State v. BolesState v. Boles
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Julia R. Bates, Lucas County Prosecuting Attorney, and Lauren Carpenter, Assistant Prosecuting Attorney, for appellee.
Laurel A. Kendall, for appellant.
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OSOWIK, J.
Introduction
{¶ 1} Following a bench trial, the defendant-appellant, Nathaniel Boles, was convicted of trafficking and possession of heroin and crack cocaine by the Lucas County Court of Common Pleas. On appeal, Boles raises multiple trial-related errors and also argues that the trial court erred in denying his pretrial motions to suppress. Finding no error, we affirm.
{¶ 2} The following evidence was offered at trial. Toledo Police Detective Ken Heban works in the vice narcotics department. In 2016, Detective Heban learned from a confidential informant that Boles was “involved in a narcotics trafficking operation[] in the City of Toledo.” The informant was described as a person who “consistently provided reliable and accurate information.” So, Heban began an investigation of Boles and three of Boles’ “suppliers.” In August of 2016, Detective Heban observed Boles “make a narcotics transaction” on a city street corner.
{¶ 3} On September 5, 2016, Detective Heban learned that Boles was “going to be making a narcotics transaction in the afternoon.” Detective Heban “conducted a police records check” and learned that Boles had eight arrest warrants issued by the Toledo Municipal Court, which he confirmed were all “active.” Detective Heban was already familiar with the vehicle that Boles “was utilizing,” a rented Chrysler Pacifica, and he “prepared to go out and look for the vehicle” and apprehend Boles. Detective Heban requested assistance from his supervisor, Lieutenant Robert Furr and two other detectives. Because vice officers are dressed in “plain-clothes” and drive unmarked vehicles, Detective Heban also requested assistance from the SWAT unit which uses “limited marked vehicles [that are equipped with] lights and sirens” and officers who are “in full uniform.” Detective Heban‘s purpose in assembling his team that day was to serve Boles with the warrants. But, he agreed that if Boles was also found to be holding drugs, that would be “icing on the cake.”
{¶ 5} Sergeant Russell was driving a SWAT vehicle. He approached Detective Heban‘s vehicle from behind, “went around” it and then “activated his lights to make the stop of the vehicle.” A number of other Toledo Police officers arrived and converged on the vehicle. Boles “step[ped] out” of the car, was placed in handcuffs, “patted down * * * over his clothes,” and put in the back of the SWAT vehicle. Boles was then “removed” from the police vehicle, and a “second” search of his person was conducted.
{¶ 6} Boles was taken into custody and transported to the police station where Lieutenant Furr read him his Miranda rights. Detective Heban and Boles then had “a short conversation” about “the potential for [Boles to] becom[e] a confidential informant.” Boles “expressed willingness” to work as an informant. When asked about “the contraband that was discovered,” Boles requested an attorney, and questioning of him stopped. Detective Heban advised Boles that—for the time being—he would not be charged with any drug offenses but would instead be “booked on the warrants.” Boles was made aware that police were “going to hold this drug charge over [his] head [and] as long as [he] cooperate[d], this will go away.” According to Detective Heban, the police “booked” Boles that day to protect him. Had Boles been immediately released, “people who are involved in narcotics [would have assumed] ‘oh, he probably talked.‘” As a measure of “good faith,” Boles was allowed to keep the $600.
{¶ 8} At trial, the defense presented three witnesses. First to testify was SWAT Officer Ben Tsou. Tsou and his partner were part of the “loose perimeter” surrounding Boles’ vehicle and arrived at the scene “within a minute” after the stop “to assist” the operation. Tsou‘s commanding officer, Sergeant Russell, directed him to issue a citation
{¶ 9} Officer Tsou‘s SWAT vehicle was equipped with a dash camera. Because he did not activate its emergency lights, however, the dash camera did not activate automatically. Officer Tsou testified that it was standard practice not to activate his lights when he is “just pulling up to assist another unit [because] the more lights you activate on cars, the more attention you draw. * * * [I]t was in the interest of our safety and the safety of the detectives out there to * * * not draw as much attention [to this].” Likewise, while Officer Tsou could have activated the dash camera manually, he did not do so because he was merely assisting as a back-up that day. Nonetheless, before trial and at the request of the prosecutor, Tsou verified that no “dashcam footage from [his] car” existed for the event.
{¶ 10} Boles also called David Cogan to testify. Cogan supervises the “crime lab” for the city of Toledo. Cogan has performed “thousands” of drug analyses in his 23-year career and is an expert in forensics. Cogan oversaw Chad Douglas who prepared the drug analysis reports in this case and who testified on behalf of the state as to the contents and weights of the substances that were recovered on Boles. Cogan reviewed and initialed Douglas‘s report. Based upon Cogan‘s review of that report, nothing was “amiss” or “caught [his] attention” as needing to be corrected.
