STATE OF OHIO, Plaintiff-Appellee, vs. ANTHONY D. CARTER, Defendant-Appellant.
Case No. 18CA1
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY
Released: 11/02/18
[Cite as State v. Carter, 2018-Ohio-4503.]
DECISION AND JUDGMENT ENTRY
Jerry L. McHenry, Pickerington, Ohio, for Appellant.
Judy C. Wolford, Pickaway County Prosecutor, and Jayme Hartley Fountain, Assistant Pickaway County Prosecutor, Circleville, Ohio, for Appellee.
McFarland, J.
{¶1} This is an appeal from a Pickaway County Court of Common Pleas judgment entry convicting Appellant, Anthony Carter, of ten felony drug offenses, which included one count of engaging in a pattern of corrupt activity, seven counts of trafficking in cocaine, two counts of trafficking in heroin, and sentencing him to an aggregate prison term of thirty-one years. On appeal, Appellant contends that 1) trial counsel rendered ineffective assistance by failing to object to the testimony of Anthony Schwalbauch when he gave opinion testimony as to weights and measures of drugs and
{¶2} Because we find the trial court properly admitted the lay witness testimony of Anthony Schwalbauch under
{¶3} Appellant, Anthony Carter, was indicted on multiple felony counts as part of a multi-count indictment naming eleven defendants. While the indictment included seventy-seven counts, only counts one through six, eleven through thirteen, twenty, twenty-two, twenty-three, thirty-five, thirty-six, forty-three, forty-four, forty-eight, forty-nine, sixty-four and sixty-five pertained to Appellant. Prior to trial, the State moved to dismiss, and the trial court dismissed counts two through six, thirteen, twenty-two, twenty-three, forty-three and forty-four. Appellant was subsequently found guilty by a jury of the remaining counts, identified as counts one, eleven, twelve, twenty, thirty-five, thirty-six, forty-eight, forty-nine, sixty-four and sixty-five.
{¶4} The counts in which Appellant was convicted included one count of engaging in a pattern of corrupt activity, seven counts of trafficking in cocaine, and two counts of trafficking in heroin, all of which ranged from first-degree felonies to third-degree felonies. The trial court imposed an aggregate prison term of thirty-one years, ordering the prison terms for counts one, eleven, twelve, twenty, thirty-five, thirty-six, forty-eight and forty-nine to be served consecutively for a total of thirty years. The trial court determined that counts sixty-four and sixty-five merged for
{¶5} Appellant‘s indictment was the result of an investigation into what both parties refer to as either the “Crosby Drug Trafficking Operation” or the “Leslie Alan Crosby drug trafficking operation” located in Circleville, Ohio in 2016. Although Appellant was not the original focus of the investigation, law enforcement became aware of his affiliation and involvement with the drug trafficking operation through the course of their investigation, when they recognized Appellant was a supplier to the operation. The investigation involved law enforcement‘s receipt of an “intercept warrant” which permitted a wiretap of Crosby‘s phone, and which ultimately provided law enforcement with recordings of conversations between Appellant, Crosby and others as they set up drug transactions. The investigation further included observation of drug transactions by officers while conducting covert surveillance. No drugs were recovered as part of the investigation.
{¶7} As set forth above, Appellant was ultimately convicted on all ten counts that were presented to the jury and was sentenced to an aggregate prison term of thirty-one years. It is from the trial court‘s entry of sentence
ASSIGNMENTS OF ERROR
“I. TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL TO APPELLANT, BY FAILING TO OBJECT TO THE TESTIMONY OF ANTHONY SCHWALLBACH [SIC] WHEN HE GAVE OPINION TESTIMONY AS TO WEIGHTS AND MEASURES OF DRUGS AND AMOUNTS, AS WELL AS OPINIONS AS TO WHAT THE WIRETAP RECORDED SPEAKERS MEANT BY THEIR CONVERSATIONS. THIS CONSTITUTED A DENIAL OF APPELLANT‘S RIGHTS TO A FAIR TRIAL, CONFRONTATION OF WITNESSES, REPRESENTATION OF COUNSEL AND DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.
