State v. DohmState v. Dohm
Timothy Young, Ohio Public Defender, and Melissa M. Prendergast, Assistant State Public Defender, 250 East Broad Street. #1400, Columbus, OH 43215-9308 (For Defendant-Appellant).
O P I N I O N
CYNTHIA WESTCOTT RICE, J.
{¶1} After trial by jury, appellant, Steven F. Dohm, was convicted of two counts of drug trafficking in the vicinity of a juvenile and sentenced to the maximum term of imprisonment for each crime. Appellant now appeals his conviction. For the reasons discussed in this opinion, we affirm in part, reverse in part, and remand the matter for further proceedings.
{¶3} The first controlled purchase occurred on the evening of December 5, 2007 at the River Isle apartment complex in Willoughby, Ohio. On that date, arrangements were made for CI 794 to meet appellant in apartment A16, which belonged to an associate of CI 794, Rob Bernstein. At the time of the incident, CI 794 was also residing in apartment A16 with his fiancé and her three-year-old daughter.
{¶4} Before commencing the buy, SA 82 checked CI 794 for contraband, outfitted the informant with an audio transmitter, provided him with $100 in Lake County Narcotics Agency money to purchase the crack cocaine, and completed certain agency paperwork related to the buy. With respect to the transmitter, SA 82 testified such wires typically permit an investigating officer to hear exactly what a CI hears; the clarity, however, varies depending upon the distance, weather, and building in which the CI makes the purchase.
{¶5} After preparations were completed, SA 82 drove CI 794 to a location approximately 200 yards from the apartment complex. CI 794 exited the vehicle and walked toward “Building A” of the River Isle apartment complex. After entering the building, SA 82 lost sight of CI 794, but could still hear via the transmitter. Once CI 794 was in the building, SA 82 testified he could hear several voices, including that of a young child and a voice CI 794 identified as appellant. While inside the apartment, CI 794 testified appellant gave him a cellophane bag of crack cocaine in exchange for
{¶6} Once he reunited with SA 82, CI 794 turned over the crack cocaine he had purchased to SA 82. CI 794 was then “debriefed,” i.e., he was asked a series of questions about the buy and again searched by SA 82. The two men subsequently drove to another location where SA 82 removed the transmitter. After CI 794 submitted a statement regarding the transaction, he exited SA 82‘s vehicle and left. Testing confirmed that the drug purchased from appellant was .33 grams of crack cocaine.
{¶7} Several days later, on the evening of December 10, 2007, CI 794 contacted SA 82 indicating he could do another controlled buy at the same apartment building. On this date, the transaction was arranged with the assistance of Rob Bernstein. Similar to the first buy, CI 794 was outfitted with a wire transmitter and given $100 in Lake County Narcotics Agency money to purchase crack cocaine. After being checked for contraband and completing the necessary documentation, CI 794 exited SA 82‘s vehicle and walked toward the building.
{¶8} Once inside the building, CI 794 was directed to apartment A21 to meet with appellant. Upon entering, CI 794 noticed five children between the ages of three and 12 in the apartment‘s living room. CI 794 proceeded to a back bedroom where he met appellant and an individual referred to as “Jose” to complete the transaction. CI 794 testified that, upon entering the bedroom, appellant again sold him $100 in crack cocaine. Shortly after the exchange, CI 794 returned to SA 82‘s vehicle and handed SA 82 the drugs. CI 794 was again debriefed and searched. SA 82 then drove to a different location where CI 794 surrendered the purchased drugs and the transmitter
{¶9} On January 5, 2009, appellant was indicted by the Lake County Grand Jury on two counts of trafficking in cocaine, felonies of the fourth degree, each in violation of
{¶10} Appellant now appeals and assigns three errors for our consideration. We shall begin our analysis by addressing appellant‘s second assignment of error, which provides:
{¶11} “The trial court allowed the State to protect the identity of the confidential informant, whose name was already known to Mr. Dohm, without a valid reason to do so. Protecting the informant‘s identity provided the jury with the inference that Mr. Dohm was a violent person who would retaliate against him. This ruling violated Mr. Dohm‘s right to a fair trial and deprived him of Due Process under the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 16 of the Ohio Constitution.”
{¶12} Appellant argues that the trial court erred in permitting the state to keep CI 794‘s identity confidential in a public trial where the informant‘s name was already known to the defendant. According to appellant, there was no compelling reason to conceal CI 794‘s identity and, in his view, the state‘s only purpose in moving the court to
{¶13} We first point out that appellant failed to object to the state‘s request to conceal CI 794‘s identity during the proceedings and therefore waived all but plain error. The Supreme Court of Ohio has held that “[p]lain error does not exist unless it can be said that but for the error, the outcome of the trial would clearly have been otherwise.” State v. Moreland (1990), 50 Ohio St.3d 58, 62.