{¶ 11} Finally, Boles testified in his own defense. Boles confirmed that, on September 5, 2016, he was at the home of his girlfriend‘s sister, 2212 Elm Street, for a
{¶ 12} Boles claimed that he was searched one time only, which was after he was removed from the police car and that “when they searched [him], they didn‘t find nothing.” He specifically denied that he possessed any heroin or crack cocaine. Boles did admit to possessing a “little bag of marijuana” which police found in a pant pocket. Boles denied that any conversation ever took place about him working as a confidential informant, either at the police station or near Home Depot. Finally, Boles claimed that the money in his possession on the day of his arrest—about $400—was from selling a Sony Playstation.
{¶ 13} At the conclusion of the two-day trial, beginning on April 1, 2019, the court found Boles guilty and convicted him on all four counts, i.e., trafficking in and possession of heroin (Counts 1 and 2) and trafficking in and possession of cocaine (Counts 3 and 4). The trial court found that Counts 1 and 2 and Counts 3 and 4 were allied offenses of similar import that merged for purposes of sentencing, and the state elected to have Boles sentenced as to the trafficking offenses, i.e., Counts 1 and 3. By judgment entry dated April 3, 2019, the trial court sentenced Boles to serve four years in prison as to Count 1 and 17 months as to Count 3, to be served concurrently with one another.
Assignment of Error One: The trial court erred in denying Mr. Boles’ motions so suppress.
Assignment of Error Two: The trafficking convictions are unsupported by sufficient evidence and are against the manifest weight of the evidence.
Assignment of Error Three: The trial court erred in denying Mr. Boles’ motion to dismiss for a speedy trial violation.
Assignment of Error Four: The school specification was not separately proven beyond a reasonable doubt.
Assignment of Error Five: The trial court erred in finding appellant unable to pay costs and then imposing one-half of the costs to appellant.
The trial court did not err in denying Boles’ motions to suppress.
{¶ 15} Boles was represented by nine different attorneys throughout the trial court proceedings, and during that time, many pretrial motions were filed, including two motions to suppress.
{¶ 16} We begin with the latter motion, filed on May 18, 2018, in which Boles argued that the police lacked reasonable and articulable suspicions “to ask Mr. Boles to step from the vehicle and to search him,” in violation of Terry v. Ohio, 392. U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Following a hearing, the trial court denied the motion on December 18, 2018.
{¶ 18} “The Fourth Amendment to the United States Constitution and the Ohio Constitution, Article I, Section 14, prohibit unreasonable searches and seizures.” State v. Emerson, 134 Ohio St.3d 191, 2012-Ohio-5047, 981 N.E.2d 787, ¶ 15. This constitutional guarantee is protected by the exclusionary rule, which mandates the exclusion of the evidence obtained from the unreasonable search and seizure at trial. Id. The “investigative stop” exception to the Fourth Amendment warrant requirement allows a police officer to temporarily detain a person for the limited purpose of investigating suspected criminal behavior. State v. Andrews, 57 Ohio St.3d 86, 87, 565 N.E.2d 1271 (1991). “While an investigative stop constitutes a seizure, it does not violate the Fourth Amendment as long as the officer has a reasonable suspicion, based upon specific and articulable facts, that criminal activity ‘may be afoot’ (i.e., that a person has committed or
{¶ 19} At the suppression hearing in this case, four law enforcement officers testified: Detective Heban; SWAT Officer Tsou (who issued the traffic citation to the driver); SWAT Sergeant Russell (who initiated the traffic stop); and Lieutenant Furr (who Mirandized Boles and accompanied Detective Heban to Home Depot). In finding that the police conducted a “lawful search incident to [Boles‘] arrest,” the trial court made the following findings of fact,
Defendant was known to Toledo Police[.] [T]hey were observing his movements prior to his September 5, 2016 arrest, and they verified prior to Defendant‘s arrest on that date that he had outstanding warrants. Upon observing Defendant as a passenger in the relevant vehicle, they proceeded to pull over the vehicle with the intent of arresting Defendant on such arrest.