II. THE TRIAL COURT ERRED BY FAILING TO PROVIDE A MEANINGFUL SENTENCING HEARING FOR APPELLANT, AS REQUIRED BY OHIO‘S SENTENCING STATUTE. TRIAL COUNSEL FURTHER RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO PARTICIPATE IN THIS SENTENCING HEARING.”
ASSIGNMENT OF ERROR I
{¶8} In his first assignment of error, Appellant contends he was denied the effective assistance of counsel, which resulted in a denial of his right to a fair trial, confrontation of witnesses, and due process of law. Appellant argues that his counsel‘s failure to object to his co-defendant‘s opinion testimony regarding weights, measures and amounts of drugs as
{¶9} The State responds by noting that many courts in Ohio have allowed lay witnesses to testify, under
{¶10} The
{¶11} To establish constitutionally ineffective assistance of counsel, a defendant must show (1) that his counsel‘s performance was deficient and (2) that the deficient performance prejudiced the defense and deprived the defendant of a fair trial. Strickland at 687; State v. Obermiller, 147 Ohio St.3d 175, 2016–Ohio–1594, 63 N.E.3d 93, ¶ 83; State v. Powell, 132 Ohio St.3d 233, 2012–Ohio–2577, 971 N.E.2d 865, ¶ 85. “Failure to establish either element is fatal to the claim.” State v. Jones, 4th Dist. Scioto No. 06CA3116, 2008–Ohio–968, ¶ 14. Therefore, if one element is dispositive, a court need not analyze both. State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E .2d 52 (2000) (stating that a defendant‘s failure to satisfy one of the elements “negates a court‘s need to consider the other“).
{¶14} To establish prejudice, a defendant must demonstrate that a reasonable probability exists that ” ‘but for counsel‘s errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine the outcome.’ ” Hinton at 1089; quoting Strickland at 694; e.g., State v. Short, 129 Ohio St.3d 360, 2011–Ohio–3641, 952 N.E.2d 1121, ¶ 113; State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph three of the syllabus (1989). ” ‘[T]he question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.’ ” Hinton at 1089; quoting Strickland at 695. Furthermore, courts may not simply assume the existence of prejudice, but must require the defendant to affirmatively establish prejudice. State v. Clark, 4th Dist. Pike No. 02CA684, 2003–Ohio–1707, ¶ 22; State v. Tucker, 4th Dist. Ross No. 01CA2592, 2002-Ohio-1597. As we have repeatedly recognized, speculation is insufficient to demonstrate the prejudice component of an ineffective assistance of counsel claim. E.g., State v. Jenkins, 4th Dist. Ross No. 13CA3413, 2014–Ohio–3123, ¶ 22; State v. Simmons, 4th Dist. Highland No. 13CA4, 2013–Ohio–2890, ¶ 25; State v. Halley, 4th Dist. Gallia No. 10CA13, 2012–Ohio–1625, ¶ 25; State v. Leonard, 4th Dist. Athens No. 08CA24, 2009–Ohio–6191, ¶ 68; accord State v. Powell, 132 Ohio St.3d 233, 2012–Ohio–2577, 971 N.E.2d 865, ¶ 86 (stating that an argument that is purely speculative cannot serve as the basis for an ineffectiveness claim).
{¶15} Initially, we observe that ” ‘[t]he failure to object to error, alone, is not enough to sustain a claim of ineffective assistance of counsel.’ ” State v. Fears, 86 Ohio St.3d 329, 347, 715 N.E.2d 136 (1999); quoting
{¶16} As the court explained in Johnson at ¶ 139–140:
“[F]ailure to object to error, alone, is not enough to sustain a claim of ineffective assistance of counsel. To prevail on such a claim, a defendant must first show that there was a substantial violation of any of defense counsel‘s essential duties to his client and, second, that he was materially prejudiced by counsel‘s ineffectiveness. State v. Holloway (1988), 38 Ohio St.3d 239, 244, 527 N.E.2d 831. * * * [E]xperienced trial counsel learn that objections to each potentially objectionable event could actually act to their party‘s detriment. * * * In light of this, any single failure to object usually cannot be said to have been error unless the evidence sought is so prejudicial * * * that failure to object essentially
defaults the case to the state. Otherwise, defense counsel must so consistently fail to use objections, despite numerous and clear reasons for doing so, that counsel‘s failure cannot reasonably have been said to have been part of a trial strategy or tactical choice. Lundgren v. Mitchell (C.A.6, 2006), 440 F.3d 754, 774. Accord State v. Campbell, 69 Ohio St.3d 38, 52–53, 1994–Ohio–492, 630 N .E.2d 339.”
