STATE OF OHIO, Plаintiff-Appellee, vs. JACQUES GOERGES K. DABONI, Defendant-Appellant.
Case Nos. 18CA3, 18CA4, 18CA5
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT MEIGS COUNTY
Released: 10/05/18
2018-Ohio-4155
McFarland, J.
DECISION AND JUDGMENT ENTRY
Timothy Young, Ohio State Public Defender, and Katherine R. Ross-Kinzie, Assistant Ohio State Public Defender, Columbus, Ohio, for Appellant.
Jacques Goerges K. Daboni, Toledo, Ohio, Appellant, Pro Se.
James K. Stanley, Meigs County Prosecuting Attorney, Pomeroy, Ohio, for Appellee.
McFarland, J.
{¶1} Jacques Goerges K. Daboni appeals from the trial court‘s decision sentencing him to maximum and consecutive prison terms totaling thirty-two years after a jury found him guilty of six counts of trafficking in heroin in violation of
{¶3} Further, as we found no abuse of discretion on the part of the trial court in denying Appellant‘s multiple motions for mistrial, and found no cumulative error, Appellant‘s third assignment of error is overruled. Finally, in light of our determination that Appellant‘s combined sentences, which constituted the maximum possible sentence of thirty-two years in prison,
FACTS
{¶4} The record reveals that Appellant, Jacques Goerges K. Daboni, was indicted on September 23, 2014, in case no. 14CR173 in the Meigs County Court of Common Pleas on multiple felonies, which included three counts of trafficking in heroin, one count of possession of heroin, and one count of engaging in a pattern of corrupt activity. Another indictment was filed in the Meigs County Court of Common Pleas on December 18, 2014, case no. 14CR232, charging Appellant with the commission of five additional felonies, which included five more counts of trafficking in heroin. Thereafter, an additional indictment was filed on March 17, 2015, case no.
{¶5} The charges stemmed from the execution of an arrest warrant upon Jeremy Burgess at 303 5th Street, Racine, Ohio, on September 4, 2014, at a residence believed to be owned by Chad Diddle and leased to Appellant. Upon entering the residence to arrest Burgess, law enforcement observed multiple baggies of what appeared to be heroin laying in plain view on a table inside the residence in the room where Burgess was located. A search warrant was subsequently issued and a search of the entire residence was conducted, which yielded additional drugs. According to the “More Particular Bill of Particulars” filed in case no. 14CR173, two controlled buys of heroin took place between confidential informants and Chad Diddle, who was working for Appellant. The bill further described the search of the residence owned by Diddle, but rented by Appellant, which occurred on September 4, 2014, and which resulted in the discovery of 45.84 grams of heroin, part of which had been individually packaged for sale and part of which was in ball form. One of the trafficking in heroin charges as well as the possession of heroin charges stemmed from the results of this search. The bill further described the basis for the engaging in a pattern of corrupt activity charge as follows:
“The purpose of the illicit enterprise is to make money for Jacques Daboni, a.k.a. ‘Jock.’ Daboni set up a drug ring in Meigs County, Ohio to distribute heroin. Daboni recruited local heroin users and other individuals to become his ‘runners’ and sell heroin on his behalf. Members of the enterprise include, but are not limited to, Jacques Daboni, Chad Diddle, Amber Duffy, Jeremy Burgess, and Theodore Brown.
Dаboni would purchase heroin in bulk from areas like Columbus, Ohio and transport to it [sic] Meigs County, Ohio. Once in Meigs County, the heroin would then be divided up into smaller quantities for re-selling.
Daboni recruited Chad Diddle to sell heroin for Daboni. Diddle, in return, would get heroin as payment for selling on behalf of Daboni. Chad Diddle owns a house located at 303 5th Street, Racine, Ohio 45771. Daboni rented that residence as a primary spot to distribute heroin to his runners to be resold throughout Meigs County, Ohio. Daboni would also have Diddle pay some of the utility bills on his behalf. Daboni purchased cattle with his drug money and kept them on
Diddle‘s land. On or about 7.28.14 Diddle sold .22g of heroin for Daboni. On or about 8.16.14 Diddle sold 1.99g of heroin for Daboni. Daboni had an electronic key code lock put on the door of the residence so his runners could access the heroin and continue to sell it on his behalf.
On 9/04/14, law enforcement searched Daboni‘s residence at 303 5th st. [sic] Racine, Ohio, 45771 and found 36 individually wrapped baggies of heroin totaling 11.04 grams inside a black case downstairs, along with 17 individually wrapped baggies of heroin totaling 9.86 grams on the table. Also in the room with the heroin were two scales and scissors used for packaging. An additional 24.94 grams of heroin was found in the upstairs-bedroom-closet in a secret compartment crafted into the side of the closet.
Daboni recruited Amber Duffy to sell heroin for Daboni. Duffy, in return, would get heroin as payment for selling on behalf of Daboni. Those transactions include, but are limited to: on or about 5/01/14 Duffy sold 1g of heroin for Daboni, on
or about 5/23/14 Duffy sold .93g of heroin on behalf of Daboni; and or about 4/08/14 Duffy sold .46g of heroin for Daboni. Also, Daboni would have Duffy pay some of the utility bills on his behalf. Daboni recruited Jeremy Burgess to sell heroin for Daboni. Burgess, in return, would get heroin as payment for selling on behalf of Daboni.
Daboni recruited Theodore Brown, a.k.a. ‘Teddy’ to sell heroin for Daboni. Brown, in return, would get heroin as payment for selling on behalf of Daboni. The incidents forming the pattern of corrupt activity are the other charges in this indictment: counts one through four. They include, but are not limited to, two or more incidents of corrupt activities, whether or not there has been a prior conviction, that are related to the affairs of the same enterprise, are not isolated and are not so closely related to each other and connected in time and place that they constituted a single event by engaging in, attempting to engage in, soliciting, coercing, or intimidating another to engage in any of the previous counts.”
{¶7} Finally, the “More Particular Bill of Particulars” filed in case no. 15CR023, which contained only one count of engaging in a pattern of corrupt activity, referenced the controlled buys involving Amber Duffy and Theodore Brown, which formed the basis of the trafficking counts in case no. 14CR232. The bill further contained the same detailed version of events set forth above, with respect to the alleged pattern of corrupt activity.
