2004 Ohio 2252 | Ohio Ct. App. | 2004
{¶ 2} Appellant assigns the following errors for review:
First Assignment of Error:
"The trial Court erred as a matter of law by sentencing appellant to one and one-half years on the felony of the Fifth Degree charges."
Second Assignment of Error:
"The trial court erred as a matter of law and to the prejudice of appellant by sentencing appellant on count 1 and count II [sic] where appellant could not be convicted of a felony of the first degree and a felony of the Third Degree, respectively."
Third Assignment of Error:
"Appellant's conviction for engaging in a pattern of corrupt activity was against the manifest weight of the evidence and is error as a matter of law where the statutory requirements were not met."
Fourth Assignment of Error:
"The court erred as a matter of law in giving the jury instructions and in answering questions from the jury."
Fifth Assignment of Error:
"The trial court erred by sentencing appellant in count ii to a felony sentence where the correct sentencing [ sic] was for a minor misdemeanor."
Sixth Assignment of Error:
"Appellant was denied his right to a fair trial due to the ineffective assistance of counsel under both [the] Ohio and Unitied [sic] states constitution[s.]"
Seventh Assignment of Error:
"Counsel represents that she can find no other error present in the record and requests this court to independently review the record for any such error."
{¶ 3} In January and February of 2001, Brian Jones made four undercover drug purchases from appellant on behalf of the Adams County Sheriff's Department.3 The Sheriff's Department used the purchases as a basis for obtaining a search warrant. During the warrant's execution, authorities found in appellant's home large caches of marijuana and other drugs as well as drug paraphernalia. Authorities also found forty-one (41) marijuana plants growing beneath appellant's home.
{¶ 4} The Adams County Grand Jury returned an indictment on May 31, 2001 charging appellant with (1) one count of engaging in a pattern of corrupt activity, in violation of R.C.
{¶ 5} Appellant pled not guilty to all charges and the matter came on for jury trial over several days in August 2002. At trial, Jones described the undercover drug purchases he made from appellant. His story was corroborated by Detective Jeff McCarty who testified that he listened to the drug deals by way of a wire worn by Jones. Moreover, Detective McCarty described many items (e.g. marijuana, marijuana plants, narcotics and a ledger for recording drug sales) removed from appellant's home. Appellant testified in his own defense and denied that he sold drugs to Jones. In fact, appellant claimed that Jones tried to sell him drugs. Appellant denied that the marijuana and other drugs taken from his home belonged to him and further explained that the so-called drug sale ledger was simply a way to record loan transactions with friends.5
{¶ 6} The jury was apparently unswayed by appellant's account of these events and returned verdicts finding him guilty on all but the last count of the indictment (drug possession). The trial court issued a judgment of conviction on August 14, 2002 and the matter was passed for pre-sentence investigation.
{¶ 7} At appellant's sentencing hearing, the trial court ordered appellant to serve eight years in prison on Count I (engaging in a pattern of corrupt activity) and four years in prison on Count II (drug possession), with the two sentences to run consecutively to each other. On the remaining seven counts, the court sentenced appellant to serve one and one half year prison sentences on each, to run consecutively to each other as well as the sentences for Counts I II. This appeal followed.
{¶ 9} We further note the notice of plain error under Crim.R. 52(B) is to be taken with the utmost of caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice. State v. Barnes (2002),
{¶ 11} Counts IV-IX are fifth degree felonies. The original indictment alleged that Count III was a third degree felony but, on August 14, 2002, the prosecution amended the indictment to reflect a fifth degree felony. R.C.
{¶ 13} As noted above, possession of marijuana is generally a minor misdemeanor, Id. at (C)(3)(a). The offense becomes a third degree felony when the amount in possession exceeds one thousand grams. Id. at (C)(3)(d)(e). When the severity of the offense is determined by the amount of controlled substance involved, the amount becomes an essential element of the offense. See State v.Smith (1983),
{¶ 14} The prosecution does not contest that the jury instructions were incomplete. Rather, the prosecution argues that appellant did not object to the jury instruction and we should not recognize plain error because appellant cannot show that the outcome of the trial would have been different. We are not persuaded. This is not a case of an erroneous instruction — it is a case of no instruction at all. Quite simply, a jury cannot convict on an offense for which it was never instructed. We recognize that the lack of a jury instruction was the result of an unintentional oversight. Nevertheless, we again note that the jury did not receive an instruction on a critical element of the offense.
