STATE OF OHIO v. JAMMOT L. EDWARDS
C.A. No. 25679
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
March 7, 2012
[Cite as State v. Edwards, 2012-Ohio-901.]
CARR, Judge.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 10 03 0820
Dated: March 7, 2012
CARR, Judge.
{1} Appellant, Jammot Edwards, appeals his conviction and sentence in the Summit County Court of Common Pleas. This Court affirms, in part, and reverses, in part.
I.
{2} Edwards was indicted on nine counts and various specifications. At the conclusion of trial, the jury found him guilty of one count each of receiving stolen property, possession of marijuana, illegal use or possession of drug paraphernalia, and possessing criminal tools. The trial court imposed a term of incarceration but suspended it on the condition that Edwards successfully complete two years of community control. In addition, the trial court imposed nine enumerated sanctions, including orders that Edwards repay the county for attorney fees incurred in the case, with such to be taxed as court costs; and that Edwards pay the attorney fees and costs of the prosecution. Edwards appealed, raising seven assignments of error for review. This Court consolidates some assignments of error to facilitate review.
ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR WHEN IT SENTENCED MR. EDWARDS FOR POSSESSING CRIMINAL TOOLS AND RECEIVING STOLEN PROPERTY AS THEY WERE ALLIED OFFENSES OF SIMILAR IMPORT SUBJECT TO MERGER UNDER
ASSIGNMENT OF ERROR II
MR. EDWARDS WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL WHEN HIS TRIAL COUNSEL FAILED TO ARGUE THAT POSSESSING CRIMINAL TOOLS AND RECEIVING STOLEN PROPERTY WERE ALLIED OFFENSES OF SIMILAR IMPORT SUBJECT TO MERGER UNDER
{3} In his first assignment of error, Edwards argues that the trial court erred when it sentenced him on both possessing criminal tools and receiving stolen property because the two crimes are allied offenses of similar import. In his second assignment of error, he argues that his trial counsel was ineffective for failing to argue that the two crimes are allied offenses of similar import which must be merged for purposes of sentencing.
{4} After Edwards was sentenced in this case, the Ohio Supreme Court announced a new test for determining whether multiple offenses constitute allied offenses for sentencing purposes. State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, syllabus. The Johnson court held that “[w]hen determining whether two offenses are allied offenses of similar import subject to merger under
ASSIGNMENT OF ERROR III
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT OVERRULED MR. EDWARDS’
{5} Edwards argues that the trial court erred by denying his motion for acquittal pursuant to
{6}
The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state‘s case.
An appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.
{7} The test for sufficiency requires a determination of whether the State has met its burden of production at trial. State v. Walker, 9th Dist. No. 20559, 2001 WL 1581570 (Dec. 12, 2001); see, also, State v. Thompkins, 78 Ohio St.3d 380, 390 (1997) (Cook, J., concurring).
{8} Edwards was convicted of illegal use or possession of drug paraphernalia in violation of
{9}
A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist.
{10} “Possess” means “having control over a thing or substance, but may not be inferred solely from mere access to the thing or substance through ownership or occupation of the premises upon which the thing or substance is found.”
{11} At trial, the State presented the testimony of five law enforcement officers who testified that Edwards’ home had been under surveillance for a period of time after the police received several complaints alleging illegal drug activity at the home. The officers testified that they each participated on March 22, 2010, in a search of Edwards’ residence which he shared with his girlfriend and her two minor children.
{12} Detective Alan Jones of the Akron Police Department‘s (“APD“) Street Narcotics Uniform Detail testified that digital scales and 230 grams of marijuana, including 120 grams of blunts, 70 grams of smoked blunts, and 40 grams of loose marijuana, were found at the residence. Sergeant Jason Malick of the APD Narcotics Unit testified that two bags of loose marijuana were found in a Crown Royal bag under a child‘s sled in the back yard within one foot of the residence. He testified that the bag was dry on a day when the ground was soggy, indicating it had very recently been hidden.
{13} Detective Michael Zimcosky of the APD testified that he found mail addressed to Edwards at the residence, thereby establishing Edwards’ possessory interest in the property. He
{14} Officer Chris Carney of APD SNUD testified that he entered Edwards’ residence with a canine (Sampson) certified to detect narcotic odors. The officer testified that Sampson alerted during the search, indicating that he smelled narcotics inside and outside the residence. Officer Carney testified that a couple of containers of marijuana were found in the living room, where other items such as scales and a marijuana pipe were found.
{15} Reviewing the evidence in a light most favorable to the State, this Court concludes that any rational trier of fact could have found the essential elements of the charge of illegal use or possession of drug paraphernalia were proved beyond a reasonable doubt. See Jenks, 61 Ohio St.3d at paragraph two of the syllabus. The State presented evidence that there was marijuana at Edwards’ residence. Moreover, Edwards does not challenge his conviction for possession of marijuana. The State presented evidence that digital scales were found in the living room, as opposed to the kitchen where they might reasonably have been used for cooking purposes. Detective Zimcosky testified that digital scales are routinely used by drug users to weigh controlled substances. Although the State presented evidence that marijuana blunts, a type of cigarette, were found, there was also evidence that a quantity of loose marijuana was
ASSIGNMENT OF ERROR IV
MR. EDWARDS’ CONVICTION FOR ILLEGAL USE OR POSSESSION OF DRUG PARAPHERNALIA WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{16} Edwards argues that his conviction for illegal use or possession of drug paraphernalia is against the weight of the evidence. This Court disagrees.
In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.
State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986).