{¶8} Appellant pleaded not guilty to the charges and the matter proceeded through discovery. A motion in limine was filed prior to trial requesting, in pertinent part, that the State be prohibited from mentioning Appellant‘s ownership of cattle. In the motion, Appellant conceded there was no causal connection between ownership of cattle and the drug allegations contained in the indictment, but argued that the mention of such
{¶9} Further, Appellant, through counsel, requested suppression of statements made during calls from jail and also suppression of the results of the search warrant executed upon the 303 5th Street, Racine, Ohio address. A suppression hearing was held on both motions on July 22, 2015. It appears from the transcript of the hearing that counsel and the court agreed that the issue related to the suppression of the statements could be submitted through written legal arguments in the form of briefs. However, a hearing was held on the issue regarding the search of the residence alleged to be the home of Appellant in Racine, Ohio. The State presented two witnesses during the hearing, Agent William Gilkey, Director of the Major Crimes Task Force in Gallia and Meigs counties, and Agent William Stewart, also employed with the Gallia/Meigs Major Crimes Task Force as well as Ohio‘s Organized Crime Investigation Commission. The hearing transcript indicates it was the understanding of the parties from the beginning of the hearing that the State would go forward with its witnesses and then
{¶10} The hearing proceeded with testimony by both Gilkey and Stewart and Appellant‘s counsel cross-examined both witnesses before the hearing was concluded. Written post-hearing briefs were then submitted by counsel for both parties. Nothing else happened regarding suppression until the final pre-trial hearing was held on October 8, 2015. During the hearing, the trial court orally overruled both motions to suppress. There was no indication at the hearing that Appellant‘s counsel desired an opportunity to present further argument or evidence on the issues. Thereafter, Appellant fired his counsel and retained new counsel, who entered an appearance on October 16, 2015. New counsel filed two pleadings, nearly three months after the suppression heаring was held, entitled “Request for Hearing on Suppression Motion,” the first one on November 13, 2015, and the second one on November 16, 2015. The contents of both pleadings were the same, noted that the suppression motion had not been ruled upon yet, that prior counsel had been given an opportunity to “reconvene this hearing if needed[,]” and asked the court for continuation of the suppression hearing. The trial court, however, issued a journal entry on November 25, 2015,
{¶11} After denial of the suppression motions, the matter proceeded to a jury trial. As will be discussed more fully below, an issue occurred just prior to the beginning of trial in which Appellant was seen in jail clothes by a few members of the jury. This prompted Appellant to file a motion for mistrial, which was denied by the trial court. Pertinent witness testimony from the trial will be discussed below in our analysis portion of the opinion, however, the record reflects that Appellant was ultimately convicted on all counts after a jury trial, with the exception of count number four in case number 14CR232. Appellant appealed, but this Court determined that count four in case number 14CR232 appeared to remain pending, and as a result there was no final order vesting this Court with jurisdiction to consider the appeal. Accordingly, the appeal was dismissed. Thereafter, the trial court formally dismissed the pending count and Appellant again appealed. Thus, the matter is now properly before us for decision, and includes four
ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT ERRED IN VIOLATION OF MR. DABONI‘S RIGHT UNDER THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION, ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION, AND
R.C. 2941.25 , WHEN IT FAILED TO MERGE FOR SENTENCING OFFENSES THAT HAD A SIMILAR IMPORT, AROSE FROM THE SAME CONDUCT, AND WERE NOT COMMITTED SEPARATELY OR WITH A SEPARATE ANIMUS.II. JACQUES DABONI‘S VERDICTS OF COUNT 5, CASE NO. 14CR173, ENGAGING IN A PATTERN OF CORRUPT ACTIVITY, AND COUNT I, CASE NO. 15CR023, ENGAGING IN A PATTERN OF CORRUPT ACTIVITY WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE. THE STATE PRESENTED INSUFFICIENT EVIDENCE TO SUPPORT ALL OF THE ESSENTIAL ELEMENTS OF THE CHARGES OF ENGAGING IN A PATTERN OF CORRUPT ACTIVITY IN VIOLATION OF
R.C. 2923.32(A)(1) BEYOND A REASONABLE DOUBT, AND MR DABONI‘S CONVICTION FOR ENGAGING IN A PATTERN OF CORRUPT ACTIVITY THEREFORE VIOLATES HIS RIGHTS TO DUE PROCESS.III. MR. DABONI‘S RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW WAS VIOLATED.
IV. MR. DABONI‘S MAXIMUM POSSIBLE SENTENCE ON ALL COUNTS IS NOT CLEARLY AND CONVINCINGLY SUPPORTED BY THE RECORD.”
“V. WHERE MY TRAIL COUNSEL‘S INNEFECTIVE WHEN THEY DID NOT FINISH MY SUPPRESSION HEARING AND WHEN THEY WAIVED MY HEARING [SIC]?
VI. WAS MY FOURTH AMENDMENT RIGHTS VIOLATED, WHEN OFFICERS HAD NO PROBABLE CAUSE FOR MY ARREST, AND WHEN OFFICERS SEARCHED 303 5TH ST RACINE, OH 45771 WITHOUT A SEARCH WARRANT OR CONSENT TO SEARCH [SIC]?
VII. DID JUDGE CARSON CROW ABUSE HIS DISCRETION, WHEN HE DIDN‘T MAKE SURE THAT I HAD A FULL SUPPRESSION HEARING AS GUARANTEED BY THE 14TH AMENDMENT, AND DID HE ERROR WHEN HE DIDN‘T MAKE SURE THAT MY CONSTITUTIONAL RIGHTS WHERE PROTECTED [SIC]?
VIII. AM I ACTUALLY INNOCENT?”
{¶12} We address Appellant‘s pro se assignments of error first, and out of order, for ease of analysis.
PRO SE ASSIGNMENT OF ERROR VI
{¶13} In his sixth pro se assignment of error, Appellant questions whеther his Fourth Amendment rights were violated and asserts that officers had no probable cause for his arrest, and no probable cause when they searched 303 5th Street, Racine, Ohio, 45771, without a search warrant or consent to search. More specifically, Appellant argues that there was no firsthand knowledge of his dealing drugs, that none of his co-defendants or any confidential informants testified at the probable cause hearing, and that
{¶14} Appellate review of a motion to suppress generally presents a mixed question of law and fact. State v. Gurley, 4th Dist., 2015-Ohio-5361, 54 N.E.3d 768, ¶ 16; citing State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, ¶ 100. At a suppression hearing, the trial court acts as the trier of fact and is in the best position to resolve factual questions and evaluate witness credibility. Id.; State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. Thus, when reviewing a ruling on a motion to suppress, we defer to the trial court‘s findings of fact if they are supported by competent, credible evidence. Gurley at ¶ 16; citing State v. Landrum, 137 Ohio App.3d 718, 722, 739 N.E.2d 1159 (4th Dist.2000). However, “[a]ccepting those facts as true, we must independently determine whether the trial court reached the correct legal conclusion in analyzing the facts of the case.” Id.; citing Roberts at ¶ 100.
{¶16} “It is well settled that issues not raised in an original motion to suppress cannot be raised for the first time on appeal.” State v. Jones, 4th Dist. Highland No. 04CA9, 2005-Ohio-768, ¶ 18; see also State v. Markins, 4th Dist. Scioto No. 10CA3387, 2013-Ohio-602, ¶ 25. As we stated in Jones, this is no mere technicality. Id. Crim.R. 47 requires a motion to
{¶17} We do, however, review the portion of this assignment of error which challenges the initial entry by law enforcement into the residence located at 303 5th Street, Racine, Ohio, which Appellant concedes was tied to him, and subsequent search thereof. As set forth above, assuming the residence was sufficiently linked with Appellant in terms of establishing it as his residence, Appellant argues he had an expectation of privacy there that was violated when law enforcement entered without a search warrant, absent consent or exigent circumstances, to execute an arrest warrant for Jeremy Burgess. Although this basis was mentioned in the motion to suppress the
{¶18} The Fourth Amendment to the
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The Fourth Amendment protects against unreasonable government intrusions into areas where legitimate expectations of privacy exist. United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476 (1977). The Fourth
{¶19} When one‘s home is to be searched, the warrant requirement embodied in the Fourth Amendment constitutes the most compelling protection against unreasonable governmental intrusions. Welsh v. Wisconsin (1984), 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732. Warrants are generally required to search a person‘s home or his person unless “the exigencies of the situation” make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment. McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191 (1948); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034 (1969) (search of arrested suspect and area within control for weapons); Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642 (1967) (hot pursuit of fleeing suspect); Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826 (1966) (imminent destruction of evidence). Thus, for a warrantless search to be valid, it must fall within one of the narrow and specifically delineated exceptions to the warrant requirement. Thompson v. Louisiana, 469 U.S. 17, 105 S.Ct. 409 (1985).