{¶ 15} Appellant also objects to a supplementary instruction given to the jury. During deliberations, the jury sent a question to the trial court7 "is it trafficking if you knowingly let drugs be sold from your residence and/or property?" The Court then instructed the jury that "[a] person can be an accessory, and just as guilty as the principal if you permit this." Appellant claims that this allowed the jury to find him guilty of acts committed by another person and/or "complicity" and "aiding and abetting" for which he was never charged. We disagree.
{¶ 16} To begin, although the prosecution does not expressly address this particular argument in its brief, we believe that its contention with respect to the rest of the fourth assignment of error would apply (i.e., appellant did not object to this supplemental instruction and any potential error does not rise to the level of plain error). We also disagree with appellant's claim that the jury found him guilty of criminal acts committed by someone else. The uncontroverted evidence at trial was that the home from which the drugs were sold belonged to appellant. Both Jones and Detective McCarty testified that appellant sold the drugs. Appellant denied selling drugs and testified that two family members stayed with him at the time, but adduced no evidence to indicate that his family members sold the drugs. In short, we find no evidence before the jury established they could have found appellant guilty of complicity or aiding and abetting. Appellant either sold the drugs or he did not. The jury found that he did.
{¶ 17} That said, we nevertheless agree with appellant that the court did not instruct the jury on the amount of marijuana necessary to return a guilty verdict on the offense charged in Count II of the indictment. Accordingly, appellant's fourth assignment of error is hereby well taken and sustained to the extent outlined above and this matter is hereby remanded for a new trial on this issue.
When the presence of one or more additional elements makes an offense one of more serious degree:
{¶ 19} The affidavit, complaint, indictment, or information either shall state the degree of the offense which the accusedis alleged to have committed, or shall allege such additionalelement or elements. Otherwise, such affidavit, complaint, indictment, or information is effective to charge only the least degree of the offense." (Emphasis added.)
{¶ 20} Appellant argues that because the amount of marijuana was not set out in the indictment, this statute mandates that he can only be convicted of a minor misdemeanor. We disagree with appellant.
{¶ 21} Crim.R. 7(B) requires that an indictment allege that an offender has committed an offense and give the offender adequate notice of the charges lodged against him. See State v.Joseph (1995),
{¶ 22} Additionally, we note that no indication appears in the record that trial counsel objected to the indictment's alleged deficiency.
{¶ 23} Accordingly, based upon the foregoing reasons we overrule appellant's fifth assignment of error.
{¶ 25} Our analysis begins with R.C.
{¶ 26} The indictment charged appellant with a second degree felony for violating R.C.
{¶ 27} As we noted above, appellant's conviction on Count II of the indictment cannot stand because the jury was not instructed as to the amount of marijuana necessary for a third degree felony. If the Count II conviction cannot stand, and if that conviction was the predicate offense for a conviction on Count I, it logically follows that the Count I conviction cannot stand
{¶ 28} We note that our colleagues in the Third District reached the very same conclusion and reversed an R.C.
"As previously noted, the felony conviction under R.C.
{¶ 29} We arrive at the same conclusion. Because the jury did not receive the complete instruction on the predicate offense, and because appellant could not be convicted on that offense, he also cannot be convicted for a first degree felony violation of R.C.
{¶ 30} Accordingly, based upon these reasons, we hereby sustain appellant's second assignment of error.
{¶ 33} To obtain the reversal of a conviction on grounds of ineffective assistance of counsel, appellant must show that (1) his counsel's performance was deficient, and (2) such deficient performance prejudiced the defense so as to deprive him of a fair trial. See Strickland v. Washington (1984),
{¶ 34} First, appellant claims that counsel was ineffective for failing to file a motion to suppress evidence. The failure to file a motion to suppress is not per se indicative of ineffective assistance. State v. McGlone (1992),
{¶ 35} Although his argument is not entirely clear, appellant seems to suggest that the motion would have succeeded because in the affidavit for the search warrant, Detective McCarty attested that the audiotapes of the drug purchases made by Jones from appellant were clear. At trial, however, Detective McCarty testified that the tapes are not audible. From these alleged contradictory statements, appellant attempts to extrapolate an entire argument that the search warrant would have been denied and the evidence seized from the house would have been suppressed had trial counsel only filed a motion to suppress. We not persuaded.
{¶ 36} There are several flaws in this argument. The most glaring are (1) we find no indication that trial counsel knew of Detective McCarty's allegedly contradictory statements any time prior to trial — indeed, appellant is only able to construct this argument in hindsight using Detective McCarty's trial testimony; (2) irrespective of whether the audiotapes were audible, Jones still made drug purchases from appellant's home and this provides a sufficient basis for the search warrant's issuance; and (3) Detective McCarty also heard the drug purchases over the wire that Jones was wearing at the time and this also would have provided a basis for the search warrant.