Weight of the evidence concerns the tendency of a greater amount of credible evidence to support one side of the issue more than the other. Thompkins, 78 Ohio St.3d at 387. Further when reversing a conviction on the basis that it was against the manifest weight of the evidence, an appellate court sits as a “thirteenth juror,” and disagrees with the factfinder‘s resolution of the conflicting testimony. Id.
State v. Tucker, 9th Dist. No. 06CA0035-M, 2006-Ohio-6914, at ¶ 5.
{17} This discretionary power should be exercised only in exceptional cases where the evidence presented weighs heavily in favor of the defendant and against conviction. Thompkins, 78 Ohio St.3d at 387.
{18} Edwards presented the testimony of his live-in girlfriend and he testified in his own defense.
{19} Dorinda Sutton testified that she and Edwards were living together at their home which the police searched on March 22, 2010. She admitted that both she and Edwards smoke
{20} Edwards testified in his own defense. He, too, admitted that he smokes marijuana, although he denied selling illegal drugs. Edwards admitted using the smaller scale found in his home to weigh his “weed” to make sure he received the full amount for which he paid. He further admitted that he used the bong and pipe found during the search to smoke marijuana.
{21} A review of the record indicates that this is not the exceptional case, where the evidence weighs heavily in favor of Edwards. A thorough review of the record compels this Court to find no indication that the trial court lost its way and committed a manifest miscarriage of justice in convicting Edwards of illegal use or possession of drug paraphernalia.
{22} The weight of the evidence supports the conclusion that Edwards used one of the scales found in his home for weighing or measuring a controlled substance, specifically marijuana, and that he used the bong and pipe found in his home for smoking marijuana. In fact, both Edwards and his live-in girlfriend admitted that they used the scale to weigh their marijuana and the bong and pipe to smoke it. By his girlfriend‘s testimony and his own admission, the weight of the evidence demonstrates that Edwards knowingly used and possessed with purpose to use a scale, bong, and pipe which all constituted drug paraphernalia. Accordingly, Edwards’
ASSIGNMENT OF ERROR V
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN ASSESSING COURT COSTS AGAINST DEFENDANT WITHOUT COMPLYING WITH
ASSIGNMENT OF ERROR VI
DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL WHEN HIS TRIAL COUNSEL FAILED TO ARGUE THAT THE TRIAL COURT‘S IMPOSITION OF COURT COSTS UNDER
{23} In his fifth assignment of error, Edwards argues that the trial court committed plain error when it failed to notify him pursuant to
{24} As a preliminary matter, we note that this issue is ripe for review notwithstanding the fact that the record does not demonstrate that Edwards has failed to pay the imposed costs or that the trial court has ordered him to perform community service based on such a failure. State v. Smith, Slip Opinion No. 2012-Ohio-781, syllabus (holding “A sentencing court‘s failure to inform an offender, as required by
{25}
If the defendant fails to pay that judgment or fails to timely make payments towards that judgment under a payment schedule approved by the court, the court may order the defendant to perform community service in an amount of not more than forty hours per month until the judgment is paid or until the court is satisfied that the defendant is in compliance with the approved payment schedule.
If the court orders the defendant to perform the community service, the defendant will receive credit upon the judgment at the specified hourly credit rate per hour of community service performed, and each hour of community service performed will reduce the judgment by that amount.
{26} At the sentencing hearing, the trial court ordered that Edwards pay the costs of the proceedings as part of his sentences for possession of marijuana and possession of criminal tools. It did not, however, notify him regarding any of the provisions in
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN ASSESSING ATTORNEY FEES AGAINST DEFENDANT WITHOUT COMPLYING WITH
{27} Edwards argues that the trial court erred when it assessed attorney fees against him without complying with
{28}
{29} At the sentencing hearing, the trial court did not mention the issue of the payment of attorney fees. In the judgment entry of conviction and sentence, the trial court ordered the repayment of attorney fees and ordered that they be taxed as court costs.
{30} This Court has held that “the court must make a determination that the defendant is financially capable of paying for his appointed counsel before assessing court-appointed attorney fees.” State v. Malone, 9th Dist. No. 09CA009732, 2010-Ohio-5658, at ¶ 11, quoting State v. Warner, 9th Dist. No. 96CA006534, 2001 WL 1155698 (Sept. 21, 2001).
{31} The trial court failed to make an ability-to-pay finding either on the record at the sentencing hearing or in the judgment entry of conviction and sentence. The State argues that the trial court‘s order that monies confiscated from Edwards and held by the State as evidence be released to the defendant implicitly constituted a finding that Edwards had the ability to pay his attorney fees. The State cites no authority for this proposition, and this Court concludes that the trial court‘s order releasing Edwards’ property does not constitute the requisite ability-to-pay
III.
{32} Edwards’ first assignment of error is sustained and we decline to address his second assignment of error. The third and fourth assignments of error are overruled. The fifth and seventh assignments of error are sustained and we decline to address the sixth assignment of error. The judgment of the Summit County Court of Common Pleas is affirmed, in part, reversed, in part, and the cause remanded to the trial court for consideration of whether Edwards’ convictions should merge for purposes of sentencing under Johnson; for proper imposition of court costs in accordance with the requirements set forth in
There were reasonable grounds for this appeal.
Judgment affirmed, in part, reversed, in part, and cause remanded.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed equally to both parties.
DONNA J. CARR
FOR THE COURT
BELFANCE, P. J.
MOORE, J.
CONCUR.
APPEARANCES:
NEIL P. AGARWAL, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.