{¶20} As set forth above, Appellant contends that his Fourth Amendment rights were violated when law enforcement entered the residence at issue to execute an arrest warrant upon Jeremy Burgess. The basis of this argument appears to be, though not in so many words, that Appellant had an expectation of privacy in the residence, and that law enforcement could not enter absent consent or exigent circumstances, to execute an arrest warrant upon Burgess, a nonresident. The State simply responds by stating that law enforcement were “lawfully in the residence to execute an arrest warrant on Jeremy Burgess.” Implicit in this argument is that the State contends Burgess was a resident, and that they had consent to enter or entered pursuant to exigent circumstances.
{¶22} Having determined there was not enough evidence to conclude Burgess was a resident of the residence in question, we must consider whether law enforcement could properly enter the residence to execute an arrest warrant without first obtaining a search warrant. As set forth above, the two exceptions to the warrant requirement are consent and exigent circumstances. There is no dispute that no consent was given to enter the residence. The State does, however, mention in its memorandum contra the motion to suppress that law enforcement was in hot pursuit of Burgess as they entered the residence. The State bears the burden of establishing exigency from the totality of the circumstances involved. State v. Letsche, 4th Dist. Ross No. 02CA2693, 2003-Ohio-6942, ¶ 20; citing Welsh v. Wisconsin, 466 U.S. 740, 750, 104 S.Ct. 2091 (1984); State v. Sladeck, 132 Ohio App.3d 86, 724 N.E.2d 488 (1st Dist.1998); State v. Brooks, 10th Dist. Franklin No. 94APA03-386, 1995 WL 390935 (June 27, 1995). One of the exigent circumstances justifying a warrantless entry into a home is when
{¶23} In State v. Howard, 75 Ohio App.3d 760, 774-775, 600 N.E.2d 809 (1991), this Court rejected an argument that the exigent circumstances, or the hot pursuit exception to the warrant requirement, applied to an entry by law enforcement into a residence of a third party to execute an arrest warrant upon a nonresident. In Howard, the suspect named in the arrest warrant was not in a public place when first observed by the officer, but rather was observed inside the residence as the officer peered through a window of the residence. Id. at 775. In rejecting the State‘s hot pursuit argument, we distinguished the case factually from cases like Warden v. Hayden, supra, where the United States Supreme Court recognized the right of police to make a warrantless entry in order to arrest a robber where the police had probable cause to believe the robber had entered the house just five minutes before they arrived on the scene, and United States v. Santana, where faced with a fact pattern involving a suspect initially standing in the doorway of her home and then retreating to the interior of her home, the Court found thаt the suspect was located in a public place while standing in her doorway, and that she could not thwart her arrest by retreating from a public place to a private place. Howard at 774-775. The Santana court
{¶24} Here, law enforcement officers went to the residence located at 303 5th Street, Racine, Ohio, to execute arrest warrants upon Appellant, who they believed was renting the residence from Chad Diddle, and upon Jeremy Burgess, who they believed was also staying there. The record reflects that upon arriving at the residence, law enforcement set up a perimeter and began surveillance. While conducting surveillance, a vehicle fitting the description of the vehicle driven by Burgess arrived and entered the residence. Because law enforcement only saw him from behind and could not positively identify him, they waited outside with a plan to arrest him when he exited the house. However, when Burgess exited the house, he quickly ran to his car and then turned around and ran back into the house. Because law enforcement officers were able to see his face at that time and positively identify him, they pursued him into the residence and arrested him.2 Thus, Burgess initially arrived at the residence from a public place and entered, and then exited back into a public place (his vehicle) and once again re-entered the residence. Applying the reasoning above to these facts, it appears the hot pursuit, or exigent circumstances, exception to the warrant requirement
{¶25} We further note that because law enforcement officers were present at the residence to also execute an arrest warrant upon Appellant, who they reasonably believed was a resident, their entry was further justified. As this Court previously acknowledged in Howard, “* * * an arrest warrant alone will suffice to enter a suspect‘s own residence to effect his arrest.” Howard at 776; quoting Steagald, supra; citing Payton v. New York, supra. A review of the record indicates law enforcement went to the residence in question to arrest both Appellant and Burgess. Although Appellant was not actually in the residence at the time, there is no indication law enforcement knew he was not there, but only that while conducting surveillance, Burgess happened to show up as well. Further, the record indicates while pursuing Burgess into the residence, the officers knocked on the door, which caused the door to partially open, and then announced their presence upon entering, despite the fact they were operating under the hot pursuit provision of the exigent circumstances exception to the warrant requirement.
{¶27} In light of our conclusion that law enforcement lawfully entered the residence in execution of the arrest warrant on Jeremy Burgess, the evidence they observed in plain view, consisting of multiple baggies of a substance appearing to be heroin, was properly used as probable cause for the subsequent issuance of the search warrant that was granted for a full search of the residence. Thus, and in light of the foregoing, we conclude that the trial court‘s decision denying Appellant‘s motion to suppress the results of the search was supported by competent, credible evidence. Accordingly, Appellant‘s sixth pro se assignment of error is without merit.
PRO SE ASSIGNMENTS OF ERROR V AND VII
{¶28} We address Appellant‘s fifth and seventh pro se assignments of error in conjunction with one another for ease of analysis. In his fifth pro se assignment of error, Appellant questions whether his trial counsel was ineffective due to either not finishing, or waiving, his suppression hearing. In his seventh pro se assignment of error, Appellant questions whether the trial court abused its discretion when it didn‘t insure he had a full suppression hearing and that his constitutional rights were protected.
{¶30} When considering whether trial counsel‘s representation amounts to deficient performanсe, “a court must indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance.” Strickland at 689. Thus, “the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. “A properly licensed attorney is presumed to execute his duties in an ethical and competent manner.” State v. Taylor, 4th Dist. Washington No. 07CA11, 2008-Ohio-482, ¶ 10; citing State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985). Therefore, a defendant bears the burden to show ineffectiveness by demonstrating that counsel‘s errors were so serious that he or she failed to function as the counsel guaranteed by the
{¶31} To establish prejudice, a defendant must demonstrate that a reasonable probability exists that but for counsel‘s errors, the result of the trial would have been different. State v. White, 82 Ohio St.3d 16, 23, 693 N.E.2d 772 (1998); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph three of the syllabus. Furthermore, courts may not simply assume the existence of prejudice, but must require that prejudice be affirmatively demonstrated. See State v. Clark, 4th Dist. Pike No. 02CA684, 2003-Ohio-1707, ¶ 22; State v. Tucker, 4th Dist. Ross No. 01CA2592, 2002-Ohio-1597; State v. Kuntz, 4th Dist. Ross No. 1691, 1992 WL 42774.
{¶32} With respect to Appellant‘s argument related to the trial court, we note that an “abuse of discretion” means that the court acted in an “‘unreasonable, arbitrary, or unconscionable‘” manner or employed “‘a view or action that no conscientious judge could honestly have taken.‘” State v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 67; quoting State v. Brady, 119 Ohio St.3d 375, 2008-Ohio-4493, 894 N.E.2d 671, ¶ 23. A trial court generally abuses its discretion when it fails to engage in a “‘sound reasoning process.‘” State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 14; quoting AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). Additionally, “[a]buse-of-discretion review is deferential and does not permit an appellate court to simply substitute its judgment for that of the trial court.” State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34. We are mindful, however, that no court has the authority, within its discretion, to commit an error of law. State v. Boone, 2017-Ohio-843, 85 N.E.3d 1227 (10th Dist.), ¶ 9; citing State v. Moncrief, 10th Dist. Franklin No. 13AP-391, 2013-Ohio-4571, ¶ 7. See also 2-J Supply Co. Inc. V. Garrett & Parker, LLC, 4th Dist. Highland No. 13CA29, 2015-Ohio-2757, ¶ 9.