{¶17} Here, Appellant contends his counsel was ineffective for failing to object to the following trial testimony from his co-defendant, Anthony Schwalbauch:
- Testimony that “brown girl” meant heroin;
- Testimony that “...one and a half, maybe two” actually meant two ounces, not grams, and was in reference to crack cocaine;
- Testimony that a “mule” was a female who was used to transport drugs “shoved up inside her, and concealed so it would not be detected[;]”
- Testimony which provided an estimate of how much an ounce and a half of crack cocaine would cost Alan Crosby, either $1,800.00 or $1,900.00;
- Testimony regarding a prior deal for two ounces for $2,400.00 and that it took a day and a half to get rid of an ounce of crack;
- Testimony which interpreted a telephone conversation between Crosby and Tommy Barker in which Barker asks if Crosby has any “boy” and explained that “boy” really means heroin;
- Testimony which interpreted a telephone conversation between Crosby and another person in which the caller referenced a “...car that was half a
gram” and explained that it denoted heroin; and - Testimony on cross-examination and re-cross that “girl” or “hard” meant crack cocaine.
{¶18} Appellant also argues Schwalbauch was improperly permitted to testify about what other people, such as Crosby‘s wife Rhonda and Crosby‘s family in general, knew. Appellant cites to a call between Crosby and his wife, noted as number 8619 in the trial transcript, in which Crosby‘s wife is complaining about Crosby sitting in a car and waiting for over three hours to purchase crack cocaine. When asked whether Crosby‘s wife knew that Crosby was there to purchase crack cocaine, Schwalbauch testified she did, and that the whole family knew.
{¶19} Finally, Appellant argues Schwalbauch should not have been permitted to testify regarding what the phrase “talking a lot” meant when it was used during a recorded telephone conversation between Appellant and Crosby. The trial transcript indicates the following recorded conversation between Alan Crosby and Appellant was played for the jury:
“Anthony Carter: Hey, that‘s cool!
Leslie Crosby: Cause that‘s the price you asked, right? A half, point six. You know, that‘s $2,600 for two, $1,300 and $1,325 is $2,650, I‘m giving you $1,950 so that‘s one and a half, right?
Anthony Carter: Yeah!
Leslie Crosby: Is that right?
Anthony Carter: Sounds like I aunt’ even doing the math. Leslie Crosby: Well, do it Bubba! I‘m not cheating you. I‘m giving you $1,325 an ounce, that‘s one and a half at $1,950.
Anthony Carter: Yeah, you‘re talking a lot. You hear me.
Leslie Crosby: Okay. Okay. You‘re right. I‘m sorry. I‘ll see you when you get there bro! Bye!”
Anthony Schwalbauch then testified as follows in order to interpret the call:
“Q: Okay. Then they said something, Carter says you‘re talking a lot, you hear me, and Leslie apologizes. Do you remember that?
A: Yes.
Q: Why would he have said something like that?
A: Sometimes because you think you‘re being recorded, to use code words instead.
Q: Was that a concern that Alan had then?
A: Always.
Q: Was that just a general concern in the drug world?
A: Always.
Q: Did you do that on your personal phone?
A: Yeah.
Q: Did you ever talk in ounces and grams about heroin or crack cocaine?
A: No.
Q: You always use what? A: Code words.”
{¶20} Thus, in summary, Appellant argues his trial counsel should have objected to various statements made by his co-defendant which interpreted code words or slang words used in the drug trade, and which explained the significance of references made by Appellant and Crosby to the price being paid for requested amounts, to the extent the testimony served to identify the drug at issue and the weight or amount of the drug, based upon the language used in the recorded telephone conversations. Appellant also argues Schwalbauch should not have been permitted to testify regarding what Crosby‘s wife and family “knew” regarding the activities of Crosby or the drug operation in general. Appellant contends his co-defendant should have been qualified as an expert pursuant to
{¶21}
If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.
