Case Information
*1
[Cite as
State v. Frye
,
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-17-30 v.
MARLON D. FRYE, O P I N I O N DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR2016 0433 Judgment Affirmed
Date of Decision: March 12, 2018 APPEARANCES:
Kenneth J. Rexford for Appellant
Jana E. Emerick for Appellee
PRESTON, J.
{¶1} Defendant-appellant, Marlon D. Frye (“Frye”), appeals the July 11, 2017 judgment entry of sentence of the Allen County Court of Common Pleas. For the reasons that follow, we affirm.
{¶2} On December 15, 2016, the Allen County Grand Jury indicted Frye on three counts, including: Count One of having weapons while under disability in violation of R.C. 2923.13(A)(3), (B), a third-degree felony, Count Two of tampering with evidence in violation of R.C. 2921.12(A)(1), (B), a third-degree felony, and Count Three of aggravated possession of drugs in violation of R.C. 2925.11(A), (C)(1)(a), a fifth-degree felony. (Doc. No. 4). The indictment contains a firearm specification under R.C. 2941.141(A) and a forfeiture specification under R.C. 2941.1417(A) as to Count One. ( Id. ). The forfeiture specification identifies “a .22 Caliber Derringer” as property subject to forfeiture. ( Id. ). On December 23, 2016, Frye appeared for arraignment and entered
pleas of not guilty. (Doc. No. 13). On December 28, 2016, Frye filed a motion to suppress evidence “of
the unwarranted searches of Mr. Frye’s trash and invasion of his privacy.” (Doc. No. 14). Specifically, Frye argued “that the trash pulls were done without warrant and over an unreasonable number of pulls.” ( ). The State filed its response to Frye’s motion to suppress evidence on January 24, 2017. (Doc. No. 21). After a hearing on March 6, 2017, the trial court denied Frye’s motion to suppress evidence. (Doc. No. 30).
{¶5} Frye filed a motion to dismiss Count Three of the indictment on January 17, 2017. (Doc. No. 18). In his motion, Frye argued that “ADB-Fubinanca is not yet a Schedule I controlled substance, or at least was not one as of the date of the act leading to Count [Three] in the Indictment.” ( ). Frye filed a supplement to his motion to dismiss Count Three of the indictment on February 7, 2017. (Doc. No. 27). The trial court denied Frye’s motion to dismiss Count Three of the indictment on March 7, 2017. (Doc. No. 31). On April 21, 2017, Frye filed a motion in limine requesting that
Cornelius Patterson (“Patterson”) and Timothy Frye (“Timothy”) be granted immunity in exchange for their testimony. (Doc. No. 36). After a hearing on May 16, 2017, the trial court denied Frye’s request to grant Patterson and Timothy immunity in exchange for their testimony on May 17, 2017. (Doc. No. 57). On May 23-25, a jury trial was held. (May 23-25, 2017 Tr., Vol. I, at 1); (May 23-25, 2017 Tr., Vol. IV, at 642). On May 25, 2017, the jury found Frye guilty as to the counts and specifications in the indictment. (Doc. Nos. 62, 63, 64); (May 23-25, 2017 Tr., Vol. IV, at 639-640). The trial court filed its judgment entry of conviction on May 26, 2017. (Doc. No. 65).
{¶8} On May 31, 2017, Frye filed a motion for a new trial under Crim.R. 33(A)(1) and (5) as to Count Three of the indictment arguing that the trial court “erred by adopting (over objection) an incorrect definition of ‘constructive possession’ into the Jury Instructions.” (Doc. No. 69). On June 7, 2017, the trial court denied Frye’s motion for a new trial. (Doc. No. 70). On July 10, 2017, the trial court sentenced Frye to 36 months in prison
on Count One, one year in prison on the firearm specification, 9 months in prison on Count Two, and 9 months in prison on Count Three, and ordered that Frye serve the terms consecutively for an aggregate sentence of 54 months in prison. (Doc. No. 73). The trial court ordered forfeited the .22 Derringer. ( Id. ). The trial court filed its judgment entry of sentence on July 11, 2017. ( ). Frye filed his notice of appeal on July 24, 2017. (Doc. No. 76). He
raises eight assignments of error for our review. To facilitate our discussion, we will first address Frye’s sixth and seventh assignments of error together, followed by his first, second, third, fourth, fifth, and eighth assignments of error.
Assignment of Error No. VI
The convictions for all three counts were against the manifest weight of the evidence.
Assignment of Error No. VII
The conviction for Possession of ADB-Fubinaca was not supported by sufficient evidence.
{¶11} In his seventh assignment of error, Frye argues that his possession-of- drugs conviction is based on insufficient evidence. In particular, he argues that the State presented insufficient evidence that he had constructive possession of the ADB-Fubinaca. In his sixth assignment of error, Frye argues that his convictions are against the manifest weight of the evidence. Regarding his possession-of-drugs conviction, he argues that the weight of the evidence shows that he did not knowingly possess a controlled substance. Manifest “weight of the evidence and sufficiency of the evidence are
clearly different legal concepts.” State v. Thompkins , 78 Ohio St.3d 380, 389 (1997). As such, we address each legal concept individually. “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.”