{¶ 37} Appellant also asserts that counsel should have used these contradictory statements to impeach Detective McCarty at trial. That may be true, but appellant has not persuaded us that such an impeachment would have resulted in a different outcome. This area was only a minor point in Detective McCarty's testimony. Jones also testified concerning the drugs he purchased from appellant and Detective McCarty testified that he heard the transaction over Jones's wire. We do not see how a failure to impeach Detective McCarty on inconsistent statements with respect to whether the audiotapes were audible could have affected the outcome of the trial.
{¶ 38} Appellant also argues that trial counsel should have attempted to suppress the ledger or otherwise challenge its admissibility at trial. Appellant offers no reason as to why the ledger should have been suppressed or excluded, however, beyond a bare statement noting the absence of any "handwriting analysis" or authentication. We point out that it is mere speculation at this point on whether the ledger would have been admitted had such challenges been made. Also, appellant did not deny that the ledger was his. Rather, appellant tried to convince the jury that the entries included in the ledger represented the sale of fractional interests in junk.
{¶ 39} Appellant also asserts that counsel should have objected during closing argument when the prosecutor incorrectly identified some of the other drugs (e.g. valium and oxycontin) that appellant sold. We do not believe that the jury would have arrived at a different conclusion had the prosecution identified the correct drug names.
{¶ 40} Appellant also asserts that counsel should have made a Crim.R. 29 motion for acquittal in light of some of the other problems noted earlier in this opinion. Given that we have addressed those problems, and in some cases sustained appellants' assignments of error, this issue is now moot.
{¶ 41} Appellant also claims that defense counsel should have objected to the admission of appellant's "booking photo" because he had already been identified in court by Detective McCarty. We have no doubt that the admission of this photograph did not affect the outcome of this case.
{¶ 42} Appellant further asserts that trial counsel was defective for failing to object to the jury charge on Count II. Again, we have already reversed appellant's conviction on that point and the issue is moot. Likewise, appellant's argument that counsel did not object to sentencing errors on the fifth degree felonies is moot because we have also sustained his assignment of error on that issue.
{¶ 43} Appellant contends that his counsel should have challenged the prosecution's amendment of the indictment the day after trial. He does not offer any legal argument as to why such an amendment was in error, however, and we do not fault trial counsel for the same deficiency appellant himself displays on appeal.
{¶ 44} Appellant also asserts that counsel should have objected to testimony concerning the names and dates noted in his drug ledger on the grounds that it is hearsay. Assuming arguendo that this is hearsay, we find no indication that the testimony had an impact one way or the other.9 The most damaging evidence against appellant is the testimony of Jones and Detective McCarty who related the accounts of drug purchases and the contraband removed from appellant's home. In view of all of this evidence, we conclude that the outcome of trial would not have been otherwise had defense counsel objected to testimony concerning the notebook/ledger. Thus, we cannot conclude that appellant was prejudiced.
{¶ 45} We emphasize that although some errors occurred during the trial court proceeding that should have prompted counsel to object, we have recognized plain error in those instances and have reversed the conviction(s) to that extent. Removing those issues from consideration, we do not believe that the further claims of ineffective assistance cited by appellant in his brief rise to the level of reversible error. Accordingly, based upon the foregoing reasons we hereby overrule appellant's sixth assignment of error.
{¶ 47} First, the onus is on appellant to point to errors in the record. We additionally note that the United States Supreme Court set out a procedure for something of this sort in Andersv. California (1967),
{¶ 48} Second, App.R. 16(A)(7) require a separate argument for each assignment of error. Courts are free to disregard assignments of error that are not separately argued. App.R. 12(A)(2); also, see, Park v. Ambrose (1993),
{¶ 49} Having sustained the first and second assignment of error, and having partially sustained the fourth assignment of error, the judgment of the trial court is hereby reversed and the case is remanded for further proceedings consistent with this opinion.
Judgment Affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion.
Kline, P.J., concurs in judgment and opinion as to Assignments of Error I, II, III, IV, VI VII and dissents as to Assignment of Error V.
Harsha, J., concurs in judgment and opinion.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Adams 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, it is continued for a period of sixty days upon the bail previously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of the proceedings in that court. The stay as herein continued will terminate at the expiration of the sixty day period.
The stay will also terminate if appellant fails to file a notice of appeal with the Ohio Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to the expiration of said sixty days, the stay will terminate as of the date of such dismissal. A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Kline, P.J.: Concurs in Judgment Opinion as to Assignments of Error I, II, III, IV, VI VII Dissents as to Assignment of Error V
Harsha, J.: Concurs in Judgment Opinion