{¶14} Prior to the commencement of trial, the state asked the court to order all parties to refer to the confidential informant as CI 794 “*** so there‘s not a public record of the Defendant‘s name - -.” In response, defense counsel stated he had no problem with the state‘s request to the extent CI 794 did not deny his prior convictions at trial. If CI 794 did so, defense counsel stated his identity should be disclosed. The prosecutor represented that he did not anticipate CI 794 would deny his past convictions, “[b]ut certainly if that comes up, then we can revisit the name issue ***.”
{¶15} Contrary to appellant‘s argument, the above exchange suggests the state did have a valid, reasonable foundation for keeping CI 794‘s name confidential. By keeping his identity off the record, police could still use him as a confidential informant for controlled drug buys in the future. For this reason alone, appellant‘s argument fails.
{¶16} Appellant nevertheless speculates that the concealment of CI 794‘s identity on record permitted the jury to infer he is a violent person who might retaliate against the informant. Given the nature of the case and the evidence submitted at trial, however, we do not believe such an inference is plausible.
{¶18} Regardless of these points, any potential error which could be ascribed to the concealment of CI 794‘s identity was invited. “Under the invited-error doctrine, a party will not be permitted to take advantage of an error which he himself invited or induced the trial court to make. ***” (Citations omitted). State v. Nievas (1997), 121 Ohio App.3d 451, 456. Although we believe there was no obvious error in keeping CI 794‘s identity secret, defense counsel agreed that concealing his identity was not a problem, so long as CI 794 did not deny his past criminal history. CI 794 did not deny his prior convictions. Because no additional reservations were expressed by defense counsel regarding the concealment of the informant‘s identity, any error issuing from the concealment was invited.
{¶19} Appellant‘s second assignment of error is overruled.
{¶20} His first assignment of error provides:
{¶21} “The trial court violated Mr. Dohm‘s right to Due Process under the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 16 of the Ohio Constitution when it convicted him of two counts of trafficking in drugs in the vicinity of a juvenile when that was against the manifest weight of the evidence.”
{¶23} “‘the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief.‘” (Emphasis sic.) State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, citing Black‘s Law Dictionary (6th Ed. 1990).
{¶24} In short, a manifest weight inquiry analyzes whether the state met its burden of persuasion at trial beyond a reasonable doubt. Id. at 390. In weighing the evidence submitted at a criminal trial, an appellate court must defer to the factual findings of the jury regarding the weight to be given the evidence and credibility of the witnesses. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus.
{¶25} Appellant argues the jury lost its way in convicting him because CI 794‘s testimony was inherently unreliable and the state offered no corroborating evidence to buttress CI 794‘s testimony. In support, appellant argues CI 794 had been previously convicted of “crimes of dishonesty,” viz., misdemeanor receiving stolen property in 2002 and felony receiving stolen property in 2005. Moreover, appellant observes the audio tapes of the controlled buys fail to directly implicate him as the seller. Although appellant‘s points are factually true, we do not believe they militate heavily against the jury‘s verdict.
{¶27} Appellant‘s first assignment of error is overruled.
{¶28} Appellant‘s final assignment of error alleges:
{¶29} “The trial court unlawfully imposed consecutive terms of imprisonment when it did not make the findings required by statute.”
{¶30} Under his final assignment of error, appellant contends the trial court erred in failing to make factual findings pursuant to
{¶31} On January 14, 2009, in Oregon v. Ice (2009), 129 S.Ct. 711, the United States Supreme Court determined the Sixth Amendment does not prohibit states from assigning to judges, rather than to juries, the finding of facts necessary to the imposition of consecutive, rather than concurrent, sentences for multiple offenses. Id. at 717-718.
{¶32} “[t]here is no encroachment *** by the judge upon facts historically found by the jury, nor any threat to the jury‘s domain as a bulwark at trial between the State and the accused. Instead, the defendant—who historically may have faced consecutive sentences by default—has been granted by some modern legislatures statutory protections meant to temper the harshness of the historical practice.” Id. at 718.
{¶33} Pursuant to Ice, the requirement that a judge find specific facts prior to imposing consecutive sentences is constitutionally permissible and does not run afoul of a defendant‘s Sixth Amendment right to a trial by jury.