State v. Jenks
, 61 Ohio
St.3d 259 (1981), paragraph two of the syllabus,
superseded by state constitutional
amendment on other grounds
,
State v. Smith
,
manifest weight of the evidence, a reviewing court must examine 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.’”
Thompkins
at 387,
quoting
State v. Martin
, 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing
court must, however, allow the trier of fact appropriate discretion on matters relating
to the weight of the evidence and the credibility of the witnesses.
State v. DeHass
,
10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight standard,
“[o]nly in exceptional cases, where the evidence ‘weighs heavily against the
conviction,’ should an appellate court overturn the trial court’s judgment.”
State v.
Haller
, 3d Dist. Allen No. 1-11-34,
{¶15} At trial, the State offered the testimony of Investigator Jesse Harrod (“Investigator Harrod”) of the Lima Police Department, assigned to the Lima/Allen County Interdiction Task Force (“Task Force”), who testified that the Task Force began investigating Frye in June 2016 after receiving a tip that an individual “that lived at 1109 St. Johns Avenue in Lima [] was dealing in large amounts of narcotics, specifically crack cocaine.” (May 23-25, 2017 Tr., Vol. II, at 230-231, 233). According to Investigator Harrod, through his five-month investigation, he learned that Frye resided at 1109 St. Johns Avenue. ( Id. at 234-235). Investigator Harrod testified that the Task Force conducted “a series
of trash pulls from” 1109 St. Johns Avenue, which occurred “on Friday mornings, early Friday mornings—August 19th of 2016, October 28th of 2016 and November 4th of 2016.” ( Id. at 236). On November 4, 2016, Investigator Harrod prepared a search-warrant affidavit referencing the evidence discovered from the trash pulls as well as additional information he gathered over the course of his investigation. ( Id. ). After obtaining the search warrant, Investigator Harrod “met with other Investigators with the Allen County Sheriff’s Office S.W.A.T. team [(“SWAT team”)] to brief them on the location” because the SWAT team “was going to be securing the residence for us before the Investigators searched it.” ( at 244). Once law enforcement arrived at the residence and began to secure it, Investigator Harrod heard Investigator Trent Kunkleman (“Investigator Kunkleman”) of the Lima Police Department, assigned to the West Central Ohio Crime Task Force, “announce that there was a subject looking out of an upstairs bedroom window.” ( Id. at 246-247). Within seconds of Investigator Kunkleman’s announcement, the SWAT team entered the residence. ( Id. at 247). According to Investigator Harrod, based on that timing, the person looking out the bedroom window could not “have made it downstairs and then back upstairs before [the SWAT team] went in the front door.” ( Id. ). After the residence was secure, law enforcement discovered two individuals in the residence—Frye and Patterson. ( Id. at 247-248). “Frye was located in the downstairs bathroom, the first floor bathroom, and Mr. Patterson was located in an upstairs bedroom on the second floor.” ( Id. at 248). Investigator Harrod identified State’s Exhibits 3-16 as photographs
taken of the residence as it appeared on November 4, 2016. ( at 250). ( See State’s Exs. 3-16). Investigator Harrod described the items found by law enforcement:
In the kitchen area there were multiple different areas where there were rubber gloves similar to the ones we found in the trash. There was a microwave plate that was located that contained a white crusty substance[, which tested positive for cocaine.] There was a small amount of marijuana, along with different drug paraphernalia, a grinder, a marijuana pipe, inside * * * the upper right hand cupboard in the kitchen. We located a small brown leather holster * * * for a gun.
* * *
There was not a gun in it at the time it was located. Also located in that same cupboard was a plastic container containing what appeared to be a green leafy substance. However, it did not appear to be, through [Investigator Harrod’s] training and experience, it did not appear to be marijuana. It appeared to [Investigator Harrod] to be K2, or a synthetic marijuana.
