State v. CranfordState v. Cranford
Rendered on the 28th day of January, 2011.
John J. Danish, City Attorney; Stephanie L. Cook, Chief Prosecutor; Troy B. Daniels, Atty. Reg. No.0084957; Andrew D. Sexton, Atty. Reg. No. 0070892, Asst. City Prosecutors, 335 W. Third Street, Rm. 372, Dayton, OH 45402
Attorneys for Plaintiff-Appellee
Bryan K. Penick, Atty. Reg. No.0071489, 371 West First Street, Suite 200, Dayton, OH 45402
Attorney for Defendant-Appellant
GRADY, P.J.:
{¶ 1} Defendant, Jeffrey V. Cranford, Sr., was charged by complaint filed in The Dayton Municipal Court with a violation of
{¶ 2}
{¶ 3} Dayton Police Officers Thomas Schloss and Jon Zimmerman testified at Defendant’s trial that on February 26, 2008, at 5:25 p.m., they were dispatched to 422 Blackwood Avenue in Dayton, on a citizen complaint that Defendant Cranford was selling drugs from that location. When they arrived, Officer Zimmerman went to the rear of the house and Officer Schloss went to the front door.
{¶ 4} Officer Schloss testified that when he knocked on the door, Defendant looked through a window in the door and said, “hold on a minute.” Defendant then ran to a rear area of the house. When Officer Schloss looked through another window he saw another
{¶ 5} Defendant returned to the front door and opened it. Officer Schloss testified that he asked Defendant whether the house was his residence, and that Defendant answered “yes.” (T. 10). Defendant then opened the door further and allowed Officer Schloss and Officer Zimmerman, who by then had joined him, inside.
{¶ 6} Both officers testified that Defendant was told that the officers had come on a complaint of drug activity at Defendant’s residence. Officer Schloss asked for permission “to look around for any signs of drug(s) or drug activity coming from the residence.” (T. 11). Officer Schloss testified that Defendant gave a verbal consent to check the premises.
{¶ 7} Officer Zimmerman left the living room to inspect the back rooms of the house. Officer Schloss retrieved the digital scales from the other man in the room. Officer Schloss testified that he field-tested white residue on the scales which tested positive for cocaine. That result was later confirmed by a laboratory test.
{¶ 8} Officer Zimmerman recovered a pill bottle containing suspected crack cocaine from a back bedroom that Defendant said was his son’s bedroom. When the pill bottle tested positive for
{¶ 9} When asked what further search he performed following Defendant’s written consent, Officer Zimmerman testified:
{¶ 10} “A. I initially went back to the bedroom where I had found the bottle of crack cocaine. Didn’t observe anything in there out of the usual. I then went into another bedroom where Miss Burgess’s purse was located. It contained her identification, which she was lying about her initial identification, and her ID, social security card, three hypodermic syringes, a pen, and a blue tourniquet were located inside her purse.
{¶ 11} “Also it appeared Mr. Cranford was running a boot joint type stand out of his bedroom. Inside of his closet was a very large and extensive collection of like flavored wraps for smoking marijuana. There was a couple pieces of chore boy, which is commonly used for packing crack pipes, extensive amounts of odds and ends of where somebody might have purchased from a store to go on about their day. I then located a firearm inside of the
{¶ 12} “Q. And that was in a separate bedroom from the one you initially searched based on verbal consent, correct?
{¶ 13} “A. That’s correct.
{¶ 14} “Q. Did Mr. Cranford indicate who’s (sic) bedroom you were in at this point?
{¶ 15} “A. Where I located --
{¶ 16} “Q. The gun and the other paraphernalia?
{¶ 17} “A. He said it was his.
{¶ 18} “Q. And it appeared to be used as a bedroom in addition to the other things that you suggested?
{¶ 19} “A. That’s correct.” (T. 38-39).
{¶ 20} Officer Schloss testified that “a silver spoon with heroin residue on it” (T. 20) was also found in Lyndsey Burgess’s purse, and that she was arrested for drug possession. Officer Schloss
{¶ 21} further testified that tests subsequently performed by the Miami Valley Regional Crime Laboratory confirmed that the syringes and metal spoon found in Burgess’s purse contained heroin.
{¶ 22} A further search of the residence produced cocaine
{¶ 23} Officer Zimmerman testified that following Defendant’s arrest the officers engaged in standard nuisance abatement procedures, which allow persons who engage in criminal activities
{¶ 24} to be “trespassed off” real property where the criminal conduct occurred. Officer Zimmerman confirmed that the residence address Defendant gave officers for that purpose was the same location, 422 Blackwood Avenue.
