State v. CrumptonState v. Crumpton
Mаllorie Thomas, Assistant State Public Defender, Office of the Ohio Public Defender, Columbus, Ohio, for appellant.
Shane A. Tieman, Prosecuting Attorney, and Jay Willis, Assistant Prosecuting Attorney, Portsmouth, Ohio, for appellee.
Hess, J.
{1} Isreal L. Crumpton appeals from a judgment of the Scioto County Court of Common Pleas convicting him, following a jury trial, of drug-related offenses and possessing criminal tools. He presents three assignments of error asserting: (1) the trial court committed plain error when it accepted a non-unanimous written jury verdict on Count Two; (2) the court erred in denying his motion to dismiss; and (3) the State failed tо introduce sufficient evidence to support his conviction for drugs recovered by a rental vehicle company. For the reasons which follow, we sustain the first assignment of error and overrule the second and third assignments of error. We reverse the conviction on Count Two and remand for resentencing on Count Eight, possession of heroin, with major
I. FACTS AND PROCEDURAL HISTORY
A. Pre-Trial Proceedings
{2} In August 2021, Crumpton was indicted on the following counts: (1) Count One, trafficking in a fentanyl-related compound, a first-degree felony; (2) Count Two, trafficking in heroin, a first-degree felony; (3) Count Three, trafficking in cocaine, a first-degree felony; (4) Count Four, aggravated trafficking in drugs (methamphetamine), a second-degree felony; (5) Count Five, aggravated trafficking in drugs (oxycodone), a fourth-degree felony; (6) Count Six, aggravated trafficking in drugs (amphetamine), a fourth-degree felony; (7) Count Seven, possession of a fentanyl-related compound, a first-degree felony; (8) Count Eight, possession of heroin, a first-degree felony; (9) Count Nine, possession of cocaine, a first-degree felony; (10) Count Tеn, aggravated possession of drugs (methamphetamine), a second-degree felony; (11) Count Eleven, aggravated possession of drugs (oxycodone), a fifth-degree felony; (12) Count Twelve, aggravated possession of drugs (amphetamine), a fifth-degree felony; (13) Count Thirteen, possession of marihuana, a minor misdemeanor; and (14) Count Fourteen, possessing criminal tools, a fifth-degree felony. Counts One, Two, Three, Seven, Eight, and Nine had major drug offender specifications. Crumpton was arraigned on October 15, 2021, and pleaded not guilty.
{3} On February 18, 2022, Crumpton filed motions to suppress identification еvidence, statements, and other evidence. The trial court conducted a hearing on the
{4} On July 26, 2022, Crumpton filed a motion to dismiss and/or exclude evidence premised on selective enforcement of the law based on race by the trooper who stopped the vehicle in which Crumpton was a passenger. After a hearing, the trial court denied the motion. The trial court explained:
Crim.R. 12(D) provides: All pretrial motions except as provided in Rule 7(E) and Rule 16(F) shall be made within thirty-five days after arraignment or seven days before trial, whichever is earlier. The court in the interest of justice may extend the time for making pretrial motions.The Defendant in this matter never asked for leave of court to file the instant motion. The Defendant has also failed to file his motion as required within the timeliness of the Rules of Criminal Procedure. This Court at an earlier hearing decided to allow evidence to be presented on the equal protection issue raised, but reserved ruling on any procedural issues. This Court finds that Defendant has failеd to seek leave, or to provide argument, on why the motion to dismiss was not filed in a timely manner. This Court finds that Defendant‘s motion is not well taken and is denied, due to this failure.
The court also found that “the relief requested of suppression of evidence and dismissal are unavailable a [sic] remedy as to the facts alleged in this matter.” In addition, the court found Crumpton had not shown that race played any part in the actions of the trooper on the day in question or in any other case, that the trooper stopped or searched the vehicle occupied by Crumpton with a discriminatory purpose, or that the Ohio State Highway Patrol adopted a policy or employed a practice with discriminatory purpose. Therefore, Crumpton‘s equal protection rights had not been violated.