(May 23-25, 2017 Tr., Vol. II, at 256-257). Investigator Harrod identified State’s Exhibit 17 as a photograph depicting the cupboard in which the narcotics paraphernalia, holster, and “green leafy substance” were found. ( Id. at 257-258). He identified State’s Exhibit 18 as a photograph depicting “the green leafy substance that did not have the same odor as marijuana” yet “appeared to have the same characteristics of [marijuana] just by looking at it,” which was discovered in the cupboard. ( at 258). ( See also State’s Ex. 20). He identified State’s Exhibit 19 as a photograph depicting the holster. (May 23-25, 2017 Tr., Vol. II, at 259). ( See also State’s Ex. 21). Investigator Harrod further testified that law enforcement discovered
“a firearm * * * submerged in water inside the toilet bowl” while searching the bathroom. (May 23-25, 2017 Tr., Vol. II, at 261). ( See State’s Exs. 22-27). According to Investigator Harrod, the firearm was loaded and the hammer was cocked back. (May 23-25, 2017 Tr., Vol. II, at 263-265). Investigator Harrod testified that he interviewed Patterson on
November 4, 2016 and that Patterson informed him that “[h]e was on vacation from Mississippi,” that “[h]e had been [in Lima] for approximately two to three weeks,” and that “[h]e was a longtime friend of [Frye].” ( Id. at 270). He testified that his investigation of Patterson did not reveal any “legal reason” prohibiting Patterson from having a firearm. ( Id. at 279). Investigator Harrod testified that, just prior to the time the SWAT team entered the residence, Patterson “had been in the bathroom brushing his teeth prior to going upstairs to the bedroom, the second floor bedroom. He was opening the blinds when he observed the Officers approaching the house.” ( Id. ). Stated differently, Patterson was not in the bathroom when the SWAT team entered the residence. ( Id. ). On cross-examination, Investigator Harrod described the synthetic
marijuana. ( See id. at 286-291). He also testified that law enforcement discovered marijuana in a mason jar while searching the residence; however, he testified that law enforcement “did not charge anybody with it” because “[i]t was at a minor misdemeanor level.” ( at 291-292). Investigator Harrod testified that he learned that Patterson was arrested
for “felony drug trafficking” in 2001 in Mississippi; however, Investigator Harrod did not know whether that arrest resulted in a conviction. ( Id. at 298). Investigator Harrod agreed that a felony-drug-trafficking conviction “would typically create a weapons disability.” ( Id. ). He testified that the residence contains one bathroom, which is located
in the “back” of the residence next to the stairway. ( Id. at 308, 310). When the SWAT team entered the residence, Patterson was found on the second floor of the residence and Frye was found on the first floor of the residence. ( Id. at 309). According to Investigator Harrod, Patterson told him that he was the person looking out the second-floor-bedroom window. ( Id. at 309-310). Specifically, Patterson told Investigator Harrod that, prior to law enforcement’s entry into the residence, “[h]e went to the bathroom and brushed his teeth” and then “went back upstairs he said he was opening up the blinds and when he looked out he saw the Officers approaching.” ( Id. at 310). More specifically, Patterson informed Investigator Harrod that he was on the porch smoking a cigarette approximately five minutes before law enforcement entered the residence. ( Id. at 313). After Patterson finished smoking his cigarette, he returned to the residence and went to the bathroom—the only bathroom in the residence and the bathroom in which the firearm was found— to brush his teeth. ( at 314-315). After brushing his teeth, Patterson then went upstairs to look out the window “to look at the neighbors.” ( Id. at 315-316). After Patterson saw law enforcement approaching the residence, Frye went downstairs to the kitchen “right before the breach of the house.” ( Id. at 313, 316). To get to the kitchen from the stairway, Frye “had to walk from the stairs, past the bathroom, and to the kitchen.” ( Id. at 316-317).
{¶24} Investigator Harrod testified that law enforcement did not search the firearm, the plastic container containing the synthetic marijuana, or the firearm holster for fingerprints or DNA evidence. ( Id. at 317-319).
{¶25} On re-direct examination, Investigator Harrod testified that Patterson’s “lengthy” criminal record contains misdemeanor and “traffic convictions.” ( Id. at 320). He testified he did not see anyone outside of the residence when law enforcement “set up a perimeter for execution of the search warrant.” ( Id. at 321). On re-cross examination, he clarified that, although it is unclear
because it contains offenses in other states, Patterson’s criminal history also includes arrests for offenses that “appear” to be felonies. ( Id. at 324-325). As its next witness, the State presented the testimony of Investigator Kunkleman, who testified that he assisted with the November 4, 2016 search- warrant execution. ( at 326-327). He testified that he was “assigned to the perimeter” at the time law enforcement entered the residence. ( Id. at 328). He did not observe anyone outside when he arrived at the residence. ( Id. ). While establishing a perimeter, Investigator Kunkleman
watched as the Sheriff’s Department’s S.W.A.T. team began making their way to the front door of the house, which faces to the west. As they were doing that [he] looked up and at the second story window furthest to the north * * * there was somebody that peeked out the window. [He] could see * * * the blinds flip down and then flip back up.
( Id. at 329-330). Investigator Kunkleman announced his observation. ( Id. at 330). “Seconds” later, law enforcement entered the residence. ( Id. ). He testified that it was not “possible [] that the person who was peeking out the blinds could have made it from that room, downstairs, and then back upstairs prior to the S.W.A.T. team making entrance.” ( Id. at 331). He testified that Patterson was found in the bedroom in which Investigator Kunkleman saw the person peeking out of the window. ( Id. at 331-332). Investigator Kunkleman testified that he spoke with Frye after the
search-warrant execution and testified that Frye “stated that he only smoked Loud,” which is a type of marijuana. ( Id. at 332-333). According to Investigator Kunkleman, Frye admitted that “that [law enforcement] probably found [Frye’s Loud] in the house.” ( at 332).