{¶ 25} Defendant disputed the officers’ testimony. Defendant testified that 422 Blackwood Avenue is his son’s residence, not his, and that he was there only to pick up his young grandson. Defendant testified that he resides at 3426 East Fifth Street. Defendant insisted that he never told officers that he lives on the premises. Defendant also testified that he did not see any drug activity in the house.
{¶ 26} Defendant conceded that he gave officers his consent to search the premises. However, he testified that he believed they merely intended to search for other persons when he gave an oral consent to search. Defendant testified that he believed the written consent he signed pertained to a nuisance abatement issue. Defendant timely appealed to this court.
FIRST ASSIGNMENT OF ERROR
{¶ 27} “APPELLANT’S RULE 29 MOTIONS SHOULD HAVE BEEN GRANTED.”
SECOND ASSIGNMENT OF ERROR
{¶ 28} “APPELLANT’S CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
{¶ 29} In these related assignments of error, Defendant argues that the trial court erred in overruling his
{¶ 30} When considering a
{¶ 31} A
{¶ 32} “An appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.”
{¶ 33} Defendant was found guilty of permitting drug abuse in violation of
{¶ 34} “No person who is the owner, lessee, or occupant, or who has custody, control, or supervision, of premises or real estate, including vacant land, shall knowingly permit the premises or real estate, including vacant land, to be used for commission of a felony drug abuse offense by another person.”
{¶ 35} “Knowingly” is defined in
{¶ 36} “A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist.”
{¶ 37} Both officers testified that Defendant said the premises at 422 Blackwood Avenue was his residence. Officer Zimmerman testified that Defendant said that one of the bedrooms in the house was his and that drug paraphernalia found inside a closet in the room belonged to him. That evidence, if believed, is sufficient to prove that Defendant was at least an occupant of the premises at 422 Blackwood Avenue.
{¶ 38} At oral argument of this appeal, Defendant contended that his conviction for the charge alleged in the complaint is against the manifest weight of the evidence because that evidence fails to demonstrate that he knew of the contents of Lyndsey Burgess’s purse. We agree that there is no direct evidence of
{¶ 39} In the bedroom that Defendant said was his, Officer Zimmerman found a purse belonging to Lyndsey Burgess, inside which were syringes and a spoon containing heroin, and a tourniquet. Officers also found cocaine, crack cocaine, and drug paraphernalia elsewhere in the house. Possession of cocaine and heroin are felony drug offenses:
{¶ 40} Officer Schloss testified that Defendant, though he denied selling drugs, admitted that other people come to the house to “do drugs,” and that he knew drugs were being used in his residence. The court could reasonably infer that those other persons committed felony drug offenses on the premises, and that Defendant knowingly permitted that to happen, which is sufficient to prove the violation of
{¶ 41} Defendant additionally argues that his conviction is against the manifest weight of the evidence. A weight of the evidence argument challenges the believability of the evidence and asks which of the competing inferences suggested by the evidence is more believable or persuasive. State v. Hufnagle (Sept. 6, 1996), Montgomery App. No. 15563. The proper test to apply to that inquiry is the one set forth in State v. Martin (1983), 20 Ohio App.3d 172, 175:
{¶ 42} “The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” Accord: State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52.
{¶ 43} The credibility of the witnesses and the weight to be given to their testimony are matters for the trier of facts to resolve. State v. DeHass (1967), 10 Ohio St.2d 230. In State v. Lawson (August 22, 1997), Montgomery App. No. 16288, we observed:
{¶ 44} “Because the factfinder . . . has the opportunity to
see and hear the witnesses, the cautious exercise of the discretionary power of a court of appeals to find that a judgment is against the manifest weight of the evidence requires that substantial deference be extended to the factfinder’s determinations of credibility. The decision whether, and to what extent, to credit the testimony of particular witnesses is within the peculiar competence of the factfinder, who has seen and heard the witness.”
{¶ 45} This court will not substitute its judgment for that of the trier of facts on the issue of witness credibility unless it is patently apparent that the trier of facts lost its way in arriving at its verdict. State v. Bradley (Oct. 24, 1997), Champaign App. No. 97-CA-03.