{¶ 20} On appeal, Boles does not challenge the propriety of the warrants or whether the police, specifically Detective Heban, were aware of the warrants before the vehicle Boles was driving in was pulled over. Boles concedes that the “[p]olice may stop a person to serve misdemeanor warrants” and that the investigative stop, as to him, was
{¶ 21} Instead, Boles “wishes to argue” that police “should not be able to detain a driver in order to serve a misdemeanor warrant on a passenger.” Boles admits that he can find no legal support for his position, much less demonstrate how he has standing to challenge the Fourth Amendment rights of the driver. And, even if he could, we find no support for Boles’ claim that the “alleged basis for the stop—failing to stop at a stop sign—was clearly pretextual.” The transcript from the suppression hearing supports the trial court‘s conclusion that the basis for the stop was to “take the suspect into custody on his warrants.” (Tr. at 41). Under cross-examination at trial, Detective Heban explained why he radioed the other officers that the driver had committed a traffic violation, if, in fact, “[t]he car wasn‘t stopped for a traffic violation.” Detective Heban testified that he did so out of “force of habit,” because “typically * * * we are specifically looking for traffic violations. So, * * * if I see a traffic violation, I‘m going to notify the SWAT officers of that violation.” The testimony—at the suppression hearing and at trial—bear
{¶ 22} Moreover, we conclude, as a matter of law, that the information Heban received about eight active warrants gave him a reasonable, articulable suspicion to believe that Boles had committed criminal offenses that entitled the police to “stop,” “seize,” and “detain” him to pursue the warrant issue further. Strong at ¶ 18. Accordingly, we find that the investigatory stop of Boles was lawful, and the trial court did not err in denying Boles’ May 18, 2018 motion to suppress.
{¶ 23} In the first motion to suppress, filed on March 29, 2018, Boles argued that “a warrantless search of the vehicle resulted in alleged drugs being recovered.” At the suppression hearing, the state argued that Boles—as a passenger in the vehicle with no
{¶ 24} For these reasons, Boles’ first assignment of error is found not well-taken.
The sufficiency and weight of the evidence support the drug trafficking convictions.
{¶ 25} In his second assignment of error, Boles alleges that the state failed to present legally sufficient evidence with respect to his drug trafficking convictions. He does not challenge the sufficiency of the evidence as to his possession convictions.
{¶ 27} Both trafficking convictions required the state to establish a violation of
No person shall knowingly * * * [p]repare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance or a controlled substance analog, when the offender knows or has reasonable cause to believe that the controlled substance or a controlled substance analog is intended for sale or resale by the offender or another person.
{¶ 28} On appeal, Boles alleges that, aside from a hearsay statement from a confidential informant who did not testify, the state presented no direct evidence that he transported narcotics with knowledge that the drugs were intended for sale. Boles argues
{¶ 29} First, it is well-established in Ohio that “[c]ircumstantial evidence and direct evidence inherently possess the same probative value.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph one of the syllabus. While the state may not have offered direct evidence that Boles transported the narcotics with the intention that they be sold, either by him or by someone else, the state did present circumstantial evidence to that effect. Moreover, and contrary to Boles’ legal argument, “[a] reasonable inference that the offender intended to sell or distribute drugs exists where an officer testifies that the drugs were packaged as if products were to be sold.” State v. Kallenberger, 6th Dist. Lucas No. L-17-1156, 2018-Ohio-2212, ¶ 26, citing State v. Lindow, 9th Dist. Summit No. 27417, 2016-Ohio-913, ¶ 26 (Evidence consisting of 166 grams of cannabis that were split into “numerous portable containers” and officer‘s testimony that such an amount was not for “personal use” was sufficient to establish intent to sell).
{¶ 30} Here, the state presented the testimony of Detective Heban who testified that the presence of “19 little bags” indicated that the drugs were “packaged for sale.” He added that “street level dealers” typically package narcotics in $20 increments for an easy sale, and in his opinion, the individual units of drugs found in Boles’ possession were each worth $20 to $50, which could explain why Boles was also found with so many $20 bills. Detective Heban also opined that the large amount of drugs found on Boles was not
{¶ 31} Other evidence came from Boles himself. While testifying in his own defense, the prosecutor asked Boles about a conversation with his girlfriend that he had while he was in jail on May 31, 2018, after his bond was revoked. Reading from the transcript of that jailhouse phone call, the prosecutor asked Boles, “[d]o you remember [your girlfriend] saying to you * * * ‘I told him I ain‘t one of those slouch bitches. I‘m taking over the operation, mother fucker, and the mother fuckers going to have to catch me. * * * My nigger locked up, I‘m gonna say hey, baby girl, you look like you need a little hit over there. How much money you got.‘” Boles did not dispute the conversation. Instead, he suggested that she only said those things “because she knew [the prosecutor] was listening” but then admitted that the comments could be “interpret[ed] the way you want to interpret [them].” Indeed, the trial court, acting as the trier of fact, likely concluded that Boles ran a narcotics “operation” which served as circumstantial evidence that the drugs found in Boles’ possession on September 5, 2016 were intended for sale. We find that the state presented legally sufficient evidence to support Boles’ convictions for trafficking in heroin and cocaine.
