State v. DunnState v. Dunn
Decided: August 14, 2023
Judgment: Affirmed in part, reversed in part, and remanded
James R. Flaiz, Geauga County Prosecutor, and Christian A. Bondra, Assistant Prosecutor, Courthouse Annex, 231 Main Street, Suite 3A, Chardon, OH 44024 (For Plaintiff-Appellee).
Wesley C. Buchanan and Anna K. Ley, 50 South Main Street, Suite 625, Akron, OH 44308 (For Defendant-Appellant).
JOHN J. EKLUND, P.J.
{¶1} Appellant, Niquan Dunn, appeals his convictions of Aggravated Trafficking in Drugs, a fourth degree felony in violation of
{¶3} After review of the record and the applicable caselaw, the judgment of the Geauga County Court of Common Pleas is affirmed in part, reversed in part, and remanded. There was insufficient evidence that Appellant violated
{¶4} The trial court transcript reflects the following facts:
{¶5} On December 17, 2021, Detective Steven Deardowski received complaints of drug activity at a residence in Chardon, Ohio. After obtaining, and then executing, a search warrant, the police officers found methamphetamine in Justin Gould‘s residence. Detective Deardowski asked Mr. Gould if he would be interested in “sharing information” regarding who sold him the methamphetamine. Mr. Gould became an informant in exchange for the detectives’ agreeing to not charge him with a crime. Mr. Gould agreed to a “controlled buy,” in which he would purchase the drug from a buyer with police secretly observing in the area. Mr. Gould then arranged to meet with a man he called “Q” at Mr. Gould‘s residence to purchase the drug. Mr. Gould described “Q” to Detective Deardowski as “a black male and he lived in the area, and he would be walking.” Mr. Gould later identified “Q” as Appellant. Detective Deardowski observed a man matching “Q‘s” description enter Mr. Gould‘s residence. Detective Deardowski later identified the man he saw walking as Appellant. Detective Deardowski then saw Appellant leave Mr. Gould‘s residence. Mr. Gould confirmed to Detective Deardowski that he had purchased methamphetamine from Appellant during the “controlled buy” and handed it over to the police.
{¶6} Detective Deardowski notified Detective Altemus, another detective observing the “controlled buy,” that the purchase had been completed. Detective Altemus then followed the individual who had left Mr. Gould‘s residence and saw him walk to 430 Karen Drive. Detective Altemus identified that individual as Appellant. The police department then contacted the garbage company who collected garbage at 430 Karen
{¶7} The detectives conducted a second trash pull at 430 Karen Drive in January 2022. As a result of the second trash pull, the detectives found a mirror with white reside on it and a “narcotics tear-off baggie.” Detective Altemus described, without objection, a “tear-off baggie” as one used by sellers for ease of production, but he explained that only the seller would have such plastic bags and not the buyer. Both objects tested presumptively positive for cocaine.
{¶8} The court granted the Chardon Police Department a narcotics related search warrant for 430 Karen Drive. When the detectives arrived at the residence, Shirley Gossett and Joseph Gossett, Appellant‘s relatives, answered the door and allowed the detectives to enter. In the living room, the detectives saw two middle-aged females, and a four-month old baby. The detectives asked who lived at the residence and they were told that Shirley Gossett, Joseph Gossett, the two females, the baby, and Appellant all resided there. The detectives did not find any drugs or drug related materials on the first floor. The detectives proceeded to the basement where they encountered Appellant sleeping on the floor. Detective Altemus found “a plastic storage container with three drawers. And in those three drawers were mail belonging to Niquan, his wallet and clothes belonging to Niquan. And we also found, there was an orange bag in the top drawer. And in there, we found at the time, well, when we weighed it, it was 3.5 grams of
{¶9} The Geauga County grand jury indicted Appellant on 6 counts: (1) Aggravated Trafficking in Drugs; (2) Aggravated Trafficking in Drugs; (3) Aggravated Possession of Drugs; (4) Trafficking in Cocaine; (5) Possession of Cocaine; and (6) Possession of Criminal Tools.