{¶33} As set forth above, Appellant had three different attorneys during the proceedings below. His first attorney filed two suppression motions, one dealing with statements made by Appellant while utilizing the recorded telephone lines in the jail, and the other dealing with the search of a residence located at 303 5th Street, Racine, Ohio, alleged by the State to be Appellant‘s residence. A combined suppression hearing was held on both issues, with Appellant‘s second attorney in attendance. The transcript from the hearing indicates counsel for both parties and the court all agreed that the legal issues surrounding the admission of Appellant‘s recorded statements on the jail telephone system could be argued in the form of written briefs submitted to the court for decision. Written briefs were thereafter submitted.
{¶34} However, a hearing was actually held on the issue of the suppression of the search. As indicated above, the State put on two witnesses, both agents with the Gallia/Meigs Major Crimes task force that were involved in the service of the arrest warrant on Burgess and the subsequent search of the residence at issue located in Racine, Ohio. Defense
{¶35} Based on these facts, we find no error or abuse of discretion on the part of the trial court in refusing to permit further hearing on the suppression issues. Further, in light of our determination under Appellant‘s second pro se assignment of error above, which found the trial court properly denied Appellant‘s motion to suppress the search of the residence, we cannot conclude that Appellant received ineffective assistance of trial counsel for failing to resume the suppressiоn hearing. The failure to resume, or permit resumption, of the hearing, in our view, did not affect the outcome
PRO SE ASSIGNMENT OF ERROR VIII
{¶36} In his eighth pro se assignment of error, Appellant questions whether he is actually innocent. The issue he presents for review is: “Am I actually innocent?” In this assignment of error, Appellant reasserts the argument that he did not receive a full and fair suppression hearing and he questions the credibility of the evidence and testimony introduced at trial, suggesting that the State‘s witnesses were admitted drug users and drug dealers who were trying to obtain a plea deal. The State contends Appellant is essentially arguing that his convictions are not supported by sufficient evidence. Based upon the wording of Appellant‘s arguments, we agree.
{¶37} However, as noted by the State, Appellant‘s appellate counsel raised a sufficiency of the evidence argument under the second assignment of error herein, alleging the State failed to present sufficient evidence to support Appellant‘s convictions for engaging in a pattern of corrupt activity. As will be more fully discussed below, this Court has determined that those convictions were supported by sufficient evidence. Further, the other trafficking in drugs and possession of drugs offenses of which Appellant was also convicted served as the underlying offenses for the engaging in a
ASSIGNMENT OF ERROR I
{¶38} We next address the assignments of error raised by appellate counsel. In his first assignment of error raised by appellate counsel, Appellant contends that the trial court erred in failing to merge, for purposes of sentencing, counts which he claims constituted allied offenses of similar import. Appellant specifically contends that the trial court erred in failing to merge the offenses of trafficking and possession of heroin that occurred on September 4, 2014, alleging the offenses were not committed with a separate animus. The State argues the trial court did not err in refusing to merge those counts for purposes of sentencing, arguing the offenses did not arise from the same conduct, and because they were committed separately or with a separate animus.
Standard of Review
{¶39} The Double Jeopardy Clause of the
{¶40} ”
“(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant‘s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.”
{¶41} As noted in Pickett, the Supreme Court of Ohio, in State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, instructed that courts conduct a three-part inquiry to determine whether offenses are allied offenses of similar import within the meaning of
“(1) Were the offenses dissimilar in import or significance? (2) Were they committed separately? and (3) Were they committed with separate animus or motivation? Pickett, supra, at ¶ 55. An affirmative answer to any of the above will permit separate convictions. Id. The conduct, the animus, and the import must all be considered.” Id.; quoting State v. Earley, 145 Ohio St.3d 281, 2015-Ohio-4615, 49 N.E.3d 266, ¶ 12; citing State v. Ruff at ¶ 31 and paragraphs one, two, and three of the syllabus.
{¶42} Offenses are of dissimilar import “if they are not alike in their significance and their resulting harm.” Pickett, at ¶ 56; quoting Ruff at ¶ 21.
Legal Analysis
{¶43} Here, as a result of the search of his residence on September 4, 2014, Appellant was indicted and found guilty of two counts of trafficking in heroin and one count of possession of heroin. Appellant was also found guilty of several other counts of trafficking in heroin; however, the ones at issue under this assignment of error only relate to the charges arising from the September 4, 2014 search. More specifically, in case no. 14CR173, Appellant was found guilty of second-degree trafficking in heroin in violation of
{¶44}
“(A) No person shall knowingly do any of the following:
(1) Sell or offer to sell a controlled substance or a controlled substance analog;
(2) Prepare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance or a controlled substance analog, when the offender knows or has reasonable cause to believe that the controlled substance or a controlled substance analog is intended for sale or resale by the offender or another person.”
“(A) No person shall knowingly obtain, possess, or use a controlled substance or a controlled substance analog.”
{¶45} Appellant argues on appeal that the possession count should have merged with the merged trafficking counts, arguing that there was no evidence presented at trial indicating Appellant possessed the heroin to use, or that he was a drug user. Appellant further argues that the State specifically argued during sentencing that the evidence was clear that Appellant was not a drug user. The State argues the possession count does not merge with the trafficking counts because the offenses did not arise from the same conduct, and because they were committed separately and with a separate animus.
{¶46} The record reveals that trafficking count one stemmed from heroin that was found downstairs that was individually packaged, which was sold or offered to be sold. Trafficking count two stemmed from heroin that was found downstairs in another location that was individually packaged and prepared for shipment, transport, delivery, or distribution. Both of these trafficking counts stemmed from law enforcement finding, collectively, fifty-three baggies of individually wrapped heroin in two different locations
{¶47} Appellant argues that under the Ruff analysis, all of these offenses should have merged because, under the first prong of Ruff, they were not dissimilar in import or significance, as they did not involve separate victims and no separate or identifiable harm rеsulted. Appellant
“The testimony was pretty clear that uh the Defendant was not a drug user. He was here purely to traffic in drugs.”
{48} The State argues, under the first step of the Ruff analysis, which requires consideration of whether the offenses were committed with similar import or significance, that the victim for each of the offenses is the same, and the victim is society. However, the State contends that the resulting harm from the offenses is separate and identifiable. The State argues the harm resulting from the trafficking counts is to other individuals who would then possess and traffic the heroin themselves or use it. The State argues that the harm resulting from the possession was different in that no other individuals were harmed by Appellant merely possessing the heroin. The State makes no argument that Appellant was harmed by the
{49} The State argues under the second step of the Ruff analysis that the offenses were committed separately, and argues the fact that the drugs at issue were recovered on the same day, in the same house and were the same substance, does not equate to the offenses not being committed separately. The State argues that Appellant took active steps to engage in trafficking of the heroin found downstairs, which was individually packaged for sale. It further argues there was no evidence Appellant took any steps to engage in trafficking of the heroin found in ball form upstairs.
