STATE OF OHIO v. ANDRE L. CARLTON
C.A. No. 12CA010219
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
June 28, 2013
2013-Ohio-2788
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 11CR083659
Dated: June 28, 2013
HENSAL, Judge.
{1} Andre Carlton appeals his convictions for trafficking in drugs, possession of drugs, having weapons under disability, carrying concealed weapons, and possession of drug abuse paraphernalia in the Lorain County Common Pleas Court. For the following reasons, this Court affirms.
I.
{2} According to City of Lorain police detectives, over a six-day period in September 2011, they had a confidential informant make three controlled drug buys from Kareem Tucker. After the third buy, they obtained a search warrant for Mr. Tucker‘s apartment, and raided it the following day. When officers entered the one-room efficiency apartment, they found Mr. Carlton on a mattress in the middle of the room wearing only boxer shorts. Mr. Tucker was not present at the time, but there was a woman on the mattress with Mr. Carlton. During their search
{3} The Grand Jury indicted Mr. Carlton for trafficking in drugs, possession of drugs, having weapons while under disability, carrying concealed weapons, and drug paraphernalia. The indictment included firearm specifications for three of the offenses. At trial, the State argued that, even though the apartment did not belong to Mr. Carlton, he had constructive possession of the guns, drugs, and drug paraphernalia found during the search. It also argued that he aided and abetted Mr. Tucker. The jury found Mr. Carlton guilty of the offenses, and the trial court sentenced him to a total of eight years imprisonment. Mr. Carlton has appealed, assigning five errors.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED TO THE DETRIMENT OF CARLTON BY NOT CORRECTING COUNSEL WHEN THEY MISSTATED THE LAW. THE PROSECUTING ATTORNEY‘S REMARKS DURING VOIR DIRE CONSTITUTED PLAIN ERROR WHICH DEPRIVED MR. CARLTON OF A FAIR TRIAL IN VIOLATION OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSITUTION AND COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION.
{4} Mr. Carlton argues that the trial court should have corrected the prosecutor when she attempted to define the term “constructive possession” for the jury during voir dire. The prosecutor told the jury:
Possession doesn‘t have to be something that‘s on your person, and this is where circumstantial evidence comes into play. All of that paperwork over there that was seated right before me when I was seated at the table, I‘m in possession of that. You can use * * * your common sense that you saw where I was at, the items in front of me, that I could see, even though I‘m away from them, they‘re not in my pockets and in my jacket, but I‘m still in possession of those items. It‘s called constructive possession.
{5} “A fundamental rule of appellate review is that a reviewing court will not consider as error any issue that a party was aware of but failed to bring to the trial court‘s attention.” Russell v. City of Akron Hous. Appeals Bd., 9th Dist. No. 17271, 1996 WL 1769, *1 (Jan. 3, 1996), citing Schade v. Carnegie Body Co., 70 Ohio St.2d 207, 210 (1982). A failure to preserve an objection in the trial court constitutes a forfeiture of that issue. State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, ¶ 23. “Where a party has forfeited an objection by failing to raise it, the objection may still be assigned as error on appeal if a showing of plain error is made.” State v. Feliciano, 9th Dist. No. 09CA009595, 2010-Ohio-2809, ¶ 8. See also
{6} According to the Ohio Supreme Court, “[c]onstructive possession exists when an individual knowingly exercises dominion and control over an object, even though that object may not be within his immediate physical possession.” State v. Hankerson, 70 Ohio St.2d 87 (1982), syllabus. Upon review of the prosecutor‘s statement, we conclude that it did not mislead the jury. The prosecutor merely pointed out that, even though she had not been holding any of
{7} Mr. Carlton has not established that the prosecutor‘s remark was improper or that, but for her explanation of constructive possession, he would not have been convicted. Accordingly, he has failed to demonstrate plain error. Mr. Carlton‘s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE EVIDENCE PRESENTED AT TRIAL DID NOT PROVE BEYOND A REASONABLE DOUBT THAT CARLTON POSSESSED AND/OR TRAFFICKED IN DRUGS, OR THAT HE WAS COMPLICIT TO POSSESS OR TRAFFIC IN DRUGS. THE STATE DID NOT PROVE THAT CARLTON EVER POSSESSED, OR WAS COMPLICIT TO POSSESS ANY GUN. THE STATE DID NOT PROVE THAT CARLTON HAD CONSTRUCTIVE POSSESSION OF ANY GUN. THE VERDICTS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED AND THEREBY DEPRIVED APPELLANT OF DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION BY OVERRULING APPELLANT‘S CRIM.R. 29 MOTION FOR JUDGMENT OF ACQUITTAL, AS THE PROSECUTION FAILED TO OFFER SUFFICIENT EVIDENCE TO PROVE BEYOND A REASONABLE DOUBT EACH AND EVERY ELEMENT OF THE OFFENSES OF POSSESSION AND/OR TRAFFICKING OF COCAINE AND AGGRAVATED POSSESSION AND/OR TRAFFICKING OF DRUGS AND/OR POSSESSION, OR COMPLICIT TO POSSESS ANY GUN. THE STATE DID NOT PROVE THAT CARLTON HAD CONSTRUCTIVE POSSESSION OF ANY GUN OR ANY DRUG.
