convictions for possession and trafficking must merge; remand for resentencing |
| Whether mistrial was required after a courthouse altercation observed by jurors | Curative instruction and individual voir dire of jurors cured any prejudice | Argued jurors (including Juror No. 6/alternate) did not on-record assent; event was prejudicial | Denied mistrial: jurors affirmed ability to follow evidence; presumption jurors follow instructions; no abuse of discretion |
| Whether denial of last‑minute continuance was an abuse of discretion | Trial court: denial proper given long notice, subpoenas, jurors present, and defendant contributed to delay | Argued he reasonably believed unrepresented and counsel unprepared | Denied: court applied Unger factors; no abuse of discretion |
| Whether counsel was ineffective for filing suppression motion late | State: even if untimely, suppression would fail because stop, arrest, and vehicle search were lawful | Fenderson: motion would have succeeded; evidence should have been suppressed | Denied ineffective-assistance claim: Terry stop and plain-view automobile-exception gave probable cause; no reasonable probability suppression would have been granted |
| Sufficiency/manifest weight of evidence for convictions | Argued texts, meeting, pills in car, phone link, and toxicology establish possession, trafficking, and furnishing resulting in death | Argued no direct witness to sale, pills were in friend’s car, texts ambiguous | Convictions affirmed: evidence sufficient and not against manifest weight |
| Whether conviction by an all‑white jury violated due process/equal protection | State: argued precedent permits conviction by an all-white jury absent discriminatory jury selection evidence | Fenderson: asserted unfairness of all-white jury (no developed argument) | Not addressed substantively: assignment waived for failure to develop argument |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (standard for ineffective assistance of counsel)
- Terry v. Ohio, 392 U.S. 1 (U.S. 1968) (permitting investigatory stops on reasonable suspicion)
- United States v. Arvizu, 534 U.S. 266 (U.S. 2002) (totality-of-circumstances for reasonable suspicion)
- Alabama v. White, 496 U.S. 325 (U.S. 1990) (content and reliability of police information for reasonable suspicion)
- State v. Tidwell, 165 Ohio St.3d 57 (Ohio 2021) (discussing reasonable suspicion and Terry standard)
- State v. Moore, 90 Ohio St.3d 47 (Ohio 2000) (automobile-exception to warrant requirement)
- Maryland v. Dyson, 527 U.S. 465 (U.S. 1999) (warrantless vehicle search permitted when probable cause exists)
- Pennsylvania v. Labron, 518 U.S. 938 (U.S. 1996) (vehicle searches permitted where car is readily mobile and probable cause exists)
- State v. Jenks, 61 Ohio St.3d 259 (Ohio 1991) (standard for sufficiency of evidence)
- State v. Unger, 67 Ohio St.2d 65 (Ohio 1981) (factors governing continuance requests)
- State v. Ruff, 143 Ohio St.3d 114 (Ohio 2015) (R.C. 2941.25 and allied-offenses merger analysis)