{50} The State argues, under the third step of the Ruff analysis, that the trafficking and possession counts here were committed with a separate animus and motivation. The State argues that Appellant took active steps to prepare the specific heroin that was the subject of the trafficking counts for sale or shipment, but that he did not possess the heroin that is the subject of the possession offense with the same animus or motivation. The State argues that “[w]hile Appellant likely would have trafficked the heroin that
{51} The State relies upon State v. Rodriguez, 2016-Ohio-452, 59 N.E.3d 619 in support of its arguments. Rodriguez was sentenced separately for trafficking, stemming from the seizure of marijuana from his associate‘s backpack shortly after leaving Rodriguez‘s residence, and possession of marijuana, stemming from the subsequent discovery of marijuana found in Rodriguez‘s apartment shortly thereafter. Id. at 34. The Rodriguez court refused to merge the trafficking and possession counts for purposes of sentencing, arguing that there was no evidence in the record Rodriguez possessed and trafficked the marijuana with a single animus, for the purpose of trafficking. Id. at 28. The court went on to note that possession of drugs and trafficking of drugs are not always allied offenses of similar import when they are committed separately or where a different animus or motivation is present. Id. at ¶ 30. The State also relies on State v. Montoya, 12th Dist. Clermont No. CA2012-02-015, 2013-Ohio-3312, which found that
{52} Appellant argues the State‘s reliance on Rodriguez is misplaced, arguing that the present case is factually distinguishable from Rodriguez as the record here clearly indicates that Appellant always possessed the heroin at issue for purposes of trafficking. Aрpellant cites this Court‘s prior reasoning in State v. Shaw, 4th Dist. Scioto No. 07CA3190, 2008-Ohio-5910, which focused on whether the record showed the defendant‘s sole purpose in possessing drugs was to sell them. In Shaw, we held that trafficking and possession of crack cocaine were allied offenses of similar import where there was no evidence that the defendant intended to retain a portion of the crack cocaine for personal use, and where the defendant‘s confession and the prosecutor‘s statement indicated the defendant possessed the drugs with the purpose of selling them. Id. at ¶ 14. The State criticizes Appellant‘s reliance on Shaw, arguing the law regarding the analysis of allied offenses of similar import has changed since Shaw was decided in 2008, and noting Shaw employed the two-step allied offenses
{53} As set forth in Rodriguez, supra, although it is possible to possess a drug with the same animus and conduct necessary to traffic it, once the drug is initially possessed, a separate animus “distinct in time, supported by different conduct” can take place resulting in the additional offense being committed separately. Id. at ¶ 29. Thus, possession and trafficking offenses may be allied offenses of similar import, or not, depending on the particular facts and motivations of those involved. After contemplating the questions set forth in Ruff, we disagree with the trial court‘s conclusion that the possession offense should not merge with the trafficking offenses. First, with respect to the first prong of the Ruff analysis, we conclude the offenses were of similar import and significance. The offenses of possession and trafficking in drugs, in this case heroin, are similar in significance and import where, as is the case here, the victims of the offense were the same and the harm was not separate and identifiable. As conceded by both parties, the victims of these offenses is society in general. We are not persuaded by the State‘s argument that the possession offense, under these facts (which include no indication Appellant was a drug user himself), had a different victim than the trafficking offenses or resulted
{54} Second, with respect to the second prong of the Ruff analysis, we cannot conclude that the offenses were committed separately. As argued by Appellant, the trafficking and possession offenses at issue stemmed from heroin found during a search of Appellant‘s residence. All charges involve drugs found on the same date, in the same residence, and involving the same substance: heroin. While we agree with the State that these factors do not automatically equate to the offenses not being committed separately, we believe under the facts presently before us, they do. This case is factually distinguishable from Rodriguez in that Rodriguez‘s trafficking charge was based upon drugs found in a backpack of his associate that were found outside in a car, while the possession charge was based upon drugs found inside his mother‘s apartment. Id. at ¶ 28. Here, all of the heroin was found inside Appellant‘s residence, albeit in different locations. We believe this situation is much more similar to the facts in State v. Shaw, supra, where Shaw was charged with possession and trafficking of drugs after a traffic stop led to the discovery of drugs on his person, and also in a C.D. case in the vehicle he was driving. Shaw at *1. This court determined on appeal that Shaw‘s sentences for trafficking and possession should have merged where
{55} We further reject the State‘s argument that the offenses should not merge because Appellant took active steps to traffic the heroin found downstairs, but did not take active steps to traffic the heroin found upstairs. Not only is there no evidence in the record indicating Appellant took active steps to traffic the heroin that was the subject of the possession offense, there is likewise no evidence in the record suggesting Appellant was a drug user or committed the possession offense separately to use the heroin himself. In light of Shaw, we believe this lack of evidence favors finding the offenses were not committed separately, especially when considering the analysis under the next step of the Ruff test.
{56} Finally, with respect to the third prong of the Ruff analysis, we cannot concludе these offenses were committed with a separate animus or motivation. While the State argued in its brief that Appellant possessed the heroin at issue merely to possess it, it also conceded in its brief that Appellant likely would have eventually trafficked it. As argued by Appellant, there is simply no evidence in the record to suggest Appellant was a drug user, or that his motivation in possessing the heroin found upstairs was possessed for the purpose of personal use. In this regard, the
{57} Further, and contrary to the State‘s argument, we believe the analysis set forth in State v. Shaw, supra, is applicable to the facts presently before us, despite the fact that it was released prior to the more detailed allied offenses test set forth in Ruff. In reaching its decision, Shaw relied on the reasoning of State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, for the proposition that trafficking and possession of drugs are allied offenses of similar import. Shaw at ¶ 13; citing Cabrales at ¶ 31. However, as noted in Shaw, the Cabrales test requires consideration of the defendant‘s conduct to determine whether the offenses were committed separately or with a separate animus. Id. at ¶ 14; citing Cabrales at ¶ 14. In
{58} In light of the foregoing, we conclude that the trial court erred in failing to merge the possession of heroin with the already-merged trafficking in heroin counts, for purposes of sentencing. For this reason, we sustain Appellant‘s first assignment of error. Accordingly, we reverse the trial court‘s imposition of sentences on these counts and remand this matter to the trial court with instructions to impose a single, mandatory sentence of eight years for the all three merged offenses.
ASSIGNMENT OF ERROR II
{59} In his second assignment of error raised by appellate counsel, Appellant contends that his convictions for engaging in a pattern of corrupt activity were not supported by sufficient evidence and that the trial court erred in denying his
Standard of Review
{60} Under
Legal Analysis
{61} As set forth above, Appellant contends that his convictions for engaging in a pattern of corrupt activity were not supported by sufficient evidence. Appellant‘s argument, however, is limited to an argument the State did not allege or prove the $1,000.00 monetary threshold required in order to prove all of the elements of those offenses. Appellant also argues
{62} We initially note that Appellant was indicted and convicted on multiple counts of trafficking in heroin, as well as possession of heroin, which served as the predicate offenses for his two convictions of engaging in a pattern of corrupt activity.
“Any violation of section 2907.21, 2907.22, 2907.31, 2913.02, 2913.11, 2913.21, 2913.31, 2913.32, 2913.34, 2913.42, 2913.47, 2913.51, 2915.03, 2925.03, 2925.04, 2925.05, or 2925.37 of the Revised Code, any violation of section 2925.11 of the Revised Code that is a felony of the first, second, third,
or fourth degree and that occurs on or after July 1, 1996, any violation of section 2915.02 of the Revised Code that occurred prior to July 1, 1996, any violation of section 2915.02 of the Revised Code that occurs on or after July 1, 1996, and that, had it occurred prior to that date, would not have been a violation of section 3769.11 of the Revised Code as it existed prior to that date, any violation of section 2915.06 of the Revised Code as it existed prior to July 1, 1996, or any violation of division (B) of section 2915.05 of the Revised Code as it еxists on and after July 1, 1996, when the proceeds of the violation, the payments made in the violation, the amount of a claim for payment or for any other benefit that is false or deceptive and that is involved in the violation, or the value of the contraband or other property illegally possessed, sold, or purchased in the violation exceeds one thousand dollars, or any combination of violations described in division (I)(2)(c) of this section when the total proceeds of the combination of violations, payments made in the combination of violations, amount of the claims for payment or for other benefits that is false or deceptive and that is involved in the combination of violations, or value of the contraband or other property illegally possessed, sold, or purchased in the combination of violations exceeds one thousand dollars[.]” (Emphasis added).