B. Trial and Sentencing
{5} The matter proceeded to a jury trial. The State moved to dismiss Counts Six and Twelve (the amphetamine-related counts) and to amend Counts Three and Nine
{6} Trooper Nick Lewis of the Ohio State Highway Patrol testified that on August 2, 2021, arоund 8:41 p.m., a vehicle caught his attention because it appeared to be a rental vehicle (which are used in a lot of drug trafficking organizations), had no headlights on, and was following another vehicle too closely. He followed the vehicle and saw it cross the white dashed center lane line and the white line on the right side of the road. He initiated a traffic stop and learned that the vehicle was registered to EAN Holdings, i.e., Enterprise, the driver was Brianna Love, the passenger was Crumpton, they were Michigan residents, Love had a valid driver‘s license, and Crumpton had a suspended license.
{7} During the stop, Trooper Lewis smelled the odor of marihuana coming from the vehicle, had Love and Crumpton sit in his cruiser, and searched the vehicle. Trooper Lewis found a marihuana seed on the driver‘s seat and small pieces of marihuana under the driver‘s seat and on the floor by the front passenger seat where Crumpton had been sitting. Trooper Lewis also found a blue North Face bag and a plastic Family Dollar bag in the trunk which contained suspected contraband. Trooper Lewis arrested Crumpton and Love and had the vehicle towed. The State presented evidence that after Enterprise retrieved the vehicle from the towing company, Enterprise found additional suspected contraband in a black bag inside a makeup bag in the trunk. Trooper Lewis testified that he saw a makeup bag during the traffic stop, it “was filled with pencils and brushes,” and he “just kind of pulled them back and didn‘t see anything and threw it back in the trunk.”
{9} Love testified that she met Crumpton through a mutual friend about three weeks before the traffic stop, and they were potentially going to date. To her knowledge, he was unemployed and did not have a license at the time. The day before the traffic stop, Crumpton asked her to drive a vehicle for him the next day because she had a license. Love testified that the day of the traffic stop, she learned the purpose of the trip “was for us to traffic drugs, basically.” When asked about her involvement with the drugs, Love testified, “My involvement was that I was driving. The second involvement was I had put money into - -into some of the drugs, and I had some of my own personal stuff in my bag.”
{11} The State presented footage of Lovе and Crumpton conversing in the back seat of Trooper Lewis‘s cruiser. At one point, Love says, “Spend my fuckin’ $5,000 on that dope” and something about losing her money and “percs.” Crumpton gives an indecipherable response and around 15 seconds later tells Love, “No statement,” and, “That‘s not our car.” The State also presented evidence that after his arrest, Crumpton called his mom from jail and told her, “I won‘t be seeing you for a long time,” and “I can‘t say too much on the phone.” The next day, he made other calls in which he made statements like, “I‘m about to do 10 years in prisоn bro,” and “I just pray to God that I can beat this shit man. I think I can so. As long as I don‘t, as long as I don‘t say too much on this motherfucking phone.” He also called the third-party who rented the vehicle.
{13} The trial court found that for purрoses of sentencing, Counts One and Seven merged, Counts Two and Eight merged, Counts Three and Nine merged, Counts Four and Ten merged, and Counts Five and Eleven merged. The State elected to proceed to sentencing on Counts One, Two, Three, Four, and Five. The court did not merge Counts Thirteen or Fourteen with any other counts. The court imposed an aggregate sentence of 24 to 29.5 years, with 16 years being mandatory.
II. ASSIGNMENTS OF ERROR
{14} Crumpton presents three assignments of error:
Assignment of Error I: The trial court committed plain error when it accepted a non-unanimous written jury verdict on Count Two.
Assignment of Error II: The trial court erred in denying Mr. Crumpton‘s motion to dismiss.
Assignment of Error III: The state failed to introduce sufficient evidence to support Mr. Crumpton‘s conviction for the drugs recovered by the rental vehicle company.
