STATE OF OHIO v. DAMON CARPENTER
CASE NO. CA2019-03-044
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
11/25/2019
2019-Ohio-4829
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2018-09-1674
Engel & Martin, LLC, Mary K. Martin, 4660 Duke Drive, Suite 101, Mason, Ohio 45040, for appellant
RINGLAND, P.J.
{¶ 1} Damon Carpenter appeals his convictions in the Butler County Court of Common Pleas for possession of and trafficking in heroin. For the reasons that follow, this court affirms Carpenter‘s convictions.
{¶ 2} On September 12, 2018, Hamilton police officers on neighborhood patrol observed a Mercedes-Benz sedan stopped in a convenience store parking lot. They
{¶ 3} The vehicle left the parking lot and the officers soon initiated a traffic stop. Carpenter was driving the vehicle and there was one passenger. Officers removed Carpenter and the passenger without incident.
{¶ 4} In a subsequent search of the vehicle, officers recovered approximately 20 grams of heroin hidden underneath the lid to the gas tank cap. They recovered two cellular phones from the vehicle. Carpenter admitted owning the phones. Police also found $685 in cash in Carpenter‘s possession.
{¶ 5} Police arrested Carpenter. In October 2018, a Butler County grand jury indicted Carpenter with Count One, possession of heroin, a violation of
{¶ 6} Carpenter remained incarcerated while awaiting trial. Prior to trial, he moved the court to dismiss based on a speedy-trial violation. The court held a hearing at which it determined that Carpenter would be brought to trial consistent with his speedy-trial rights and therefore denied the motion.
{¶ 7} The matter proceeded to a jury trial. Ciara Roberts testified for the state. Roberts’ mother owned the Mercedes-Benz. Roberts admitted stealing the vehicle from her mother on September 11, 2018. That same day, she drove the vehicle to the Lindenwald neighborhood of Hamilton and met with Carpenter. She gave him the vehicle in exchange for
{¶ 8} The state introduced corroborating text messages from Roberts’ phone, sent on September 11, to one of Carpenter‘s phone numbers. The messages indicate that Roberts has a Mercedes-Benz for Carpenter and that she is “trying to make some dope.” She asks whether Carpenter has any “boy or ice.” Roberts testified that “boy” is slang for heroin and “ice” is slang for methamphetamine.
{¶ 9} Roberts testified that she was familiar with Carpenter and had known him for seven years. She was aware that Carpenter would usually keep drugs on his person or “in the gas tank.”
{¶ 10} The state also introduced incoming and outgoing text messages between Carpenter‘s two cellular phone numbers and unknown numbers. The time frame of the messages was between the time the vehicle was reported stolen, in the afternoon of September 11, until the time of Carpenter‘s arrest in the afternoon of September 12. Generally, the texts messages indicate drug trafficking activity, i.e., requests for narcotics using slang terms and questions concerning where to meet. The messages include requests for “boy” and refer to several locations in the Lindenwald neighborhood of Hamilton.
{¶ 11} Carpenter rested his defense case without presenting witnesses or other evidence. However, Carpenter and the state agreed to a stipulation that was presented to the jury. The parties stipulated that on September 11, 2018, a law firm had provided Carpenter with a settlement check for $3,824.06.
{¶ 12} The jury found Carpenter guilty of both counts of the indictment. However, the jury found that the $685 in cash was not subject to forfeiture. Carpenter appeals, raising two assignments of error.
{¶ 13} Assignment of Error No. 1:
{¶ 15} Carpenter argues that the state violated his statutory and constitutional rights to a speedy trial when it brought him to trial in excess of 90 days after his incarceration. He contends that he was not responsible for the delay in scheduling his trial and he never waived his speedy-trial rights.
{¶ 16} The right to a speedy trial is guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by Section 10, Article I of the Ohio Constitution. State v. Taylor, 98 Ohio St.3d 27, 2002-Ohio-7017, ¶ 32; State v. Miller, 12th Dist. Warren No. CA2009-01-008, 2009-Ohio-4831, ¶ 8. The General Assembly enacted Ohio‘s speedy-trial statutes to preserve this right. Taylor at id. Compliance with these statutes is mandatory and the statutes “must be strictly construed against the state.” Id., citing State v. Cox, 12th Dist. Clermont No. CA2008-03-028, 2009-Ohio-928, ¶ 12.
{¶ 17}
{¶ 18} Once a defendant demonstrates he was not brought to trial within the permissible time period, the accused presents a prima facie case for dismissal based on a speedy-trial violation. Miller at ¶ 9. The burden then shifts to the state to prove that time was sufficiently tolled, and the speedy-trial time period extended. Id.