{¶ 46} We have concluded that the evidence presented in this case, including Defendant’s statements to police, was sufficient to prove that he was an occupant of the residence at 422 Blackwood Avenue and/or had custody, control, or supervision of that premises, and that he knowingly permitted Lyndsey Burgess to use the residence to commit felony drug abuse offenses. A weight of the evidence argument challenges the believability of evidence which is sufficient to convict, when weighed against other, contradictory evidence. The credibility of the witnesses and the weight to be given to their testimony were matters for the trier
{¶ 47} Reviewing this record as a whole, we cannot say that the evidence weighs heavily against a conviction, that the trier of facts lost its way in choosing to believe the State’s witnesses, or that a manifest miscarriage of justice has occurred. Defendant’s conviction is not against the manifest weight of the evidence.
{¶ 48} Defendant’s first and second assignments of error are overruled.
THIRD ASSIGNMENT OF ERROR
{¶ 49} “APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.”
{¶ 50} Defendant argues that he was deprived of the effective assistance of counsel at trial because counsel (1) failed to file a motion to suppress the evidence, and (2) vouched for the credibility of the police officers who testified while making a
{¶ 51} In order to demonstrate ineffective assistance of trial counsel, Defendant must demonstrate that counsel‘s performance was deficient and fell below an objective standard of reasonable
Failure to File Motion To Suppress
{¶ 52} Defendant argues that his trial counsel performed in a deficient manner by failing to file a motion to suppress the evidence police obtained during their warrantless search of Defendant’s residence. A review of this record reveals that counsel did file a pretrial motion to suppress the evidence on March 6, 2008, challenging the warrantless search of Defendant’s residence. Counsel, however, subsequently withdrew that motion before the court had ruled upon it.
{¶ 53} Both Officer Schloss and Officer Zimmerman testified that Defendant orally consented to their initial search of his residence, and then after the officers discovered cocaine they presented a written consent to search form to Defendant which he reviewed and signed prior to their further search of Defendant’s residence. Consent is a well recognized exception to the Fourth Amendment’s warrant requirement because it constitutes a decision by a citizen not to assert his Fourth Amendment rights.
Vouching for Credibility of Police Officers
{¶ 54} After the State rested, defense counsel moved for a verdict of acquittal pursuant to
{¶ 55} “Ms. Schafer: I believe that everything that the officers said here today is probably true. I know these officers to be good, honest officers, and in fact they have been to my house and helped me personally, so I want to start with that.
{¶ 56} “But that being said, everything if they are saying is true, does not prove the crime charged. State has failed to make its case, in that it has not shown that Mr. Cranford was the owner, lessee, or occupant or in the custody, control, or supervision of the premises.” (T. 47).
{¶ 57} Defendant argues that these comments by his counsel
{¶ 58} Viewed in the context in which it was made, defense counsel’s statement that “everything the officers said here today is probably true” is merely consistent with the standard that
{¶ 59} Defendant argues that counsel’s statement was nevertheless both improper and prejudicial, because it necessarily undercut Defendant’s subsequent testimony contradicting the officers and permitted finding of guilt. We are likewise troubled by counsel’s gaffe. However, Strickland requires a finding that but for counsel’s unprofessional errors, there is a reasonable probability that the outcome of the trial would be different. We are unable to make that finding.
{¶ 60} Had this remark been made in front of a jury, a claim
Conflict of Interest
{¶ 61} In certain cases, such as where defense counsel has an actual conflict of interest, the standard used to determine the existence of ineffective assistance of counsel is different. In those cases, where counsel has breached his duty of loyalty to his client and his duty to avoid conflicts of interest, the defendant is not required to show that he or she has been prejudiced by counsel’s deficient performance. Strickland. Rather, prejudice is presumed if the defendant demonstrates that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer’s performance. Id., at 692, quoting Cuyler v. Sullivan (1980), 446 U.S. 335, 350, 100 S.Ct. 1708, 64 L.Ed.2d 333.
{¶ 62} In Cuyler, the Supreme Court described a conflict of interest as a “struggle to serve two masters.” Id., at 349. The
{¶ 63} This record fails to demonstrate that Defendant’s trial counsel was furthering anyone’s interest other than Defendant’s. We have already concluded that the comments counsel made during her
{¶ 64} Additionally, in rendering its guilty verdict the trial court explained why it found the testimony of the police officers in this case to be credible: they had no axe to grind in this
{¶ 65} Defendant’s third assignment of error is overruled.
The judgment of the trial court will be affirmed.
FAIN, J. And FROELICH, J., concur.
Copies mailed to:
Troy B. Daniels, Esq.
Andrew D. Sexton, Esq.
Bryan K. Penick, Esq.
Hon. Deirdre Logan