State v. BlackState v. Black
Timothy J. McKenna, for Defendant-Appellant.
Please note: This case has been removed from the accelerated calendar.
FISCHER, Judge.
{¶1} Defendant-appellant Lonnie Black appeals his multiple convictions for drug and firearm-related crimes that resulted in the imposition of a combined 41-year prison term by the trial court. For the reasons that follow, we overrule Black‘s seven assignments of error, and we affirm the judgment of the trial court.
Factual Background
{¶2} On May 5, 2009, Cincinnati police officers Jacob Wloszek and Josh Schrage responded to an alleged burglary at an apartment building on Myrtle Avenue. During the investigation, Officer Wloszek found a dark-colored bag in the yard outside the apartment building. A “Cheez-It” box and a “Capri Sun” box inside the bag had been filled with what was later determined to be over 100 grams of crack cocaine. An envelope inside the bag had “Black, Lonnie” written on it.
{¶3} The officers removed the crack cocaine from the bag, placed the bag back in the yard, and surveyed the apartment building from inside their unmarked vehicle. The officers then saw a black male walk out of the building from a third-floor apartment. The male stared in the direction of the bag and then began walking around the block. The male walked around the block twice, and each time he stared in the direction of the bag as he passed. The male then disappeared into a wooded area.
{¶4} The officers then went to the third-floor apartment and knocked on the door. Andrea Thomas, a resident of the apartment, answered the door and gave the officers consent to search her apartment. Inside her apartment, the officers discovered a collection of drugs that included cocaine, heroin, marijuana, and
{¶5} Thomas testified that she knew nothing about the drugs, and that, besides herself and Black, only her six-year-old son stayed at the apartment on a regular basis. Thomas testified that Black had been at the apartment that evening and had gone for a jog during the early-morning hours. A few minutes after Black had left, Black had called Thomas and told her that the police were outside and that he was leaving.
{¶6} Inside the apartment, the officers also found court-related documents from the Greene County Jail and the Fairborn Municipal Court with Black‘s name on them. One of the court documents indicated that Black had been charged with felony drug trafficking. Two other court documents indicated that Black had been charged with possession of drugs and possession of criminal tools and had paid fines for both of those offenses.
{¶7} The night after the drugs were found at Myrtle Avenue, Thomas‘s sister, Retina Thomas, testified that she went to her sister‘s apartment to collect some of her sister‘s belongings. Black came to the apartment while Retina Thomas and her son were there. Black began screaming, “[W]here my shit? Where my bag at?”1 Retina Thomas testified that the confrontation ended soon after Black punched Retina Thomas‘s son.
{¶8} After further investigation by Cincinnati police officers, Black‘s fingerprints were found on the “Cheez-It” box and the envelope that were inside the bag found in the yard. Also, Officers Wloszek and Schrage identified Black as the
{¶9} On May 13, 2009, Cincinnati police officer Richard Christoph responded to a possible drug deal at a car repair shop on Gilbert Avenue. When Officer Christoph arrived at the shop, he saw Black get out of a Cadillac and walk toward a group of men, but Black turned around and started walking back toward the Cadillac when he saw Officer Christoph. Suspecting criminal activity, Officer Christoph held the suspects until other officers arrived.
{¶10} Officers Chantia Pearson and Robert Pope arrived to assist Officer Christoph. Officer Christoph then determined that Black had a warrant out for his arrest. Officer Pearson read Black his Miranda2 rights and then asked Black if he had anything on him or in the Cadillac that should not be there. Black responded that there might be something in a jacket inside the car, but he responded, “It ain‘t mine.”3 Officer Pearson found over 100 grams of crack cocaine in the jacket.
Procedural History
{¶11} In the case numbered B-0903419, Black was indicted on the following counts related to the May 5, 2009, incident at the Myrtle Avenue apartment: (1) trafficking in cocaine, (2) possession of cocaine, (3) trafficking in cocaine, (4) possession of cocaine, (5) trafficking in heroin, (6) possession of heroin, (7) trafficking in marijuana, (8) aggravated possession of drugs, and (9) having a weapon while under a disability. Gun specifications accompanied counts one through seven, and major-drug-offender specifications accompanied counts one and two. Counts one and two involved the crack cocaine found in the bag outside the
{¶12} In the case numbered B-0903822, Black was indicted on the following counts related to the May 13, 2009, incident on Gilbert Avenue: (1) trafficking in cocaine with a major-drug-offender specification, and (2) possession of cocaine with a major-drug-offender specification.
{¶13} Black‘s cases were consolidated for a jury trial. Black was found guilty in the case numbered B-0903419 on all counts, but not on the gun specifications accompanying counts one and two. The trial court merged the possession and trafficking counts, as well as the major-drug-offender specifications. It did the same for the gun specifications. The court ordered that the sentences for the primary offenses in counts one through nine be served concurrently. It then sentenced Black to ten years in prison for one major-drug-offender specification and to one year in prison for one gun specification. Those sentences were made consecutive to the sentences for the primary offenses, for a total of 21 years in prison.
{¶14} Black also was found guilty on the two counts in the case numbered B-0903822, and the trial court merged those counts. The trial court sentenced Black to ten years in prison on the major-drug-offender specification, which was made consecutive to the ten-year sentence on count one, for a total of 20 years in prison. The court then ordered that the aggregate sentences in the two cases be served consecutively.