{¶29} On cross-examination, Investigator Kunkleman confirmed that it was “under a minute [for him] to go from [his] car, to observing this person peeking, to the house being breached and entry made into the house.” ( at 352-353). Next, Lieutenant Gary Hook (“Lieutenant Hook”) of the Allen County Sheriff’s Office testified that he assisted with the November 4, 2016 search-warrant execution as part of the SWAT team. ( Id. at 359-361). He indicated that his “assignment th[at] particular day was the point position, or the number one position in the line,” meaning that he was the “person [who] led the team into the residence.” ( Id. at 361-362). Lieutenant Hook described the search-warrant execution:
Once we arrived it was a no-knock search warrant, which means we basically walk up to the residence and we breach the door. We announce as we enter. We continue with the search. So, from the time our team left the van to the approach of the door was roughly anywhere between fifteen and thirty seconds.
( Id. at 363). He described what he observed when law enforcement entered the residence:
Once the door was breached I immediately observed * * * an entry room and * * * a further room. I observed a black male, wearing no shirt, standing in the doorway. At that time I yelled “Sheriff’s Office – S.W.A.T., search warrant, get on the ground”. The subject darted off to what would have been my right. So, my job at that point would be to close the distance so then they could secure that subject. I made my way through that first entryway and what I believe was a kitchen and turned to the right, the direction he was running, and I saw a door moving shut. I approached the door at the same time another S.W.A.T. operator approached the same door and he kicked it at about the same time that I arrived at it. Once the door came open I observed [Frye], who was to my left, and I ordered him down to the ground. He laid down to my right. So, I basically stood guard over [Frye] until I had another guy come up with a set of handcuffs. He secured [Frye]. When he did, I told him, “Make sure you check that area to the left carefully,” because that’s the area that I last saw him in. So, from that point he was secured. I left to perform a secondary search with another team member. When I returned to [Frye], who was still there, they were looking to the toilet and I seen [sic] a small handgun laying in the bottom of the actual toilet bowl.
( at 363-364).
{¶32} Lieutenant Hook identified State’s Exhibits 3, 4, 5, 6, 7, 9, and 30 as photographs of the residence as it appeared on November 4, 2016. ( Id. at 364-368). He testified how those photographs illustrate his description of events. ( See id. ).
{¶33} On cross-examination, Lieutenant Hook clarified that, when he entered the residence, he “saw an individual go running from the kitchen” which he believed was Frye. ( Id. at 375). However, because of the way that the residence is constructed, Lieutenant Hook “lost sight” of that individual running from the kitchen. ( Id. at 375-376). ( See also 369-375); (State’s Exs. 3, 4, 5, 6, 7, 9, 30). Lieutenant Hook testified that he did not see Frye with a firearm or see him reach into any cabinets. (May 23-25, 2017 Tr., Vol. II, at 376).
{¶34} On re-direct examination, Lieutenant Hook testified that he lost sight of Frye for “less than ten seconds” after he saw him run from the kitchen. ( Id. at 377). He testified that he did not see anyone else in the bathroom. ( Id. at 377-378). Thereafter, the State moved to admit Exhibits 1-28, which were admitted without objection, and rested. ( Id. at 446, 460). Next, Frye made a Crim.R. 29(A) motion, which the trial court denied. ( Id. at 461-462). Frye testified in his defense. ( Id. at 463). Frye testified that he grew
up in Mississippi and that he has known Patterson since they were six or seven years old. ( ). Patterson was at Frye’s residence on November 4, 2016. ( Id. at 464). Frye testified that he was “[a]sleep upstairs” “[i]mmediately prior to law enforcement coming into the house.” ( Id. ). According to Frye, Patterson “was downstairs [because he] had a habit of every single morning [of getting] up about seven/seven-thirty in the morning cooking breakfast.” ( at 464-465). Frye testified that he was still asleep on November 4, 2016 when law enforcement entered his residence because he “came home probably like five-thirty” in the morning. ( Id. at 465). Frye described:
[I] heard [Patterson] from downstairs. * * * I heard him holler. He called my name. I jumped up. I immediately jumped up out of my sleep. When I jumped up he was like, “Marlon, Marlon, something’s going on. They’re out there.” That’s what he was saying. As he was running up the stairs I jumped up and run [sic] down the stairs. At this time I was hearing windows busting and people at the door I could hear from the outside because it was a very loud commotion and it was loud outside. The door – somebody was hitting the door, the front door. As I was running down the stairs he was coming up the stairs. So, we kind of like crossed each other. By the time I made it to the living room * * * before I could even get to the kitchen, I could see the door when it first comes open. * * * So, my first reaction was, “oh, something’s going on and I don’t want to get shot”. * * * My first move was to dive into the bathroom to get out of the line of fire. * * * So, I ran into the bathroom.