{¶ 20} Appellate review of speedy-trial issues involves a mixed question of law and fact. State v. Messer, 12th Dist. Clermont No. CA2006-10-084, 2007-Ohio-5899, ¶ 7. An appellate court must give due deference to the trial court‘s findings of fact if they are supported by competent, credible evidence. The appellate court then independently reviews whether the trial court correctly applied the law to the facts of the case. Id.
{¶ 21} Police arrested Carpenter on September 12, 2018. He remained incarcerated while awaiting the trial that occurred on January 23, 2019. Thus, 132 days elapsed between incarceration and trial and Carpenter presented a prima facie case for a speedy-trial violation. However, the following relevant events occurred after Carpenter‘s incarceration:
- October 30, 2018: Carpenter‘s counsel files various discovery requests of the state and request for a bill of particulars.
- November 13, 2018: Carpenter‘s counsel files a motion to withdraw based upon a conflict of interest. The court grants the motion the same day and indicates in the entry it will appoint substitute counsel.
- November 13, 2018: Court issues pretrial order setting a trial date of December 26, 2016.
- November 14, 2018: New counsel appears, files various
discovery requests of the state. - November 19, 2018: State responds to Carpenter‘s discovery requests.
- November 27, 2018: Court issues new pretrial order rescheduling trial date from December 26, 2018 to January 23, 2019. The entry indicates “vacate trial date at request of defense counsel.” However, at a subsequent hearing on Carpenter‘s motion to dismiss, the court clarified that defense counsel had not specifically requested the January trial date but had merely informed the court of counsel‘s unavailability for trial on the originally scheduled December date. The court indicated it chose the January date.
- December 7, 2018: Carpenter files a pro se motion to dismiss. State moves to strike.
- December 12, 2018: Court strikes Carpenter‘s motion to dismiss.
- December 27, 2018: Carpenter, through counsel, files motion to dismiss based on speedy-trial violations.
- January 8, 2019: Court holds hearing on Carpenter‘s speedy-trial motion. Court denies motion.
- January 23, 2019: Jury trial.
{¶ 22} This court finds that speedy-trial time tolled for the following events:
- Carpenter‘s discovery requests, October 30, 2018 -
November 19, 2018 (20 days).2 - Carpenter‘s pro se motion to dismiss, December 7, 2018 - December 12, 2018 (5 days).3
- Carpenter‘s motion to dismiss on speedy-trial grounds, December 27, 2018 through January 8, 2019 (12 days).
- The continuance of original trial date of December 26, 2018 to the rescheduled trial on January 23, 2019 (16 days in addition to those previously tolled by Carpenter‘s second motion to dismiss).
{¶ 23} With respect to the continuance, speedy-trial time may be extended for “any continuance granted on the accused‘s own motion, and the period of any reasonable continuance granted other than upon the accused‘s own motion.”
{¶ 24} Therefore, of the 132 days that Carpenter was incarcerated awaiting trial, only 79 days were chargeable to the state. Accordingly, the state brought Carpenter to trial consistent with his statutory speedy-trial rights.
{¶ 25} Next, Carpenter argues that the state violated his constitutional right to a speedy trial. When determining whether an accused was denied the right to a speedy trial as guaranteed by the Sixth Amendment, the court must consider four factors: (1) length of delay, (2) reason for the delay, (3) the accused‘s assertion of his right, and (4) prejudice to the accused. Barker v. Wingo, 407 U.S. 514, 530-532, 92 S.Ct. 2182 (1972); State v. Davis, 46 Ohio St.2d 444, 446 (1976).
{¶ 26} The first of the Barker factors, the length of delay, “is to some extent a triggering mechanism.” Barker at 530. “Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.” Id. If the defendant makes the initial threshold showing of presumptive prejudice, this court must then consider the length of the delay with the other Barker factors. Doggett v. United States, 505 U.S. 647, 652, 112 S.Ct. 2686 (1992), citing Barker at 533-534.
{¶ 27} Courts generally find post-accusation delay to be “presumptively prejudicial” as it approaches one year. Id. at 652, fn. 1. However, this is not an absolute rule and each case must be considered on its own circumstances. State v. Johnson, 12th Dist. Butler No. CA2011-09-169, 2013-Ohio-856, ¶ 39. Under the circumstances presented in this case, a 132-day delay between arrest and trial was not presumptively prejudicial and there is no need for this court to consider the additional Barker factors. This court overrules Carpenter‘s first assignment of error.