{¶ 33} For all of these reasons, Boles’ second assignment of error is not well taken.
Boles’ right to speedy trial was not violated.
{¶ 34} In his third assignment of error, Boles “requests * * * review” of the trial court‘s denial of his motion to dismiss the indictment for violation of his statutory right to a speedy trial. But, he concedes that the motion—that he filed while acting pro se—was, in the opinion of his subsequently appointed trial counsel, “frivolous.” (Appellant‘s Brief at 12).
{¶ 35} The right to a speedy trial is guaranteed by the Sixth and Fourteenth Amendments to the U.S. Constitution and Article I, Section 10, of the Ohio Constitution. State v. Adams, 43 Ohio St.3d 67, 68, 538 N.E.2d 1025 (1989). The Ohio legislature adopted the provisions of
{¶ 36} Here, although Boles was indicted on July 10, 2017, the speedy-trial time did not begin to run until he was served with the indictment, which was September 30, 2017. State v. Dillon, 10th Dist. Franklin No. 05AP-679, 2006-Ohio-3312, ¶ 33. Boles was brought to trial on April 1, 2019. Between the service of the indictment and the commencement of trial, 548 days elapsed. The state concedes that, because this was more than the 270-day limit in
{¶ 37} The state argues that Boles’ case was subject to numerous tolling events that were extended for substantial periods of time, bringing his trial date well within the statutory limit. We agree.
a. Applicable Law
{¶ 38} At its most basic, a speedy-trial calculation requires us to “‘simply count the number of days passed, while determining to which party the time is chargeable, as directed in
{¶ 39} The reasons for charging days to the defendant (i.e., tolling speedy-trial time) are outlined in
{¶ 40} Here, several types of tolling events are relevant to our analysis.
{¶ 41} First, under
{¶ 42} Second, under
{¶ 43} Also relevant to this case is
{¶ 44} We apply these general legal principles to Boles’ case.
b. Speedy-Trial Calculation
{¶ 45} Boles was served with the indictment on September 30, 2017, but the actual date of service does not count against the state for purposes of determining whether a defendant‘s right to a speedy trial has been violated. See, e.g. State v. Espinoza-Sioriano, 6th Dist. Erie No. E-18-067, 2020-Ohio-139, ¶ 13.
{¶ 47} When the case was not subject to a continuance order, there were other events that caused the trial to be postponed. For example, on July 2, 2018, a hearing was held on Boles’ motions to suppress, at the conclusion of which the trial court ordered the parties to file written closing arguments and took the matter “under advisement.” The court denied the motions 169 days later, on December 18, 2018. “When a court takes [a] motion ‘under advisement,’ it ‘necessitates’ a reasonable amount of time be allowed for the judge to arrive at a decision.” State v. Lopez, 6th Dist. Lucas No. L-88-161, 1989 WL 61685 (June 9, 1989). We need not decide whether the entire 169 days that it took the court to decide the motions was reasonable, however, because on July 17, 2018, Boles requested that the case be continued, again, which he regularly extended for months, until October 25, 2018. At a minimum, the time between July 2 and 17, 2018, i.e., 16 days, was tolled. Also, and as set forth below, he propounded discovery requests upon the state on July 11, 2018, which also tolled the running of the speedy-trial time clock.
{¶ 49} Boles propounded two sets of discovery requests upon the state. His first request was made on October 5, 2017, and the state responded on October 12, 2017. Boles’ second demand was made on July 11, 2018, and the state responded five days later on July 16, 2018. In all, the speedy-trial time clock was tolled 14 days while the state responded to Boles’ discovery requests.