Other-Acts Evidence
{¶15} In Black‘s first assignment of error, he claims that the trial court abused its discretion in admitting the court documents from the Greene County Jail
{¶16} A review of the record shows that the court documents were relevant in that they tended to prove that Black lived at the Myrtle Avenue apartment, and the trial court admitted the evidence with a limiting instruction that evidence of other bad acts could not be used to prove Black‘s character or to show that Black had acted in conformity with that character.
{¶17} But we need not determine whether the trial court erred in admitting the unredacted court documents because, even if the admission of the documents was in error, such error was harmless. “Error in the admission of evidence in
{¶18} The police officers testified that they saw Black come out of Thomas‘s apartment on May 5, 2009, and that Black kept staring in the direction of the bag that had been filled with crack cocaine. The evidence further showed that Black‘s name and fingerprints were on the envelope inside the bag, and that Black‘s fingerprints were on the “Cheez-It” box that contained crack cocaine. Thomas testified that Black lived with her and her minor son in the apartment, and that she knew nothing about the drugs inside her apartment. Thomas also testified that Black had been at the apartment on May 5, 2009, and that Black had later called her to tell her that the police were outside the apartment and that he was leaving. Furthermore, Retina Thomas testified that, the day after the police arrested Thomas, Black was outside the apartment screaming “where my shit at?”
{¶19} Therefore, in light of the other evidence presented at trial supporting Black‘s convictions arising from the incident at Myrtle Avenue, the limiting instruction given by the trial court, and the relevance of the court documents, we hold that even if the admission of the documents was in error, any error was harmless beyond a reasonable doubt. We overrule Black‘s first assignment of error.
Sufficiency and Weight of the Evidence
{¶20} We address Black‘s second and third assignments of error together. In Black‘s second assignment of error, he argues that there was insufficient evidence
{¶21} Black argues his second and third assignments of error together, and he essentially argues that no evidence was presented to put the drugs “in the hands” of Black. But, as we have already pointed out, the state produced evidence linking Black to the drugs inside the Myrtle Avenue apartment in the form of testimony from both Thomas sisters, as well as other evidence showing that Black lived at the apartment. As to the crack cocaine found outside the apartment building, the state presented evidence that Black‘s fingerprints were found on the envelope and on the “Cheez-It” box in the bag containing the crack cocaine. The officers who recovered the drugs testified that Black came out of the apartment and stared multiple times in the direction of the bag before leaving the area.
{¶22} As to Black‘s convictions arising out of the incident at the car repair shop on Gilbert Avenue, Officer Pearson found a large amount of crack cocaine in a jacket inside the Cadillac that Black had been driving, and that discovery was made after Black had told Officer Pearson that she might find something in the jacket “but
Ineffective Assistance of Counsel
{¶23} In Black‘s fourth assignment of error, he argues that he was denied the effective assistance of counsel because his trial counsel failed to renew his Crim.R. 29 motion for an acquittal at the close of all the evidence. This argument is without merit. To prevail on a claim of ineffective assistance of counsel, an appellant must show that trial counsel‘s performance was deficient, and that the outcome of the proceedings would have been different but for counsel‘s deficient performance.11 “The failure to renew an acquittal motion does not constitute ineffective assistance of counsel when the motion would have been futile.”12 Given the overwhelming evidence against Black, we hold that a renewal of an acquittal motion at the close of all the evidence would have been futile. Therefore, his fourth assignment of error is overruled.
Cruel and Unusual Punishment
{¶24} In Black‘s fifth assignment of error, he argues that his combined sentence of 41 years in prison constitutes cruel and unusual punishment. More specifically, Black argues that his sentence does not comply with the seriousness and recidivism factors listed in
{¶26}
{¶27} After Foster, in State v. Dillard,16 the Second Appellate District held that
{¶28} Other appellate districts, however, have taken a different view of the effect Foster had on
{¶29} We are inclined to follow the Tenth Appellate District, as well as the majority of other appellate districts, in holding that
{¶30} Because the trial court in this case could not constitutionally make judicial findings of fact with respect to seriousness and recidivism, the court did not err in imposing an additional prison term for two of Black‘s major-drug-offender specifications pursuant to
Failure to Merge Major-Drug-Offender Specifications
{¶31} In Black‘s sixth assignment or error, he argues that the trial court should have merged all the major-drug-offender specifications under the two case numbers for purposes of sentencing. In support of this argument, Black relies on
Cumulative Error
{¶32} Finally, in Black‘s seventh assignment of error, he contends that the cumulative effect of the trial court‘s errors denied him a fair trial. In support of this argument, Black points to the following alleged errors: in opening statements, the prosecutor made an inappropriate remark indicating that Black had previously been convicted of drug trafficking; the trial court admitted the court documents found in the Myrtle Avenue apartment; Black‘s trial counsel failed to renew his Crim.R. 29 motion for an acquittal at the close of evidence; Officer Pope‘s testimony
{¶33} A defendant may be deprived of a fair trial by the cumulative effect of errors by the trial court, even where each error, standing alone, would not warrant reversal.23 To succeed on such a claim, Black must demonstrate that a reasonable probability exists that the outcome of the trial would have been different absent the alleged errors.24 As we have already stated, the record amply supports Black‘s convictions despite any alleged errors. Therefore, we overrule Black‘s seventh assignment of error.
{¶34} Consequently, the judgment of the trial court is affirmed.
Judgment affirmed.
DINKELACKER, P.J., and HILDEBRANDT, J., concur.
Please Note:
The court has recorded its own entry this date.