{¶10} The court held a jury trial on July 19, 2022.
{¶11} At trial, the state made an oral motion in limine to prevent the defense from introducing evidence of Joseph Gossett‘s prior criminal convictions. The state argued that the convictions were inadmissible character testimony, that his last conviction was 20 years before the instant trial, and that Mr. Gossett was not testifying. The defense opposed the motion, arguing that “this is relevant to presenting an alternative theory of, you know, of a theory of defense, an alternative source of these drugs that the Jury should be able to consider, given that this individual was residing in the home.” The court granted the state‘s motion.
{¶12} The state offered three witnesses: Detective Deardowski, Justin Gould, and Detective Altemus. After the state rested its case, the defense made a
{¶14} For sentencing, the court merged count 3 with count 2, and count 5 with count 4. The court sentenced Appellant to 12 months imprisonment on count 1, 24 months on count 2, and 12 months on count 4. The court ordered count 2 to be served consecutive to count 1, and that count 4 would be served concurrent to count 2, for a total of 36 months.
Law and Analysis
{¶15} Appellant raises four assignments of error:
{¶16} First assignment of error: “There was insufficient evidence as a matter of law to convict Niquan.”
{¶17} “‘Sufficiency’ is a term of art meaning that legal standard which is applied to determine whether the case may go to the [factfinder] or whether the evidence is legally sufficient to support the [factfinder‘s] verdict as a matter of law.” State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997), citing Black‘s Law Dictionary (6 Ed.1990) 1433. The appellate court‘s standard of review for sufficiency of evidence is to determine,
{¶18} When evaluating the sufficiency of the evidence, we do not consider its credibility or effect in inducing belief. Thompkins at 387. Rather, we decide whether, if believed, the evidence can sustain the verdict as a matter of law. Id. This naturally entails a review of the elements of the charged offense and a review of the State‘s evidence. State v. Richardson, 150 Ohio St.3d 554, 2016-Ohio-8448, 84 N.E.3d 993, ¶ 13.
{¶19} Appellant asserts that the court had insufficient evidence to convict him of Aggravated Trafficking in Drugs, a third-degree felony, in violation of
{¶20}
{¶21} The state‘s evidence that Appellant prepared to distribute a controlled substance for sale was: the narcotics plastic bags and felony plastic bags found in the trash pull at Appellant‘s residence; the cocaine, methamphetamine, and digital scale found with Appellant‘s belongings at his residence, and the controlled buy in which Appellant sold methamphetamine to Justin Gould. After viewing the evidence in a light
{¶22} The question remains whether Appellant committed the crime in the vicinity of a juvenile.
{¶23}
{¶24} In his brief, Appellant cites to State v. Smith, 3rd Dist. Union No. 14-01-28, 2002-Ohio-5051 for the proposition that a juvenile being present during the execution of a search warrant is insufficient alone to find that the offense was committed in the vicinity of a juvenile. State v. Smith is distinguishable from the instant case because in that case, there was no evidence presented that the juvenile resided in the residence.
{¶25} The state offers State v. Reuschling, 11th Dist. Ashtabula No. 2007-A-0006, 2007-Ohio-6726 as support for its contention that a juvenile being in the residence where the crime had been committed is sufficient evidence to find the crime was committed in the vicinity of a juvenile. In Reuschling, the defendant and a friend were found committing the crime while the friend‘s child was upstairs in a bedroom asleep. The juvenile did not live in the residence. The defendant argued that the state did not prove he committed the crime within 100 feet of a juvenile. This court held that it was sufficient to find the crime was committed in the vicinity of a juvenile when that juvenile is in the residence
{¶26} In State v. Flores, 6th Dist. Wood App. Nos. WD-04-012 and WD-04-050, 2005-Ohio-3355, the Sixth District held that evidence of juveniles residing in the same house as the defendant was sufficient to prove that the offense had been committed in the vicinity of the child. However, this case is also distinguishable because there was additional evidence in Flores offered to support the conviction: some of the children‘s items were found near drug paraphernalia. In this case, the drugs and digital scale were found separately stored away in the container where Appellant stored all of his personal belongings; there was no evidence that the drugs or associated articles ever were near the baby or any of the baby‘s belongings.