( Id. at 465-466).
{¶37} Frye testified that the gun found in the toilet is not his and he did not put it in the toilet. ( Id. at 467). Frye admitted that the marijuana discovered in the kitchen is his marijuana. ( Id. at 468). Frye also admitted that he saw another container containing “a green leafy substance” in his kitchen but denied that it belonged to him. ( Id. at 469-470). Frye testified that he thought the container was “[t]rash” or low-grade marijuana, which he does not use. ( Id. at 469). Frye opined that the ADB Fubinaca belonged to Patterson. ( Id. at 470).
{¶38} On cross-examination, Frye testified that Lieutenant Hook’s testimony that he discovered Frye by the toilet is “inaccurate.” ( Id. at 476-477). Thereafter, the defense rested. ( Id. at 481). The State offered the rebuttal testimony of Lieutenant Hook. ( Id. at 483). He testified that, when law enforcement entered the residence, “it was a one hit shot to the door” with “the ram device.” ( Id. at 485-486). Because he was the first in, Lieutenant Hook saw Frye standing “in the doorway” and “yelled, ‘Get on the ground. Search warrant. Get on the ground.’” ( Id. at 486-487). Despite Lieutenant Hook’s commands, Frye “disappear[ed] to the right.” ( at 487). Lieutenant Hook “went through [the kitchen] doorway and took a right and that’s where [Lieutenant Hook] saw the wood door close.” ( Id. at 488). Lieutenant Hook identified State’s Exhibit 9 as a photograph of the bathroom depicting the wood door that he saw close. ( Id. ). After another law-enforcement officer “kicks in” the bathroom door, Lieutenant Hook saw Frye “standing” near “the toilet and there was some clothes baskets or some clothes down here on the ground.” ( Id. at 491-495). Lieutenant Hook ordered Frye to the ground, which Frye complied. ( Id. at 495).
{¶41} On re-direct examination, Lieutenant Hook testified that “[i]t was a matter of seconds” for Lieutenant Hook to follow Frye to the bathroom when Frye did not comply with Lieutenant Hook’s initial order “to get on the ground.” ( Id. at 514).
{¶42} On re-cross examination, Lieutenant Hook testified that, when he saw Frye standing in the bathroom, Frye was not leaning over the toilet. ( Id. at 521). The State did not present any additional witnesses on rebuttal, and Frye renewed his Crim.R. 29(A) motion, which the trial court denied. ( at 522, 550). The matter was submitted to the jury, which found Frye guilty as to the counts and specification of the indictment. (May 23-25, 2017 Tr., Vol. IV, at 637, 639- 640). As an initial matter, we must address Frye’s argument that his having-
weapons-while-under-disability and tampering-with-evidence convictions are
against the manifest weight of the evidence. Although Frye asserts that he is
challenging the weight of the evidence supporting his convictions in the statement
of his sixth assignment of error, his argument pertains only to the sufficiency of the
evidence supporting those convictions. As such, we will limit our discussion to
addressing the sufficiency of the evidence supporting those convictions.
Accord
State v. Yoder
, 9th Dist. Wayne No. 15AP0017,
codified in R.C. 2923.13, which provides, in relevant part:
(A) Unless relieved from disability under operation of law or legal process, no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if any of the following apply: * * *
(3) The person is under indictment for or has been convicted of any felony offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse * * *.
R.C. 2923.13(A)(3). R.C. 2921.12 sets forth the offense of tampering with evidence and provides, in relevant part:
(B) No person, knowing that an official proceeding or investigation is in progress, or is about to be or likely to be instituted, shall do any of the following:
(1) Alter, destroy, conceal, or remove any record, document, or thing, with purpose to impair its value or availability as evidence in such proceeding or investigation[.]
R.C. 2921.12(A)(1). Frye does not dispute the evidence concerning the underlying
elements of his having-weapons-while-under-disability and tampering-with-
evidence convictions; rather, he disputes the issue of identity as to the conviction.
See State v. Missler
, 3d Dist. Hardin No. 6-14-06,
that a rational trier of fact could not have found that he put the gun in the toilet. He
specifically argues that his convictions are based on insufficient evidence because
“the entire case was circumstantial” since “[t]here was no observation of this alleged
act, and the State had no physical evidence.” (Appellant’s Brief at 31). However,
“‘direct or circumstantial evidence is sufficient to establish the identity of a
defendant as the person who committed a crime.’”
Missler
¶ 13, quoting
Collins
at
¶ 19, citing
Lawwill
at ¶ 11. “‘Circumstantial evidence’ is the ‘proof of facts by
direct evidence from which the trier of fact may infer or derive by reasoning or other
facts.’”