{9} Mr. Carlton argues that the State did not present sufficient evidence for the jury to find that he possessed the guns, drugs, and drug paraphernalia that were found in Mr. Tucker‘s apartment. At trial, the State argued that Mr. Carlton had possession of the items because he had dominion and control over the apartment. It also argued that he had acted in complicity with Mr. Tucker.
{10} The jury found Mr. Carlton guilty of trafficking in drugs, possession of drugs, having weapons under disability, carrying concealed weapons, and possession of drug abuse paraphernalia. Each of the offenses required the State to prove that Mr. Carlton had possession of the drugs, guns, or drug paraphernalia found in Mr. Tucker‘s apartment, either by constructive possession or by establishing that he was in complicity with Mr. Tucker. We note that, although
{11} Regarding constructive possession,
{12} Regarding complicity,
To support a conviction for complicity by aiding and abetting pursuant to
R.C. 2923.03(A)(2) , the evidence must show that the defendant supported, assisted, encouraged, cooperated with, advised, or incited the principal in the commission of the crime, and that the defendant shared the criminal intent of the principal. Such intent may be inferred from the circumstances surrounding the crime.
State v. Johnson, 93 Ohio St.3d 240 (2001), syllabus.
{13} The confidential informant testified that Mr. Carlton was present during two of the controlled drug buys. During one of those buys, he met Mr. Tucker at a different location and accompanied him back to the apartment. When they got to the entrance, Mr. Carlton had to let them in. During another buy, the informant knocked on the door of the apartment, but did not identify himself clearly. When Mr. Carlton answered the door, he scolded the informant for not speaking loudly enough. According to the informant, Mr. Carlton told him that he was “lucky” and that “I could have shot you because I didn‘t know who was at the door[.]” According to the informant, even when he was not buying drugs from Mr. Tucker, he was at Mr. Tucker‘s apartment almost every day. Mr. Carlton was also at the apartment each of those times. The informant testified that guns were out during each of the drug buys and that Mr. Carlton was around the guns during the buys.
{15} The State also presented evidence that Mr. Carlton had previously been convicted of possession of cocaine, demonstrating that he had knowledge of the substances. Upon review of the record, we conclude that, viewing the evidence in a light most favorable to the prosecution, the State presented evidence from which the jury could reasonably find that Mr. Carlton was in constructive possession of the guns, drugs, and drug paraphernalia found in Mr. Tucker‘s apartment or that he acted in complicity with Mr. Tucker. Mr. Tucker‘s third assignment of error is overruled.
{16} Turning to Mr. Carlton‘s manifest weight argument, this Court has explained that, in reviewing whether a conviction is against the manifest weight of the evidence, it “must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). According to Mr. Carlton, just because he was staying with Mr. Tucker for a couple of weeks and happened to be present when the police raided the apartment does not mean that the guns and drugs were his or that he was aiding Mr. Tucker with his drug sales. He notes that the
{17} Mr. Carlton‘s admonishment of the confidential informant after the informant failed to announce himself properly demonstrates that Mr. Carlton had control over at least one of the guns that was in the apartment. He also had authority to control who came and went from the apartment and full control over the apartment while Mr. Tucker was away. Upon review of the record, we conclude that the jury did not lose its way when it determined that the evidence established that Mr. Carlton was in constructive possession of the guns, drugs, and drug paraphernalia found in the apartment or that he aided and abetted Mr. Tucker‘s drug business. Mr. Carlton‘s second assignment of error is overruled.
ASSIGNMENT OF ERROR IV
THE COURT ERRED TO THE DETRIMENT OF CARLTON BY ALLOWING TESTIMONY ABOUT PRIOR CRIMINAL ACTS THAT WERE ALLEGEDLY COMMITTED BY CARLTON FOR WHICH CARLTON WAS NOT PRESENTLY CHARGED.