{¶27} Evidence that a juvenile resides in a residence where a crime is committed is insufficient, under the definition of “vicinity of a juvenile,” to prove that the crime was committed while the juvenile was present. A violation of
{¶28} Count 2 had been enhanced from a fourth-degree felony to a third degree felony under
{¶29} Appellant‘s first assignment of error is with merit.
{¶30} Second assignment of error: “Niquan‘s convictions were against the manifest weight of the evidence.”
{¶31} When evaluating the weight of the evidence, we review whether the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other indicated clearly that the party having the burden of proof was entitled to a verdict in its favor, if, on weighing the evidence in their minds, the greater amount of credible evidence sustained the issue which is to be established before them. “Weight is not a question of mathematics but depends on its effect in inducing belief.” Thompkins at 387. Whereas sufficiency relates to the evidence‘s adequacy, weight of the evidence relates the evidence‘s persuasiveness. Id. The reviewing court “weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the [factfinder] clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs
{¶32} The trier of fact is the sole judge of the weight of the evidence and the credibility of the witnesses. State v. Landingham, 11th Dist. Lake No. 2020-L-103, 2021-Ohio-4258, ¶ 22, quoting State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964). The trier of fact may believe or disbelieve any witness in whole or in part, considering the demeanor of the witness and the manner in which a witness testifies, the interest, if any, of the outcome of the case and the connection with the prosecution or the defendant. Id., quoting Antill at 67. This court, engaging in the limited weighing of the evidence introduced at trial, is deferential to the weight and factual findings made by the factfinder. State v. Brown, 11th Dist. Trumbull No. 2002-T-0077, 2003-Ohio-7183, ¶ 52, citing Thompkins at 390 and State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph two of the syllabus.
{¶33} A finding that a judgment is supported by the manifest weight of the evidence necessarily means the judgment is supported by sufficient evidence. State v. Arcaro, 11th Dist. Ashtabula No. 2012-A-0028, 2013-Ohio-1842, ¶ 32.
{¶34} Appellant contends that his five convictions are against the manifest weight of the evidence because there was only circumstantial evidence that Appellant committed the crimes. Specifically, Appellant asserts that five other people resided in the home and had access to the drugs and digital scale. Thus, Appellant argues that it was never proven that it was him who possessed the drugs, digital scale, and plastic bags.
{¶35} We first address Appellant‘s contention that circumstantial evidence is insufficient for which to convict a defendant. Ohio courts have “long held that
{¶36} We next address whether each of Appellant‘s convictions were against the manifest weight of the evidence.
{¶37} A jury found Appellant guilty on 5 counts, all of which were for either possession of drugs or trafficking in drugs (methamphetamine and cocaine).
{¶38}
{¶39} The state‘s evidence to prove this count was the informant, Justin Gould. Mr. Gould had called Appellant to arrange a controlled buy (a telephone conversation which detectives monitored). Mr. Gould described Appellant, and detectives identified him as entering and leaving Mr. Gould‘s residence. After Appellant left the residence, Mr. Gould provided the detectives with the drugs he had bought from Appellant.
{¶40} Weighing the evidence and all reasonable inferences, the jury did not clearly lose its way in finding that Appellant was guilty of violating
{¶41}
{¶42} It was not against the manifest weight of the evidence for the jury to find that Appellant had committed trafficking in violation of
{¶43} Thus, the jury did not clearly lose its way in finding that Appellant committed trafficking in violation of
{¶44}
{¶45}
{¶46} In this case, the state‘s evidence demonstrated more than “mere access” to the substance through occupation of the premises. The detectives found Appellant 15-
{¶47} Weighing the evidence and all reasonable inferences, the jury did not clearly lose its way in finding that Appellant was guilty of committing
{¶48} Appellant‘s second assignment of error is without merit.