Lawwill
at ¶ 12, quoting
State v. Wells
, 12th Dist. Warren No. CA2006-02-
029,
rational trier of fact could have found that Frye was the person who put the gun in the toilet. In other words, the jury’s decision to find that Frye had a weapons disability and tampered with evidence is rational—that is, that Frye was the last person to be seen where the gun was found. The State presented evidence that Frye was found in the bathroom and was observed standing near the toilet. See State v. Davis , 9th Dist. Lorain No. 97CA006691, 1998 WL 887141, *4 (Dec. 16, 1998) (concluding that the State presented sufficient evidence that Davis “was the perpetrator of th[e] crime” because he “was the last person seen with” the victim). Indeed, Lieutenant Hook saw Frye run to the bathroom immediately after law enforcement entered the residence. Lieutenant Hook did not see anyone else in the bathroom. Furthermore, Patterson told Investigator Harrod that he was the person seen looking out the second-floor window when law enforcement was approaching the residence. Investigators Harrod and Kunkleman testified that it was not possible for someone to go from the second floor to the first floor and back to the second floor between the time Patterson was seen looking out the second-floor window and the time law enforcement entered the residence. Likewise, law enforcement found Patterson on the second floor. Based on that evidence, a rational trier of fact could have found
beyond a reasonable doubt that Frye was the person who put the gun in the toilet. That is, a rational trier of fact could have found that Frye had a weapon under disability and tampered with evidence. Therefore, Frye’s having-weapons-while- under-disability and tampering-with-evidence convictions are based on sufficient evidence. We also reject Frye’s argument that his possession-of-drugs
conviction is based on insufficient evidence. The criminal offense of possession of
drugs is codified in R.C. 2925.11, which provides, “No person shall knowingly
obtain, possess, or use a controlled substance or a controlled substance analog.”
R.C. 2925.11(A). “‘Possess’ or ‘possession’ 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.” R.C. 2925.01(K). “The issue of whether a person charged with drug
possession knowingly possessed a controlled substance ‘is to be determined from
all the attendant facts and circumstances available.’”
State v. Brooks
, 3d Dist.
Hancock No. 5-11-11,
Bustamante
, 3d Dist. Seneca Nos. 13-12-26 and 13-13-04,
insufficient evidence that he constructively possessed the ADB Fubinaca because
“the State offered no evidence from which a reasonable jury could conclude that
[Frye] intended to possess” that substance. (Appellant’s Brief at 32). Because it is
the only element Frye challenges on appeal, we review the sufficiency of the
evidence supporting only whether he had constructive possession of the drugs.
Compare State v. Watts
, 3d Dist. Hancock No. 5-12-34,
{¶54}
Based on the facts and circumstances of this case, the jury could
properly infer that Frye exercised dominion and control over the ADB Fubinaca.
Therefore, we conclude that the State presented sufficient evidence that Frye
constructively possessed the ADB Fubinaca.
See State v. Miller
, 9th Dist. Wayne
No. 1911,
disability, tampering-with-evidence, and possession-of-drugs convictions are based on sufficient evidence, we next address Frye’s argument that his possession-of- drugs conviction is against the manifest weight of the evidence. Velez , 2014-Ohio- 1788, at ¶ 76. In his challenge to the weight of the evidence regarding his possession-
of-drugs conviction, Frye contends that the evidence supporting that Patterson
possessed the ADB Fubinaca is weightier than the evidence that Frye possessed the
ADB Fubinaca. Again, since it is the only element that he challenges, we will
address the weight of the evidence supporting only whether Frye had constructive
possession of the ADB Fubinaca. “Even removing the lens of favorability in favor
of the prosecution, through which we examine the sufficiency of the evidence, this
is not an exceptional case where the evidence weighs heavily against the
convictions.”
State v. Suffel
, 3d Dist. Paulding No. 11-14-05,
presented at trial that Frye exercised dominion and control over the ADB Fubinaca.
“A jury can make reasonable inferences from the evidence.”
State v. Knight
, 10th
Dist. Franklin No. 16AP-288,
{¶59} Frye’s sixth and seventh assignments of error are overruled.
Assignment of Error No. I
The Trial Court should have suppressed the fruits of the unwarranted searches of Mr. Frye’s trash and invasion of his right to privacy under the Ohio Constitution. In his first assignment of error, Frye argues that the trial court erred by
denying his motion to suppress evidence. In particular, he argues that the trial court erred by concluding that the three “trash pulls” conducted by law enforcement did not violate his right to privacy under the Ohio Constitution. A review of the denial of a motion to suppress involves mixed
questions of law and fact.
State v. Burnside
,
{¶62} Because it is the only issue that Frye challenges on appeal, we address only whether the trial court erred as a matter of law in concluding that Frye did not have a constitutionally protected privacy interest in the trash. The Fourth Amendment to the United States Constitution generally
prohibits warrantless searches and seizures, and any evidence obtained during an
unlawful search or seizure will be excluded from being used against the defendant.