{63} It appears from the record that Appellant was provided the following jury instruction for engaging in a pattern of corrupt activity:
“Before you can find the Defendant guilty, you must find beyond a reasonable doubt the defendant, from on or about July 28, 2014 to on or about September 4, 2014, and in Meigs County, Ohio, while employed by or associated with an enterprise knowingly conducted or participated in directly or indirectly the affairs of the enterprise through a pattern of corrupt activity or the conviction of [sic], for the collection of an unlawful debt and at atleast [sic] one of the violations is a felony of the first, second or third degree.”
The trial court then went on to provide definitions of the following terms: “knowlingly,” “enterprise,” “conduct,” “participate,” “pattern of corrupt activity,” and “corrupt activity.” The court defined “corrupt activity,” which is the definition at issue here, as follows:
“Corrupt activity means engaging in, attempting to engage in, conspiring to engage in or soliciting, coercing and intimidating
another person to engage in one (1) or more of certain criminal offenses, namely the alleged instants [sic] of alleged corrupt activity includes any offense of trafficking in heroin or a felony one (1), two (2) or three (3) or four (4) possessiоn of heroin.”
Thus, the trial court‘s overall instruction and specific definition of corrupt activity provided to the jury did not include language regarding the monetary threshold of one thousand dollars that must be proven.
{64} The record reveals that Appellant did not object to the court‘s jury instructions provided on the offenses of engaging in a pattern of corrupt activity. Thus, we can recognize the error only if it constitutes plain error. “To constitute plain error, a reviewing court must find (1) an error in the proceedings, (2) the error must be a plain, obvious or clear defect in the trial proceedings, and (3) the error must have affected ‘substantial rights’ (i.e., the trial court‘s error must have affected the trial‘s outcome).” State v. Dickess, 174 Ohio App.3d 658, 2008-Ohio-39, 884 N.E.2d 92, ¶ 31 (4th Dist.); citing State v. Hill, 92 Ohio St.3d 191, 749 N.E.2d 274 (2001) and State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240. “Furthermore, notice of plain error must be taken with the utmost caution, under exceptional circumstances, and only to prevent a manifest miscarriage of justice.” Id.; citing State v. Landrum, 53 Ohio St.3d 107, 111, 559 N.E.2d 710 (1990) and State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804, paragraph three of the syllabus (1978). “A reviewing court should notice plain error only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id.
{65} “When we review a trial court‘s jury instructions, we may not judge ‘a single instruction to a jury * * * in artificial isolation,’ but we must view it ‘in the context of the overall charge.’ ” State v. Stephenson, 4th Dist. Adams No. 12CA936, 2013-Ohio-771, ¶ 2; quoting State v. Madrigal, 87 Ohio St.3d 378, 396, 721 N.E.2d 52 (2000). “Thus, we must consider the jury instructions ‘as a whole’ and then determine whether the jury charge probably misled the jury in a manner materially affecting the complaining party‘s substantial rights.” Id. As explained further by the Supreme Court of Ohio:
“In determining the question of prejudicial error in instructions to the jury, the charge must be taken as a whole, and the portion that is claimed to be erroneous or incomplete must be considered in its relation to, and as it affects and is affected by the other parts of the charge. If from the entire charge it appears that a correct statement of the law was given in such a manner that the jury could not have been misled, no prejudicial error
results.” State v. Hardy, 28 Ohio St.2d 89, 92, 276 N.E.2d 247 (1971).
“A defective jury instruction does not rise to the level of plain error unless the defendant shows that the outcome of the trial clearly would have been different but for the alleged erroneous instruction.” Dickess at ¶ 32; citing State v. Campbell, 69 Ohio St.3d 38, 41, 630 N.E.2d 339 (1994) and Cleveland v. Buckley, 67 Ohio App.3d 799, 805, 588 N.E.2d 912 (8th Dist.1990).
{66} The Ohio Official Jury Instructions covering Ohiо‘s RICO statutes contain two versions of jury instructions for engaging in a pattern of corrupt activity, one civil and one criminal. The instruction provided to Appellant herein was consistent with the criminal instruction provided in 2 OJI -CR 523.32(A)(1) overall. However, the criminal jury instruction for this offense does reference the civil instruction for the offense, 1 OJI-CV 445.05, which includes a comment stating as follows:
”
R.C. 2923.31(I) . When incidents of corrupt activity underR.C. 2923.31(E)(2)(b) and/or (c) are alleged, the financial limitations set forth in those sections should be read or summarized as well.”
{67} The Ninth District Court of Appeals considered the exact argument raised by Appellant herein, in State v. Wilson, 113 Ohio App.3d 737, 682 N.E.2d 5 (9th Dist.1996), holding that the failure to instruct the jury on the monetary requirement constituted error. Wilson at 744. However, because the court concluded the jury could not have found, based upon the evidence before it, that the monetary requirement had not been met, had it been properly instructed on the monetary requirement, the court reasoned that the outcome of the trial court would not have been different but for the error, and therefore declined to find plain error. Id.; see also State v. Nelson, 9th Dist. Summit No. 17525, 1996 WL 539201. Thus, in order to determine whether the trial court‘s error here resulted in plain error, we must undertake a sufficiency analysis.
{68} A review of the record reveals that Appellant was convicted of two counts of engaging in a pattern of corrupt activity. The first count was identified as count number five in criminal case no. 14CR173 and specified that the offense occurred between the dates of July 28, 2014, and September
{69} The bill further stated “[t]he incidents forming the pattern of corrupt activity are the other charges in this indictment: counts one through four.” Count one charged Appellant with fifth-degree trafficking in heroin on July 28, 2014, as a result of a controlled buy with Chad Diddle involving .22 grams of heroin. Count two charged Appellant with fifth-degree trafficking in heroin on August 16, 2014, as a result of a controlled buy with Chad Diddle involving 1.99 grams of heroin. Count three charged Appellant
{70} As noted by the State on appeal, testimony at trial demonstrated that the value of the heroin purchased in the July 28, 2014, controlled buy was approximately $80.00 and the value of the heroin purchased in the August 16, 2014, controlled buy was approximately $600.00. While no testimony was specifically provided regarding the value of the 45.84 grams of heroin located during the search of the residence on September 4, 2014, there was testimony in the record that the value of heroin per gram in Meigs County in 2014 was $240.00 per gram when sold by the gram and $400.00 when sold by one-tenth grams quantities. More specifically, William Stewart, a member of the Major Crimes Task Force for Gallia and Meigs counties, testified that the value of a tenth gram of heroin was $40.00, a half gram was $120.00, and a gram was $240.00. Additionally, Chad Diddle testified that he sold heroin for Appellant from July to September 2014, and that he typically sold fifteen to sixteen grams of
{¶71} The second count was identified as count one, in a single count indictment, in case no. 15CR023, and specified that the events occurred between the dates of April 3, 2014, and May 23, 2014. The “More Particular Bill of Particulars” filed by the State made the same general allegations as the other count of engaging in a pattern of corrupt activity, which referenced the activities of Appellant, Chad Diddle, Amber Duffy, Jeremy Burgess and Theodore Brown. The bill specifically referenced sales by Duffy on behalf of Appellant on April 8, 2014, May 1, 2014, and May 23, 2014, where Duffy sold .46 grams, 1 gram, and .93 grams of heroin, respectively. It also referenced a sale by Theodore Brown on April 3, 2014, which was dismissed prior to trial and not argued as a predicate offense for this offense at trial. The bill further stated “[t]he incidents forming the
{¶72} Applying the testimony regarding the value of the heroin at that time in Meigs County, Ohio, the value of the controlled buys involving Amber Duffy on behalf of Appellant amounts to approximately $600.00, which falls short of the $1,000.00 monetary threshold set forth in the statute. However, Duffy testified at trial that during the months of April and May of 2014, timeframes set forth in the indictment, she sold heroin for Appellant daily. She testified that she usually sold twenty grams of heroin every two days, or three days maximum. She said every two to three days she would accumulate $4,800.00 from the heroin sales which she would give to Appellant in exchange for more heroin to sell, as well as heroin for her own personal use. In light of the foregoing, the jury could not have concluded that the State failed to prove the monetary threshold amount of $1,000.00 required by the statute. Thus, we cannot conclude that the trial court‘s failure to instruct the jury on the required monetary threshold resulted in plain error as to the second count of engaging in a pattern of corrupt activity.