III. NON-UNANIMOUS VERDICT
{15} In the first assignment of error, Crumpton contends the trial court committed plain error when it accepted a non-unanimous written jury verdict on Count Two. Crumpton asserts that
{16}
{17} “Ohio has long recognized that a nonunanimous verdict is unconstitutional and void.” State v. Martin, 2024-Ohio-2408, ¶ 16 (4th Dist.), quoting State v. Scott, 2021-Ohio-2676, ¶ 17 (8th Dist.), citing Work v. State, 2 Ohio St. 296 (1853), overruled on other grounds, State ex rel. Columbus v. Boyland, 58 Ohio St.2d 490 (1979), syllabus. In
{18} “The requirement imposed under
{19} In this case, the trial court committed plain error when it accepted a non-unanimous written jury verdict on Count Two. The verdict form on Count Two contains the signatures of only 11 of the 12 jurors, and the trial court did not ascertain whether the verdict on Count Two was unanimous before it discharged the jury. Accordingly, we sustain the first assignment of еrror, reverse Crumpton‘s conviction on Count Two, and remand for the trial court to resentence him on Count Eight, possession of heroin, with major drug offender specification, which the court previously merged into Count Two for sentencing purposes. See State v. Turner, 2021-Ohio-2216, ¶ 11 (2d Dist.), quoting State v. Baker, 2018-Ohio-1865, ¶ 22 (2d Dist.) (“Where offenses are merged for sentencing and the conviction for the offense upon which the defendant was sentenced is vacated,
IV. MOTION TO DISMISS
{20} In the second assignment of error, Crumpton contends the trial court erred in denying his motion to dismiss. Crumpton maintains that he presented evidence which established that Trooper Lewis engaged in selective enforcement by targeting black motorists for traffic stops and searches, in violation of Crumpton‘s equal protection rights, and that the remedy for selective enforcement is dismissal. Alternatively, he asks us to remand to the trial court “to develop a more expansive record on his claim of selective enforcement.” The State contends we should overrule this assignment of error “on procedural grounds alone” because the trial court properly denied the motion to dismiss as untimely under
{21} The trial court denied the motion to dismiss on both procedural grounds, i.e., it was untimely, and substantive grounds. In his appellate brief, Crumpton challenges only the substantive grounds for the denial of his motion. At oral argument, Crumpton did challenge the procedural grounds for the court‘s ruling. However, “‘[a] party may not advance new arguments for the first time at oral argument.‘” In re C.R., 2024-Ohio-2954, ¶ 24 (11th Dist.), quoting State v. Snider, 2022-Ohio-4566, ¶ 25 (11th Dist.). See also Hughes v. Hughes, 2020-Ohio-4653, ¶ 19 (10th Dist.) (a party may not “raise an аrgument for the first time at oral argument, particularly when the party had ample opportunity to explore such issues in its brief“). “When an appellant‘s initial brief fails to mention an argument as a basis for reversing the judgment under review, we need not address that
{22} “When a trial court grants judgment on multiple, alternative bases and an appellant does not challenge one of those bases on appeal, [an appellаte court] will uphold the judgment on the unchallenged basis.” Schutte v. Summit Cty. Sheriff‘s Office, 2018-Ohio-2565, ¶ 21 (9th Dist.). And because Crumpton did not properly challenge one of the alternative bases for the denial of his motion to dismiss, we uphold the denial on the unchallenged basis. However, we observe that even if we entertained Crumpton‘s oral argument regarding the procedural grounds for the denial of his motion, it would fail because he provided no legal authority to support it. See generally State v. Trammell, 2017-Ohio-8198, ¶ 29 (12th Dist.), citing
{23} For the foregoing reasons, we overrule the second assignment of error.
V. SUFFICIENCY OF THE EVIDENCE
{24} In the third assignment of error, Crumpton contends the State failed to introduce sufficient evidence to support his “conviction for the drugs recovered by the rental vehicle company.” Crumpton was convicted of offenses related to two types of drugs recovered by Enterprise—oxycodone and fentanyl. However, his argument focuses on his conviction on Count Five for aggravated trafficking in drugs, which pertains to the oxycodone. Notably, even without the fentanyl recovered by Enterprise, the amount of
{25} Crumpton maintains that the State failed to produce sufficient evidence to convict him as either a principal offender or an aider or abettor. Crumpton asserts that to sustain a conviction as a principal offender, the State had to prove that he “had control or possession of the drugs in question.” He acknowledges constructive possession exists when an individual knowingly exercises dominion and control over an object but asserts that the State failed to show that he exercised dominion and control over the pills and was consciously aware of them prior to the traffic stop. Crumpton claims it is undisputed that the pills containing oxycodone belonged to Love, that she put the pills in her makeup bag, and that she threw the bag in the trunk before the trip began. He also asserts that Love told him she had the “percs” in her bag while sitting in the back of the cruiser. Crumpton asserts that he was not the driver of the vehicle, and thеre is insufficient evidence to establish that he rented the vehicle. He also claims there is no evidence he knew about the oxycodone pills before Love talked about them in Trooper Lewis‘s cruiser. Crumpton maintains that his “lack of knowledge” is “bolstered” by the fact that “Trooper Lewis failed to uncover the pills in the makeup bag during his search.”