{¶34} Although the Supreme Court of Ohio severed
{¶35} “It is the judiciary‘s role to apply properly enacted laws to the extent they are constitutional. See State v. Cunningham, 113 Ohio St.3d 108, 113, 2007-Ohio-1245. In Ice, the United States Supreme Court held that statutory sentencing provisions that require judicial factfinding as a prerequisite to imposing consecutive sentences to be constitutional. This ruling was based upon Apprendi and its progeny, the same body of law upon which the Ohio Supreme Court based its decision in Foster. Because Foster extrapolated from Apprendi and its progeny that laws which require judicial factfinding as a necessary precondition to imposing consecutive sentences are unconstitutional, it, in this regard, was improperly decided. Subsequent to Ice, the legislature re-imposed the requirement that a sentencing judge must make certain findings before imposing consecutive sentences. Pursuant to the holding in Ice, this legislation is constitutional and thus it is a trial court‘s duty to apply that law as it is written.” Jordan, supra, at ¶20.
{¶36} Despite these points, the dissent contends the April 7, 2009, post-Ice amendment did not have the effect of reenacting the provision because it did not change or modify language of the original severed subsection. According to the dissent, the legislature‘s intent is manifested in the changes it specifically makes in passing and codifying an amendment to an existing statute. Because no specific changes were made to
{¶37} In Stevens,
{¶38} First of all, the instant legislation does not require an examination of the legislature‘s intent. “Where the language [of a statute] itself clearly expresses the legislature‘s intent, the courts need to look no further.” Katz v. Dept. of Liquor Control (1957), 166 Ohio St. 229, 231; see, also, Kendall v. United States Dismantling Co. (1985), 20 Ohio St.3d 61, 64. The language of
{¶39} Further, it is necessary to note an additional, salient distinction between Stevens and the case at bar: Several months prior to the effective date of current
{¶40} The United States Supreme Court is the highest authority on matters of constitutional interpretation. See, e.g., Marbury v. Madison (1803), 5 U.S. 137, 177. (“It is emphatically the province and duty of the judicial department to say what the law is.“) The Court‘s holding in Ice was built upon the same Sixth Amendment jurisprudence as the Ohio Supreme Court‘s ruling in Foster. Id. at 3. (“The question presented *** is whether Ohio‘s felony sentencing structure violates the Sixth Amendment to the United States Constitution in the manner set forth in Apprendi v. New Jersey (2000), 530 U.S. 466, and Blakely v. Washington (2004), 542 U.S. 296[.]“) Ice, therefore, substantively overruled Foster as it pertained to
{¶41} “a court may not impose consecutive sentences for multiple offenses unless it ‘finds’ three statutory factors.
{¶42} One final point on this issue requires attention. Although not thoroughly articulated in Jordan, the requirements of
{¶43} The trial court in this case sentenced appellant on May 28, 2009, but neither made the necessary findings for imposing consecutive sentences as required by
{¶44} Appellant‘s third assignment of error is sustained.
{¶45} For the reasons discussed above, appellant‘s first and second assignments of error are without merit; appellant‘s third assignment of error, however, is sustained. The judgment of the Lake County Court of Common Pleas is therefore affirmed in part, reversed in part, and remanded.
TIMOTHY P. CANNON, J., concurs,
DIANE V. GRENDELL, J., concurs in part, and dissents in part, with a Concurring/Dissenting Opinion.
DIANE V. GRENDELL, J., concurs in part, and dissents in part, with a Concurring/Dissenting Opinion.
{¶46} I concur in the majority‘s judgment with respect to the first two assignments of error, confirming the appellant‘s convictions. I respectfully dissent from
{¶47} The majority‘s position that, since
{¶48} The Ohio Supreme Court has long held: “Where there is reenacted in an amendatory act provisions of the original statute in the same or substantially the same language and the original statute is repealed in compliance with Section 16, Article II of the Constitution, such provisions will not be considered as repealed and again reenacted, but will be regarded as having been continuous and undisturbed by the amendatory act.” In re Allen (1915), 91 Ohio St. 315, at paragraph one of the syllabus.
{¶49} Thus, the inclusion of
{¶50} This conclusion is demonstrated by considering a similar situation from Ohio legal history. In 1997, the General Assembly enacted
{¶52} This position was unequivocally rejected by the Ohio Supreme Court in Stevens v. Ackman, 91 Ohio St.3d 182, 2001-Ohio-249, at paragraph two of the syllabus (”
{¶53} Accordingly, I do not agree that