State v. Steinbrunner
, 3d Dist. Auglaize No. 2-11-27,
of the people to be secure in their persons, houses, papers, and possessions, against
unreasonable searches and seizures shall not be violated.” This language is
“virtually identical to the language of the Fourth Amendment.”
State v. Hoffman
,
the Ohio Constitution provides greater protection than the Fourth Amendment to the
United States Constitution, a warrantless trash pull is not one of those situations.
Accord id.
at ¶ 16.
See State v. Adkins
, 12th Dist. Butler Nos. CA2014-02-036 and
CA2014-06-141,
reasoned that garbage voluntarily left for trash collection in an area which is susceptible to open inspections is not protected by the Fourth Amendment because “garbage is accessible to the public, anyone is free to examine it. Therefore the police are likewise free to search it for evidence of criminal activity.”
Quinn
at ¶ 16, quoting
Young
at ¶ 16, citing
State v. Sautter
, 6th Dist. Lucas No. L-
88-324,
protections based on the decisions of “four State Supreme Courts [that] have
deemed a trash pull to violate their State constitution”: New Mexico, New Jersey,
New Hampshire, and Vermont. (Appellant’s Brief at 8, citing
State v. Crane
, 329
P.3d 689 (N.M.2014),
State v. McAllister
,
protected privacy interest in the trash. Quinn at ¶ 18 (“Thus, in light of the Ohio Supreme Court’s reluctance to expand the Ohio Constitution, our previous cases, and the lack of persuasive reasons appellant advances to enlarge the Ohio Constitution’s protections, we find that appellant did not have a constitutionality protected privacy interest in the garbage.”); Adkins at ¶ 42 (“[Adkins’s] trash was not protected under Article I, Section 14 of Ohio’s Constitution. The police were free to conduct the trash pull without a search warrant or reasonable suspicion.”). As such, the trial court did not err by denying Frye’s motion to suppress evidence.
{¶69} Frye’s first assignment of error is overruled.
Assignment of Error No. II
The Trial Court should have dismissed Count III of the Indictment because the charge results from an unlawful delegation of legislative authority and because ADB-Fubinaca is in fact not a Schedule I drug. In his second assignment of error, Frye argues that the trial court erred
by denying his motion to dismiss Count Three of the indictment. Specifically, Frye contends that he could not be charged with possession of drugs in violation of R.C. 2925.11(A), (C)(1)(a) for possessing a substance—ADB Fubinaca—that did not constitute a schedule I controlled substance at the time of his arrest. “A motion to dismiss charges in an indictment tests the sufficiency of
the indictment, without regard to the quantity or quality of evidence that may be
produced by either the State or the defendant.”
State v. Balo
, 3d Dist. Allen No. 1-
10-48,
to dismiss an indictment.
State v. Tayse
, 9th Dist. Summit No. 23978, 2009-Ohio-
1209, ¶ 28, citing
State v. Whalen
, 9th Dist. Lorain No. 08CA009317, 2008-Ohio-
6739, ¶ 7;
Whitehall v. Khoury
, 10th Dist. Franklin No. 07AP-711,
guidelines regarding controlled substances under the Controlled Substances Act contained in R.C. Chapter 3719. R.C. 3719.41 details the schedules of drugs subject to control by the Ohio Legislature, while R.C. 3719.43 and 3719.44 contain provisions for altering and updating the drug schedules. R.C. 3719.43 essentially states that when the United States Attorney General determines that a drug should be scheduled, the drug is automatically placed on the corresponding Ohio schedule. R.C. 3719.44 provides for the state board of pharmacy’s review and amendment of the Ohio drug schedules at any time and also details guidelines for the board’s consideration when it determines whether a compound should be added to or transferred from a particular schedule.
State v. Ingram
,
substance under Ohio law at the time of his arrest under R.C. 3719.41 or by virtue
of R.C. 3719.43 or 3719.44. Although it concedes that ADB Fubinaca was not
designated as a federally controlled substance at the time of Frye’s arrest, the State
argues that ADB Fubinaca was classified as a schedule I controlled substance under
Ohio law at the time of Frye’s arrest under Ohio Adm.Code 4729-11-02.
However, in response to the State’s argument, Frye contends that the
State Board of Pharmacy exceeded its rulemaking authority when it enacted Ohio
Adm.Code 4729-11-02. “A challenge to an administrative agency’s rulemaking
authority is a question of law, and, therefore, we exercise de novo review.”
Parrott
v. State Med. Bd. of Ohio
, 10th Dist. Franklin No. 15AP-963,
“The purpose of administrative rule-making is to facilitate the administrative agency’s placing into effect the policy declared by the General Assembly in the statutes to be administered by the agency. In other words, administrative agency rules are an administrative means for the accomplishment of a legislative end.”