{26} Crumpton also contends the State failed to produce sufficient evidence to establish that he “knowingly supported, assisted, encouraged, cooperated with, advised, or incited Ms. Love to traffic the oxycоdone pills.” He claims the State “did not introduce any physical evidence, such as cell phone records or text messages, nor did it present any statements or testimony to show [he] had knowingly aided and abetted Ms. Love.”
{27} In reviewing the sufficiency of the evidence for a conviction, “[t]he 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.” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus, superseded by constitutional amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102, fn. 4 (1997), and following Jackson v. Virginia, 443 U.S. 307 (1979). “A sufficiency assignment of error challenges the legal adequacy of the state‘s prima facie case, not its rational persuasiveness.” State v. Anderson, 2019-Ohio-395, ¶ 13 (4th Dist.). “That limited review does not intrude on the jury‘s role ‘to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.‘” Musacchio v. United States, 577 U.S. 237, 243 (2016), quoting Jackson at 319. A reviewing court will not overturn a conviction based on insufficient evidence “unless reasonable minds could not reach the conclusion that the trier of fact did.” State v. Cook, 2019-Ohio-4745, ¶ 15 (4th Dist.), quoting State v. Bradshaw, 2018-Ohio-1105, ¶ 15 (4th Dist.).
{28}
A person acts knowingly, regardless of purpose, when the person is aware that the person‘s conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when the person is aware that such circumstances probably exist. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person subjectively believes that there is a high probability of its existence and fails to make inquiry or acts with a conscious purpose to avoid learning the fact.
{29}
{30}
{31} “We further observe that the complicity statute does not require the state to charge the defendant with сomplicity.” Smith at ¶ 54. “Instead,
{32} “To sustain an
{33} Possession “may be individual or joint, actual or constructive.” State v. Whitehead, 2022-Ohio-479, ¶ 89 (4th Dist.), quoting State v. Wolery, 46 Ohio St.2d 316, 332 (1976). “Actual possession exists when the circumstances indicate that an individual
{34} In this case, the prosecution presented sufficient evidence thаt, if believed, established that Crumpton knowingly transported, and exercised dominion and control over, the oxycodone, or that he knowingly aided or abetted the principal offender in committing the offense. Love testified that she and Crumpton traveled from Michigan to Ohio for the purpose of trafficking drugs and that Crumpton provided the vehicle for the trip. There is evidence Crumpton knew the third-party who rented the car and that Crumpton exercised dominion and control over the car—he drove the car to Love‘s house, asked her to drive the car to Ohio for the purpose of trafficking drugs, accessed the trunk during the trip, and instructed Love on where to take the car after she dropped him off. Crumpton‘s dominion and control over the car permitted an inference that he also had dominion and control over the oxycodone discovered inside it. See Smith at ¶ 64-65.
{36} Because the State introduced sufficient evidence to support the conviction on Count Five, we overrule the third assignment of error.
VI. CONCLUSION
{37} For the foregoing reasons, we sustain the first assignment of error and overrule the second and third assignments of error. We reverse Crumpton‘s conviction
JUDGMENT AFFIRMED IN PART AND REVERSED IN PART. CAUSE REMANDED.
It is ordered that the JUDGMENT IS AFFIRMED IN PART AND REVERSED IN PART and that the CAUSE IS REMANDED. Appellant and appellee shall split the сosts.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the SCIOTO COUNTY COURT OF COMMON PLEAS to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Smith, P.J. & Wilkin, J.: Concur in Judgment and Opinion.
For the Court
BY: __________________________
Michael D. Hess, 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.