{¶73} Further, in light of the above testimony and legal analysis, we conclude both of Appellant‘s convictions were supported by sufficient
ASSIGNMENT OF ERROR III
{¶74} In his third assignment of error raised by appellate counsel, Appellant contends his right to a fair trial and due process was violated. He raises four arguments under this assignment of error claiming as follows: 1) the trial court erred when it failed to declare a mistrial when Appellant‘s presumption of innocence was eroded when multiple jurors saw him in his orange jail jumpsuit; 2) the trial court erred when it failed to declare a mistrial when the prosecutor elicited improper testimony in direct contravention to the trial court‘s ruling regarding Appellant‘s motion in limine to limit testimony regarding his ownership of cattle; 3) the trial court erred when it failed to declare a mistrial when testimony revealed that there were likely photographs related to the controlled buys that were not turned over during discovery; and 4) the errors in the trial resulted in cumulative error. The State contends the trial court did not err or abuse its discretion in denying Appellant‘s various motions for mistrial, and argues that the errors alleged did not amount to cumulative error.
{¶75} “Our analysis begins with the well-settled premise that the decision whether to grant a mistrial rests within a trial court‘s sound discretion, and its decision will not be reversed absent an abuse of that discretion.” State v. Daniels, 4th Dist. Scioto No. 11CA3423, 2011-Ohio-5603, ¶ 10; see also State v. Kulchar, 4th Dist. Athens No. 10CA6, 2015-Ohio-3703, ¶ 38. “A trial court abuses its discretion when it makes a decision that is unreasonable, arbitrary, or unconscionable.” State v. Keenan, 143 Ohio St.3d 397, 2015-Ohio-2484, 38 N.E.3d 870, ¶ 7; quoting State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34. In general a mistrial should not be granted based on an error or irregularity unless an accused‘s substantial rights are аdversely affected. Daniels at ¶ 11; see also State v. Wharton, 4th Dist. Ross No. 09CA3132, 2010-Ohio-4775, ¶ 25.
Legal Analysis
{¶76} Appellant contends that the trial court erred and abused its discretion in denying three different motions for mistrial based upon three different grounds. Appellant further contends cumulative error from the denial of these three motions occurred as a result. As such, we will examine each alleged error or abuse of discretion separately.
{¶77} Appellant contends the trial court erred in denying his motion for a mistrial that was made because of an incident that occurred on the morning of the second day of trial in which three or four of the jurors saw Appellant wearing his orange jail jumpsuit. A defendant cannot be compelled to stand trial while dressed in prison attire. Estelle v. Williams, 425 U.S. 501, 512, 96 S.Ct. 1691 (1976). As the Court observed in Estelle, however,
“[T]he courts have refused to embrace a mechanical rule vitiating any conviction, regardless of the circumstances, where the accused appeared before the jury in prison garb. Instead, they have recognized that the particular evil proscribed is compelling a defendant, against his will, to be tried in jail attire.” (Emphasis added.) Id. at 507.
Similarly, a defendant may not be tried in visible physical restraints in the absence of a particularized need such as “physical security, escape prevention, or courtroom decorum.” Deck v. Missouri, 544 U.S. 622, 628, 125 S.Ct. 2007 (2005). Thus, cases analyzing prejudice caused by jurors viewing a defendant in physical restraints are analogous to cases involving jurors viewing a defendant in prison attire. When a jury‘s view of the
{¶78} Here, the record indicates a motion was filed prior to trial requesting Appellant be permitted to wear regular clothing for trial. That motion was granted. However, on the morning of the second day of trial three or four jurors saw Appellant wearing his orange jail jumpsuit while being transported through the courthouse in his wheelchair into the law library to change into different clothes. The record indicates the trial was taking place in a very small courthouse and that the jury room was located right beside the law library. The record further indicates the incident was brief, accidental, and occurred outside of the courtroom and prior to the start of trial that day. Further, there is no evidence in the record to indicate the jurors that saw Appellant informed the rest of the jury of the incident. Thus, it does not appear that the full jury was aware Appellant was actually in custody during trial.
{¶79} Applying the foregoing legal reasoning to the facts before us, we cannot conclude that the trial court‘s decision denying Appellant‘s motion on this ground was unreasonable, arbitrary, or unconscionable. See State v. Halsell, 9th Dist. Summit No. 24464, 2009-Ohio-4166, ¶ 9 (“Even assuming
Missing Photographs/Discovery Violation
{¶80} Appellant also contends the trial court erred in denying his motion for a mistrial that was made after it became apparent during trial that there may have been some photographs related to the controlled buys that formed the basis of the multiple trafficking in heroin counts. Appellant argues that Task Force Director William Gilkey, Detective Justin Rice, and Detective William Stewart all testified that it is standard procedure when executing controlled drug buys to photograph the money used and the
{¶81} The State concedes the testimony, but states that “either the photographs were not provided to the prosecution, or the prosecution did not provided [sic] those photographs to Appellant for some unknown reason.” However, the State notes that it did not attempt to introduce those photographs into evidence at trial. The State further argues that photographs related to evidence of controlled buys would not have been material to the preparation of a defense, but would rather serve to implicate Appellant. Nonetheless, the State concedes that “if such photographs existed,” they should have been provided to Appellant. There is no evidence in the record
{¶82} As set forth by the State,
“This rule is to provide all parties in a criminal case with the information necessary for a full and fair adjudication of the facts, to protect the integrity of the justice system and the rights of defendants, and to protect the well-being of witnesses, victims, and society at large. All duties and remedies are subject to a standard of due diligence, apply to the defense and the prosecution equally, and are intended to be reciprocal. Once discovery is initiated by demand of the defendant, all parties have a continuing duty to supplement their disclosures.”
Under
{¶83} In Darmond, the Supreme Court of Ohio set forth three factors that govern a trial court‘s exercise of discretion in imposing a sanction for a discovery violation by the State. Id. at ¶ 35. Per Darmond, these factors include 1) whether the failure to disclose was a willful violation of
{¶84} Here, there is no evidence in the record that this discovery violation was willful on the part of the State. In fact, when it was discovered there were missing photos, it seemed just as much a surprise to the State as it was to the defense. Although the State did have a duty of due diligence and arguably should have realized there were photos taken that were not provided to them, there is no evidence the violation was willful. Further, the value of the missing photos in terms of the preparation of the defense is
{¶85} Based upon our consideration of the foregoing factors as applied to the facts presently before us, we cannot conclude that the trial court‘s handling of thе discovery violation was unreasonable, arbitrary, or unconscionable. Thus, we cannot conclude that the trial court abused its discretion in denying the motion for mistrial based upon this ground. See State v. Wilson, 6th Dist. Lucas No. L-02-1178, 2003-Ohio-2786, ¶ 10 (reasoning that although the State‘s failure to provide photographs before trial constituted a discovery violation, because the defendant was not
Mention of Ownership of Cattle
{¶86} Appellant also contends the trial court erred in denying his motion for a mistrial that was made after the prosecution elicited testimony from one its witnesses indicating Appellant owned cattle, despite a previous motion in limine being filed on that very subject and an alleged understanding by the parties that the order had been granted. The State does not dispute that it was agreed there was to be no mention of Appellant‘s ownership of cattle, however, it argues that the brief question and answer was not intentional, and that Appellant was not prejudiced or denied a fair trial by this brief reference to the ownership of cattle. As such, the State argues that the prosecutor‘s conduct did not rise to the level of prosecutorial misconduct.