Conversely,
“A witness may testify as an expert if all of the following apply:
(A) The witness’ testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons;
(B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony;
(C) The witness’ testimony is based on reliable scientific, technical, or other specialized information. To the extent that the testimony reports the result of a procedure, test, or experiment, the testimony is reliable only if all of the following apply:
(1) The theory upon which the procedure, test, or experiment is based is objectively verifiable or is validly derived from widely accepted knowledge, facts, or principles; (2) The design of the procedure, test, or experiment reliably implements the theory;
(3) The particular procedure, test, or experiment was conducted in a way that will yield an accurate result.”
{¶22} Contrary to Appellant‘s argument, and as correctly noted by the State, since the adoption of the Rules of Evidence, both at the state and federal levels, many courts have used an
“[C]ourts have permitted lay witnesses to express their opinions in areas in which it would ordinarily be expected that an expert must be qualified under
Evid.R. 702 .... Although these cases are of a technical nature in that they allow lay opinion testimony on a subject outside the realm of common knowledge, they will fall within the ambit of the rules requirement that a lay witness‘sopinion be rationally based on firsthand observations and helpful in determining a fact in issue. These cases are not based on specialized knowledge within the scope of Evid. R. 702 , but rather are based upon a layperson‘s personal knowledge and experience.” Johnson at ¶ 38.
The Supreme Court of Ohio held, in McKee, that the “experience and knowledge of a drug user lay witness can establish his or her competence to express an opinion on the identity of a controlled substance if a foundation for this testimony is first established.” McKee at 297; see also State v. Johnson at ¶ 39 (allowing lay testimony of the defendant as opinion testimony to identify a hydrocodone pill based upon the fact that the defendant had had a prior prescription for hydrocodone and recognized the pill from her previous experience.); State v. Jewett, 4th Dist. Scioto No. 15CA3714, 2017-Ohio-2891, ¶ 34.
{¶23} Further, although lay witness testimony regarding the identity of a drug was permitted based upon the witnesses’ visual identification of the drug in Johnson, lay witness testimony has also been permitted in order to interpret code, or slang, terms used in the drug trade, which serve to provide identification of drugs by name, amount and price, as heard on recorded telephone conversations. See State v. Davis, 2017-Ohio-495, 85 N.E.3d 136,
{¶24} Further, and importantly, this Court has previously noted that:
“* * * in offenses where the state fails to recover and weigh the drugs, the offender may be convicted of the offense and the
Similarly, in State v. Rardon, 2018-Ohio-1935, -- N.E.3d -- (5th Dist.), the trial court permitted lay witness testimony from the defendant‘s business associate, based upon his experience using steroids in the past. Id. at ¶ 5. The witness provided testimony that the term “gear” was “just a short-term for steroids where if you‘re talking in public, you don‘t want people to, . . . understand what you‘re talking about with steroids, so you say gear.” Id. at ¶ 58. This testimony was important as the term gear was used in text messages taken from the defendant‘s phone. Id. at ¶ 58.
{¶25} The record indicates that Anthony Schwalbauch was Appellant‘s co-defendant and the son-in-law of Leslie Alan Crosby, the apparent ring-leader of the drug operation. The investigation of Crosby led authorities to Appellant as a suspected supplier to Crosby. Schwalbauch
{¶26} Schwalbauch testified regarding his experience using drugs and the difference between the high resulting from heroin use versus cocaine use. Thus, it appears Schwalbauch was intimately involved in the drug operation and had the experience necessary to establish a foundation for his testimony. As such, having laid a proper foundation, the State was permitted to introduce further testimony from Schwalbauch as a lay witness to the extent that his testimony dealt with issues outside the realm of common knowledge, was rationally based on firsthand observations and helpful in determining a fact in issue. His testimony aided the jury in interpreting the voluminous recordings of telephone conversations involving Appellant, Crosby and others that all occurred as part of the drug operation.