{¶49} Third assignment of error: “The trial court abused its discretion in granting the government‘s motion in limine.”
{¶50} We will not disturb a trial court‘s ruling on a motion in limine absent an abuse of discretion. Brannon v. Austinburg Rehab. & Nursing Ctr., 190 Ohio App.3d 662, 2010-Ohio-5396, 943 N.E.2d 1062, ¶ 18 (11th Dist.). An abuse of discretion is a term of art reflecting a court‘s exercise of judgment that fails to comport with the record or logic. Walters v. Goddard, 11th Dist. Trumbull, 2018-Ohio-5184, 127 N.E.3d 322, ¶ 11. An abuse of discretion is the trial court‘s “failure to exercise sound, reasonable, and legal decision-making.” State v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, 2010 WL 1731784, ¶ 62, quoting Black‘s Law Dictionary 11 (8th Ed.Rev.2004).
{¶51} A motion in limine is a “written motion which is usually made before or after the beginning of a jury trial for a protective order against prejudicial questions and statements * * * to avoid injection into trial of matters which are irrelevant, inadmissible and prejudicial.” State v. Grubb, 28 Ohio St.3d 199, 200-01, 503 N.E.2d 142 (1986). The power to grant a motion in limine is not conferred by rule or statute but instead lies within the inherent power and discretion of a trial court to control its proceedings. Id. at 201.
{¶53} Under this assignment, Appellant argues that the trial court erred in granting the state‘s motion in limine to prevent the defense from introducing evidence of Joseph Gossett‘s prior convictions.
{¶54} At trial, the state argued that the convictions were inadmissible character evidence, that his last conviction was 20 years before the instant trial, and that Mr. Gossett was not testifying. The defense argued that the prior convictions were not to attack Mr. Gossett‘s credibility, but to establish a defense that someone else could have possessed the drugs.
{¶55}
{¶57} At trial, defense counsel argued that Mr. Gossett‘s drug possession conviction from 20 years prior was admissible as a defense to prove that someone else could have possessed the drugs in the residence. In other words, this is evidence of Mr. Gossett‘s criminal history to prove that on this occasion he acted in conformity with that character. This is precluded by
{¶58} The trial court did not abuse its discretion in granting the state’ motion in limine.
{¶60} This argument fails for, at least, four reasons. First, Mr. Gossett did not testify at trial. Second, Mr. Gossett did not provide deposition testimony, or any other testimony against Appellant. Third, Appellant had no right to impeach Mr. Gossett through cross-examining the detectives. Fourth, the Confrontation Clause only applies to testimonial statements. Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
{¶61} Appellant‘s third assignment of error is without merit.
{¶62} Fourth assignment of error: “Niquan should have been sentenced to community control.”
{¶63} Appellant first asserts that the court erred by sentencing him without a pre-sentence investigation, and that if one had been provided, he could have been sentenced to community control.
{¶64} ”
{¶66} Appellant next contends that the court failed to overcome the presumption of community control for fourth and fifth degree felonies. As noted in ¶ 64 of this opinion, a court may not consider community control without a pre-sentence investigation. Id. Thus, the sentencing court here was not permitted to consider community control.
{¶67} Appellant also argues that consecutive sentences were not clearly and convincingly supported by the record.
{¶68} Under
{¶69}
If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public, and if the court also finds any of the following:
(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.
{¶70} In making its findings for consecutive sentences, the sentencing court is required to engage in the analysis for consecutive sentencing and specify the statutory criteria warranting its decision. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at ¶ 26. While the sentencing court is not required to state exact reasons supporting its findings, the record must contain a clear basis upon which a reviewing court can determine that the sentencing court‘s findings for imposing consecutive sentences are supported by the record. Id. at ¶ 27-28.