{¶87} “The test for prosecutorial misconduct is whether the conduct was improper and, if so, whether the rights of the accused were materially prejudiced.” State v. Leonard, 4th Dist. No. 08CA24, 2009-Ohio-6191, ¶ 36; citing State v. Smith, 97 Ohio St.3d 367, 2002-Ohio-6659, 780 N.E.2d 221, ¶ 45. “The ‘conduct of a prosecuting attorney during trial cannot be grounds for error unless the conduct deprives the defendant of a fair trial.’ ” Id.;
{¶88} A review of the trial transcript reveals that the prosecutor did in fact ask a question of its witness that was likely to elicit a response indicating Appellant owned cattle. Thus, we conclude the prosecutor‘s actions constituted error. However, because we cannot conclude that the error materially prejudiced Appellant, we cannot conclude that the prosecutor‘s actions rose to the level of prosecutorial misconduct that deprived Appellant of a fair trial.
{¶89} The record reveals that the prosecutor asked a prohibited question one time to one witness. Thus, this was an isolated incident. Further, despite the fact that all parties agreed there would be no mention of Appellant‘s ownership of cattle, we find any connection between ownership
Cumulative Error
{¶90} Finally, Appellant argues cumulative error based upon the three grounds previously discussed under this assignment of error. Under the doctrine of cumulative error, “a conviction will be reversed where the cumulative effect of errors in a trial deprives a defendant of the constitutional right to a fair trial even though each of [the] numerous instances of trial court error does not individually constitute cause for reversal.” State v. Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d 623 (1995). “Before we consider whether ‘cumulative errors’ are present, we must first find that the trial court committed multiple errors.” State v. Harrington, 4th Dist. Scioto No. 05CA3038, 2006-Ohio-4388, ¶ 57; citing State v. Goff, 82 Ohio St.3d 123, 140, 694 N.E.2d 916 (1998).
{¶92} Thus, despite finding three technical errors, none of the errors were egregious and only one appears to have been intentional. Three such errors in the course of a five-day trial involving ten criminal counts spanning three different cases that were consolidated for trial does not rise to the level of cumulative error. Thus, after reviewing the entirety of the proceedings
Conclusion
{¶93} Having found that none of the errors identified herein necessitated a mistrial or rose to the level of cumulative error, Appellant‘s third assignment of error is overruled.
ASSIGNMENT OF ERROR IV
{¶94} In his fourth and final assignment of error raised by appellate counsel, Appellant contends that his maximum, possible sentence on all counts is not clearly and convincingly supported by the record. Appellant argues the trial court erred when it sentenced him to the maximum possible sentence available despite the record before it, which indicated Appellant had no prior felony record, has work history in Columbus and has three small children and a family to support. The State contends that the trial court did not err in imposing maximum sentences on all counts, which it contends were supported by the record, and further argues that the imposition of maximum sentences does not require specific findings.
Standard of Review
{¶95} When reviewing felony sentences, we apply the standard of review set forth in
Legal Analysis
{¶96} Here, Appellant was sentenced to an aggregate prison term of thirty-two years, consisting of maximum and consecutive sentences imposed on all counts, other than the ones that merged for purposes of sentencing, as discussed above. It appears that the sentences Appellant received on all counts were within the statutory range for each offense, thus it cannot be said that the length of either sentence is contrary to law. Further, and importantly, maximum sentences do not require specific findings. State v. McClain, 4th Dist. Pickaway No. 13CA17, 2014-Ohio-4192, ¶ 36; State v. Lister, 4th Dist. Pickaway No. 13CA15, 2014-Ohio-1405, ¶ 10; citing State v. White, 2013-Ohio-4225, 997 N.E.2d 629, ¶ 7 (1st Dist.). Although trial courts have full discretion to impose any term of imprisonment within the statutory range, they must consider the sentencing purposes in
“(A) A court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing. The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others and to punish the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources. To achieve those purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both.”
{¶97}
{¶98} While the trial court is required to consider the
{¶99} A review of the record reveals that although the trial court did not specifically state its reasons for imposing maximum sentences on all counts, it expressly stated its consideration of the required principles and purposes of felony sentences. For instance, in addition to enumerating the applicable sentencing statutes and factors, the trial court stated that it had considered the testimony given over the five-day trial, and that it “is ever mindful of State v. Foster and House Bill eighty-six and that the Court must formulate its decision based upon overriding principles and purposes of felony sentencing * * * ”
{¶100} Based on the foregoing, it is clear that the trial court appropriately considered the principles and purposes of felony sentences, as set forth in
“(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 , or2929.18 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.”
{¶102} A review of the record before us reveals that the trial court made the required findings before imposing consecutive sentences, and the finding made are supported by the record. For example, the trial court expressly found, pursuant to
{¶103} We further briefly address Appellant‘s argument that the State‘s urging the trial court to “send a message” at the sentencing stage was improper. A review of the record indicates that the State urged the court as follows during the sentencing hearing:
“Based upon the different instances, each of the controlled buys, that warrants consecutive findings as well as the amount of Heroin found, the harm to Meigs County and society, and the fact that he was a major supplier to Meigs County over that timeframe, we would ask that his Court set [sic] a message that
that‘s not the kind of business the citizens of Meigs County want in its town or community, and we would ask that the max be imposed on each one. And the total that comes to, would be sixteen (16) years mandatory prison term, and additional eleven (11) years non-mandatory prison term, and sixty (60) months of top of that for a total of thirty-two (32) years. Thank you.”
In response, Appellant‘s counsel stated he was “troubled” at the State‘s request to “send a message” and argued “that‘s not how our justice system works.”
{¶104} On appeal, the State responds to this argument by pointing out that under
{¶105} This Court has previously acknowledged that a “send a message” argument is improper when made to a jury prior to a finding of guilt. State v. Dyer, 4th Dist. Scioto No. 07CA3163, 2008-Ohio-2711, ¶ 47; citing State v. Grimes, 2nd Dist. Hamilton No. C-030922, 2005-Ohio-203, ¶ 19 (“In a criminal prosecution, the state is not permitted to ask the jury to
{¶106} Thus, having found no error in the trial court‘s imposition of maximum and consecutive sentences, which resulted in the maximum, possible sentence on all counts, we overrule Appellant‘s fourth and final assignment of error. As set forth above, however, our resolution of this assignment of error is qualified by our disposition of Appellant‘s first assignment error, which reversed the imposition of the eight-year prison term imposed for the sole count of possession of heroin. Thus, after remand, the total length of Appellant‘s combined sentences will be reduced from thirty-two years to twenty-four years. Accordingly, this matter is affirmed in part, reversed in part, and remanded with instructions.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
It is ordered that the JUDGMENT BE AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. Court costs shall be divided equally between the parties.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Mеigs 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.
Abele, J.: Concurs in Judgment and Opinion.
Hoover, P.J.: Concurs in Judgment Only.
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.