{¶ 50} In sum, we calculate Boles’ speedy-trial time as follows:
| Dates | Tolling Event | Days chargeable to the state |
|---|---|---|
| Oct. 1-4, 2017 | None | 4 |
| Oct. 5-12, 2017 | A reasonable time for the state to respond to Boles’ discovery demand | Tolled |
| Oct. 13-16, 2017 | None | 4 |
| Oct. 17- July 2, 2018 | Case continued “at Defendant‘s request” | Tolled |
| July 2-Dec. 18, 2018 | Defense motions taken “under advisement” | Case tolled for a reasonable time |
| July 11-16, 2018 | A reasonable time for the state to respond to Boles’ discovery demand | Tolled |
| July 17-Oct. 25, 2018 | Case continued “at Defendant‘s request” | Tolled |
| Oct. 26-Nov. 1, 2018 | None | 7 |
| Nov. 1-8, 2018 | Case continued “at Defendant‘s request” | Tolled |
| Nov. 9-27, 2018 | None | 19 |
| Nov. 28-Apr. 1, 2019 | Case continued “at Defendant‘s request” | Tolled |
| Total number of actual days charged to the state | 34 |
{¶ 51} To restate, the days that were not subject to a tolling event were between October 1-4 and 13-16, 2017 (8 days); October 26-November 1, 2018 (7 days) and November 9-27, 2018 (19 days) for a total of 34 days. Boles was held in custody for all of those days. When the defendant is held in custody in lieu of bail, each day he is held counts as three days for speedy-trial purposes.
{¶ 52} Because the number of days chargeable to the state, 102, is less than the 270 days within which the state was required to bring Boles to trial under
The penalty enhancement for trafficking in the vicinity of a school.
{¶ 53} Boles’ convictions for trafficking in cocaine and heroin each included a sentencing enhancement for committing the respective offenses “in the vicinity of a school.”
Whoever violates division (A) of this section is guilty of one of the following: * * *
(4) [i]f the drug involved in the violation is cocaine * * * whoever violates division (A) of this section is guilty of trafficking in cocaine. The penalty for the offense shall be determined as follows: * * * (b) * * * if the offense was committed in the vicinity of a school * * * trafficking in cocaine is a felony of the fourth degree. * * *
(6) If the drug involved in the violation is heroin * * * whoever violates division (A) of this section is guilty of trafficking in heroin. The penalty for the offense shall be determined as follows: * * * (d) * * * [i]f the amount of the drug involved is within [the applicable] range and if the offense was committed in the vicinity of a school * * * trafficking in heroin is a felony of the second degree. (Emphasis added.)
{¶ 54} In his fourth assignment of error, Boles alleges that the sentencing enhancements “should” not apply to him because he “only * * * transported” drugs and “no sale of drugs took place within a school zone.” Boles admits, not for the first time, that he can find no legal support for his argument. Nor can this court.
{¶ 55} Boles was convicted under
{¶ 56} Next, Boles asserts—on the one hand—that the school specification penalties are “strict liability” enhancements but then asserts—on the other hand—that “there was no intent shown that [he] intended to traffic within a school zone.” Boles was right the first time. Indeed, “[a]n offense is ‘committed in the vicinity of a school’ if the offender commits the offense * * * within one thousand feet of the boundaries of any school premises, regardless of whether the offender knows the offense is being committed * * * within one thousand feet of the boundaries of any school premises.” (Emphasis added.).
{¶ 57} The state presented evidence that Boles knowingly transported narcotics from two different locations, each within 1000 feet of a school. Thus, the state presented the testimony of Detective Heban who established that the distance from the location where he first saw Boles, as Boles exited his girlfriend‘s home, was 354 feet from “Brightside Academy,” which serves about 150 preschool aged children. The state also
The imposition of court costs.
{¶ 58} In his fifth and final assignment of error, Boles challenges the imposition of costs. Our standard of review on this issue is whether the imposition of costs was contrary to law.
{¶ 60} It is unclear to this court whether the lower court intended to impose any costs other than the costs of prosecution. But, as we have held, “if a trial court wishes to impose the separate costs of confinement and appointed counsel, it must explicitly do so.” State v. Middlebrooks, 6th Dist. Sandusky No. S-18-032, 2019-Ohio-2149, ¶ 33 (Finding that the trial court‘s use of “court costs” means only the costs of prosecution required by
{¶ 61} “The imposition of court costs on all convicted defendants is mandatory.” State v. Taylor, Slip Opinion No. 2020-Ohio-3514, ¶ 6, citing
{¶ 62} Consistent with the above, the trial court considered Boles’ ability to pay in deciding to waive half of the costs of prosecution. On appeal, Boles argues that the trial court erred in ordering him to pay any costs in light of its finding that he has no ability to pay. We disagree.
{¶ 63} We may not modify the trial court‘s imposition of costs unless we find by clear and convincing evidence that it is not supported by the record or is contrary to law. Having found neither, we find that Boles’ fifth assignment of error is not well-taken.
Conclusion
{¶ 64} We find Boles’ five assignments of error not well-taken and affirm the April 3, 2019 judgment of the Lucas County Court of Common Pleas. Boles is ordered to pay the costs of this appeal under
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Christine E. Mayle, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.