{¶71} The sentencing court made the following findings:
I do find that the consecutive sentence as to Counts One and Two, I find that is necessary to protect the public from future crime or to punish the offender. I find that consecutive sentences are not disproportionate to the seriousness of Mr. Dunn‘s conduct and the danger that Mr. Dunn poses to the public. I also find that at least two of the multiple offenses were committed as part of one or more courses of conduct, and that the harm caused by these multiple offenses was so great or unusual that no single prison term for any of these offenses committed as part of this course of conduct adequately reflects the seriousness of Mr. Dunn‘s conduct. I also do find that Mr. Dunn has a criminal history, and that consecutive sentences are necessary to protect the public from future crime.
{¶72} We cannot clearly and convincingly find that the record does not support the sentencing court‘s findings. From the record, we can discern that Appellant did “have a record, and there are a number of offenses in multiple states” and that he “continued to commit crimes after these.” The need to punish the offender, the seriousness of the crimes, the danger he poses to the public are clear by the crimes themselves: 5 counts
{¶73} Pursuant to
{¶74} Appellant‘s last argument under this assignment of error is that the sentencing court failed to ascertain whether the total aggregate sentence (36 months imprisonment) is proportional to his crimes.
{¶75} In State v. Gwynne, Slip Opinion No. 2022-Ohio-4607, the Ohio Supreme Court noted that a trial court‘s consecutive sentence findings “are not simply threshold findings that, once made, permit any amount of consecutively stacked individual sentences” or “consecutive sentence stacking.” Id. at ¶ 1, 13. “Rather, these findings must be made in consideration of the aggregate term to be imposed.” Id. at ¶ 1. That is to say, when a trial court “makes the statutory findings under
{¶76} However, there is no Ohio law, statutory or otherwise, that requires a sentencing court to state on the record that it “considered” the aggregate sentence. There is nothing we can discern from this record demonstrating that a 36-month prison sentence is disproportional to Appellant‘s crimes, or that the sentencing court did not consider the aggregate sentence.
{¶77} Appellant‘s fourth assignment of error is without merit.
{¶78} The judgment of the Geauga County Court of Common Pleas is affirmed in part, reversed in part, and remanded for resentencing. On remand, the court shall withdraw the enhancement on count 2, and modify count 2 to a fourth-degree felony. Appellant shall be resentenced on the merged counts 2 and 3 only.
MATT LYNCH, J., concurs,
MARY JANE TRAPP, J., concurs in part and dissents in part with a Dissenting Opinion.
MARY JANE TRAPP, J., concurs in part and dissents in part with a Dissenting Opinion.
{¶79} I concur with the majority‘s disposition of all the assignments of error save the first because I find, as the jury did, that Mr. Dunn engaged in trafficking in the vicinity of a child as alleged in the second count of the indictment. Thus, I would affirm the judgment of the trial court.
{¶81} The danger to the child remained the same even if Mr. Dunn was not caught in the act of preparing the drugs for distribution within the house where the child was living. If there was sufficient evidence to support a conviction for preparing to distribute a controlled substance for sale, the evidence that a child lived in the house where the preparation occurred is sufficient to support the determination this act was done in the vicinity of the child. Our precedent in State v. Reuschling, 11th Dist. Ashtabula No. 2007-A-0006, 2007-Ohio-6726, supports this conclusion.
{¶82} As Justice Pfeifer observed, “[t]he distance requirement for an act to be committed within ‘the vicinity of a juvenile’ is only 100 feet or ‘within view of the juvenile.’ Drug trafficking is a dangerous activity. Beyond the psychic danger of seeing drugs being sold, there is a very real physical danger surrounding a drug transaction, even for nonparticipants. Thus, a child, whether in view or not, could become a part of the collateral damage of a failed transaction. The threat to a child is real and imminent.” State v. Lozier, 101 Ohio St.3d 161, 2004-Ohio-732, 803 N.E.2d 770, ¶ 42.