{18} Mr. Carlton argues that the court incorrectly allowed witnesses to testify about his prior criminal acts. He asserts that the evidence was inadmissible and prejudicial. He also argues that, even though he was charged with having weapons under disability, there was no need for the State to introduce evidence about his prior bad acts because he stipulated to the fact that he had prior convictions for trafficking in cocaine, possession of cocaine, and possession of drug abuse paraphernalia.
{19} “Evidence that an accused committed a crime other than the one for which he is on trial is not admissible when its sole purpose is to show the accused‘s propensity or inclination to commit crime or that he acted in conformity with bad character.” State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, ¶ 15. Yet, “Evid.R. 404(B) contains a non-exhaustive list of
{20} The Ohio Supreme Court has held that, when “considering other acts evidence, trial courts should conduct a three-step analysis.” Williams at ¶ 19.
The first step is to consider whether the other acts evidence is relevant to making any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. The next step is to consider whether evidence of the other crimes, wrongs, or acts is presented to prove the character of the accused in order to show activity in conformity therewith or whether the other acts evidence is presented for a legitimate purpose, such as those stated in Evid.R. 404(B). The third step is to consider whether the probative value of the other acts evidence is substantially outweighed by the danger of unfair prejudice.
(Internal citations omitted.) Id. at ¶ 20. “[D]ecisions regarding the admissibility of other-acts evidence under Evid.R. 404(B) are evidentiary determinations that rest within the sound discretion of the trial court.” State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, syllabus.
{21} Three police detectives testified that they were familiar with Mr. Carlton through their work. One said that he had made controlled buys from Mr. Carlton in the past, and another said that he knew Mr. Carlton was a drug dealer from prior narcotics-unit investigations. Although the trial court prohibited the detectives from testifying about the details of those prior experiences, Mr. Carlton argues that it is impossible to believe that the repeated references to his past drug dealings did not cause the jury to conclude that he was guilty of the present crimes as well.
ASSIGNMENT OF ERROR V
THE STATE IMPERMISSIBLY INTERFERED WITH CARLTON‘S CRIM.R. 31(A) RIGHT TO JUROR UNANIMITY AND THE DUE PROCESS RIGHT TO REQUIRE THAT THE STATE PROVE EACH ELEMENT OF THE OFFENSE BEYOND A REASONABLE DOUBT UNDER BOTH THE “ALTERNATIVE MEANS” AND “MULITPLE ACTS” TESTS.
{23} Mr. Carlton‘s fifth assignment of error is that the trial court‘s jury instructions allowed the jury to find him guilty of the offenses even though they did not agree on the same set of facts. He contends that some of the jurors might have believed he was guilty because they found he was in constructive possession of the items found in the apartment while others might have believed that he was guilty because they found he had aided and abetted Mr. Tucker. He also argues that, in light of the fact that there were three separate controlled buys, the jurors might not have been in agreement regarding which buy he participated in. Because of the possibility that the jurors were not unanimous in their factual findings, he argues that his
{24}
In an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means. In reviewing an alternative means case, the court must determine whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt.
In multiple acts cases, on the other hand, several acts are alleged and any one of them could constitute the crime charged. In these cases, the jury must be unanimous as to which act or incident constitutes the crime. To ensure jury unanimity in multiple acts cases, we require that either the State elect the particular criminal act upon which it will rely for conviction, or that the trial court instruct the jury that all of them must agree that the same underlying criminal act has been proved beyond a reasonable doubt.
Id. at ¶ 49-50, quoting State v. Jones, 96 Haw. 161, 170 (2001). The parties agree that the plurality‘s opinion sets out the appropriate analysis.
{25} Mr. Carlton argues that this case involves multiple acts because there were three separate drug buys. The State, on the other hand, argues that it only involves alternative means because the question was merely whether Mr. Carlton constructively possessed the items found in the apartment or whether he was guilty because he aided and abetted Mr. Tucker‘s illicit conduct.
{27} Mr. Carlton has not established that the trial court plainly erred when it instructed the jury. Mr. Carlton‘s fifth assignment of error is overruled.
III.
{28} Mr. Carlton‘s assignments of error are overruled. The judgment of the Lorain County common pleas court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
WHITMORE, J. CONCURS.
BELFANCE, P. J. CONCURS IN JUDGMENT ONLY.
APPEARANCES:
KENNETH N. ORTNER, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant Prosecuting Attorney, for Appellee.