{¶28} With regard to Appellant‘s argument his trial counsel should have objected to Schwalbauch‘s testimony regarding what Crosby‘s wife and family “knew” about his activities, assuming arguendo it was error for the trial court to permit Schwalbauch to testify regarding someone else‘s knowledge or understanding and that counsel should have lodged an objection, we find any error to be harmless in light of the Schwalbauch‘s
{¶29} As a result, because we cannot conclude that trial counsel‘s failure to object constituted deficient performance, we find no merit to Appellant‘s first assignment of error. Accordingly, Appellant‘s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
{¶30} In his second assignment of error, Appellant contends the trial court erred by failing to provide a meaningful sentencing hearing for him, as required by Ohio‘s sentencing statutes. Appellant contends trial counsel further rendered ineffective assistance by failing to participate in his sentencing hearing. The State responds by arguing that Appellant‘s trial
{¶31} When reviewing felony sentences, appellate courts must apply the standard of review set forth in
“(a) That the record does not support the sentencing court‘s findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.”
{¶32} Here, Appellant does not expressly contend his sentences were contrary to law, or that the record does not support his sentences. The only sentencing arguments he seems to make is that his sentence was not proportionate to the sentence imposed on Leslie Alan Crosby, and that the trial court did not “meaningfully explain why a series of consecutive sentences were appropriate or how they were necessary to protect the public from future crimes or to punish the Appellant by imposing a minimum sanction.” In making this argument, however, Appellant concedes the trial court noted several factors in imposing sentence, including that Appellant had a number of juvenile adjudications and commitments to the Department of Youth Services (DYS), had been convicted of attempted felonious assault and carrying a concealed weapon as an adult, and was on community control at the time of the present offenses. Appellant concedes the trial court also considered the pre-sentence investigation report that was provided, which indicated he had thirty-three rule violations while in prison and was a member of a gang.
{¶33} We first address Appellant‘s argument that his sentence was disproportionate to the sentence or sentences imposed upon Leslie Alan
” ’ “A defendant alleging disproportionality in felony sentencing has the burden of producing evidence to ‘indicate that his sentence is directly disproportionate to sentences given to other offenders with similar records who have committed these offenses * * *.’ ” ’ State v. Norman, 3rd Dist. Seneca No. 13-13-50, 2014-Ohio-3010, ¶ 17, quoting State v. Ewert, 5th Dist. Muskingum No. CT2012-0002, 2012-Ohio-2671, ¶ 31, quoting State v. Breeden, 8th Dist. Cuyahoga No. 84663, 2005-Ohio-510, ¶ 81. ‘If a defendant fails to argue to the trial court that his sentence is not consistent with or proportionate to sentences imposed for similar crimes committed by similar offenders, then the defendant waives that issue for appeal.’ Id., citing Ewert at ¶ 31, citing State v. Santiago, 8th Dist. Cuyahoga No. 95516, 2011-Ohio-3058, ¶ 42 and State v. Lycans, 8th Dist. Cuyahoga No. 93480, 2010-Ohio-2780, ¶ 5.” State v. VanMeter, 3d Dist. Allen No. 1-18-18, 2018-Ohio 3528, ¶ 16.
{¶34} Further, the information in the record before supports the trial court‘s imposition of consecutive sentences. Under
“(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense. (b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct.
(c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.”
{¶35} The trial court “is required to make the findings mandated by
{¶36} Here, the trial court made all of the necessary findings before imposing consecutive sentences. Further, and importantly, the trial court stated during the sentencing hearing that the pre-sentence investigation report was very damaging and revealed extensive criminal conduct, including juvenile felony offenses, commitments to DYS and adult convictions for attempted felonious assault and carrying a concealed weapon. The trial court further noted that Appellant was on post-release control at the time the current offenses were committed and that Appellant was in a gang.
{¶37} In light of the foregoing, we cannot conclude that Appellant failed to receive a meaningful sentencing hearing. Further, with regard to
{¶38} Thus, having found no merit in Appellant‘s second assignment of error, it is overruled. Accordingly, the judgment of the trial court is affirmed.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Pickaway County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Hoover, P.J. & Abele, J.: Concur in Judgment and Opinion.
For the Court,
BY:
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.