{¶ 29} THE TRIAL COURT ABUSED ITS DISCRETION BY PERMITTING THE STATE TO INTRODUCE IMPERISSIBLE CHARACTER EVIDENCE.
{¶ 30} Carpenter contends that the trial court abused its discretion by allowing the jury to consider the narcotics sales text communications that police recovered from his cellular phones. He argues that this was inadmissible other acts evidence and was offered only to show he acted in conformity. For the same reasons, Carpenter argues that the court improperly permitted Roberts to testify that she knew Carpenter to either store drugs on his person or in the gas cap area.
{¶ 31} As required by
{¶ 32} The court indicated it would tentatively admit Roberts’ proffered testimony based on the state‘s argument. With respect to the text messages, the state and Carpenter were able to compromise without the court‘s involvement. The state initially wished to introduce text messages from Carpenter‘s phones beginning September 9 through the time of the arrest on September 12. However, as the parties and court discussed the issue, the state offered to reduce the period of the text messages to begin when the vehicle was reportedly stolen, at approximately noon on September 11 and through the time of arrest on September 12. Carpenter‘s counsel indicated acceptance of this offer, stating: “[y]our honor, I have no issue with the text messages from the 11th – to when the car was stopped. As far
{¶ 33} During trial, the prosecutor questioned Roberts as to whether she was aware of where Carpenter stored narcotics. Carpenter did not object and Roberts answered. Later in the trial, the prosecutor questioned a police officer about the text messages and later introduced the messages as an exhibit. Carpenter objected based on hearsay and lack of authentication, which objections the court overruled. Carpenter did not object based on
{¶ 34} The court‘s ruling with respect to Roberts’ proffered testimony was liminal. A liminal ruling “is a tentative, interlocutory, precautionary ruling by the trial court reflecting its anticipatory treatment of [an] evidentiary issue.” State v. Grubb, 28 Ohio St.3d 199, 201-02 (1986). This initial ruling did not, in and of itself, preserve the record on appeal. Grubb at 201-202; State v. Hensley, 12th Dist. Warren No. CA2009-11-156, 2010-Ohio-3822, ¶ 29. Rather, “any claimed error regarding a trial court‘s decision on a motion in limine must be preserved at trial by an objection, proffer, or a ruling on the record ***.” State v. Smith, 12th Dist. Warren No. CA2002-04-038, 2002-Ohio-6395, ¶ 12.
{¶ 35} Because Carpenter did not object to the challenged evidence on the basis of
{¶ 36}
In any criminal case in which the defendant‘s motive or intent, the absence of mistake or accident on his part, or the defendant‘s scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his motive or intent, the absence of mistake or accident on his part, or the defendant‘s scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant.
{¶ 37} The Ohio Supreme Court has held that “other acts” evidence is typically admissible under the “scheme, plan, or system” exception of
{¶ 38} In order to form part of the “immediate background” of the crime charged, the evidence must concern events that are “inextricably related” with that crime. Id. Stated otherwise, other acts are admissible if they are “so blended or connected with the one on trial as that proof of one incidentally involves the other; or explains the circumstances thereof; or tends logically to prove any element of the crime charged.” State v. Wilkinson 64 Ohio St.2d 308, 317 (1980), quoting United States v. Turner 423 F. 2d 481, at 483-84 (7th Cir.1970).
{¶ 39} With respect to the text messages, the indictments alleged that, on or about September 12, 2018, Carpenter was guilty of possession under
{¶ 40} Police found Carpenter driving that stolen vehicle. They ultimately recovered a large quantity of heroin hidden in the vehicle. Therefore, the text messages indicating heroin-sale activity contemporaneously with Carpenter‘s possession of the stolen Mercedes-Benz were inextricably related with the charged crimes. Stated otherwise, the evidence was intrinsic to the crimes charged and assisted the factfinder in determining that Carpenter knowingly possessed heroin and knowingly transported the heroin with knowledge that it was for sale.
{¶ 41} On the other hand, Robert‘s testimony that she was familiar with Carpenter and that he would keep his narcotics in the “gas tank” was extrinsic to the crime charged. Roberts had no personal knowledge concerning whether Carpenter had stored narcotics in her mother‘s stolen vehicle. However, given that the vehicle was stolen, was occupied by a second individual, and Carpenter disclaimed ownership of the seized heroin, such evidence would be admissible under
{¶ 42} In this case, the probative value of such evidence would not be outweighed by the danger of unfair prejudice. This court finds no obvious deviation from a legal rule and
{¶ 43} Judgment affirmed.
PIPER and M. POWELL, JJ., concur.
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