Parrott
at ¶ 25, quoting
Nelson v. Mohr
, 10th Dist. Franklin No. 13AP-130, 2013-
Ohio-4506, ¶ 14, citing
Carroll v. Dept. of Adm. Servs.
,
exceeds the rulemaking authority conferred to the State Board of Pharmacy by the legislature: (1) that “the authorizing statute does not authorize the State Board of Pharmacy to include a class of chemicals onto a schedule by general description; (2) that it is “an unlawful delegation by the State Board of Pharmacy to the degree that the State Board of Pharmacy extends the power to establish a chemical substance as a Schedule I controlled substance by the action of ‘an established forensic laboratory’” and (3) that the State Board of Pharmacy did not consider the factors under R.C. 3719.44(B) in “determining whether to include or not include the substance and where to put the substance on the schedules.” (Appellant’s Brief at 13, 14). First, we note that the Ohio legislature constitutionally delegated the
authority under R.C. 3719.43 and 3719.44 to the State Board of Pharmacy to revise
the schedule of controlled substances.
See State v. Klinck
,
unreasonably in enacting Ohio Adm.Code 4729-11-02 to classify synthetic cannabinoids—synthetic marijuana—as schedule I controlled substances, we conclude that the State Board of Pharmacy neither acted unlawfully nor unreasonably in establishing the rule. The Supreme Court of Ohio has addressed an issue similar to that raised by Frye. See Sterling Drug . Specifically, the Court addressed whether the State Board of Pharmacy exceeded its scope of authority when “the board by rule, Ohio Adm.Code 4729-11-02, amended Schedule II to include pentazocine.” Id. at syllabus. In that case, Sterling Drug argued, in part, that the State Board of Pharmacy exceeded its authority by classifying pentazocine as a schedule II controlled substance when “the statutory criteria in R.C. 3719.44 for the placement of a substance in Schedule II” were not satisfied. Id. Although the Court ultimately concluded that the State Board of Pharmacy acted unreasonably and unlawfully in classifying pentazocine as a schedule II controlled substance because the evidence in the record did not reflect the factors required under R.C. 3719.44(D), the rationale applied by the Supreme Court guides the outcome of this case. Regarding the authority of the State Board of Pharmacy to generally
classify pentazocine as a schedule II controlled substance, the Court stated,
R.C. 3719.44(A)(1) expressly authorizes the board to add a previously unscheduled compound , mixture , preparation or substance to any schedule. Nowhere in the legislative grant did the General Assembly limit or otherwise direct where, in an existing schedule, a new substance should be placed.
(Emphasis added.) at 24. In this case, in addition to the authority under R.C. 3719.44, the State
Board of Pharmacy enacted Ohio Adm.Code 4729-11-02 under the authority of R.C. 3719.28 and 4729.26. R.C. 3719.28 provides, in relevant part:
(A) The state board of pharmacy * * * shall adopt rules for administration and enforcement of Chapter 3719. of the Revised Code * * *. Such rules shall be designed to:
(1) Facilitate surveillance of traffic in drugs, to prevent the improper acquisition or use of controlled substances or their diversion into illicit channels;
(2) Aid the state board of pharmacy and state, local, and federal law enforcement officers in enforcing the laws of this state and the federal government dealing with drug abuse and control of drug traffic.
R.C. 3719.28(A). These statutes provided the State Board of Pharmacy with the ability
to enact Ohio Adm.Code 4729-11-02.
See Sterling Drug
at 24.
Compare DDJ, Inc.
v. Liquor Control Comm.
,
unlawful to the extent that the State Board of Pharmacy relies on the chemical
analysis conducted by an established forensic laboratory to determine if a substance
constitutes a synthetic cannabinoid. It is well settled that the General Assembly
may grant the authority to an administrative agency to promulgate “subordinate
rules within prescribed limits” and determine the “facts to which the legislative
policy is to apply” so long as the “General Assembly has laid down the policy and
established the standards.”
Burger Brewing Co. v. Thomas
,
abuse, and control drug traffic, it is necessary to provide the State Board of
Pharmacy the authority to revise the schedules of controlled substances based on its
knowledge and expertise.
See Reed
,
“Pharmacophore Rule,” was promulgated to assist law enforcement in identifying, in part, the chemical structure of synthetic cannabinoids. See Ohio Attorney General’s Center for the Future of Forensic Science at Bowling Green State University, The Pharmacophore Rule , http://forensic.project.agileoasis.com/one/1.html (accessed Jan 31, 2018). “The Pharmacophore Rule is a scientific approach utilized by the State of Ohio to schedule current and future yet unidentified synthetic cannabinoids.” Specifically, the rule provides, in relevant part,
(B) Except as otherwise provided in section 3719.41 of the Revised Code, any compound that meets at least three of the following pharmacophore requirements to bind at the CB1 and CB2 receptors, as identified by a report from an established forensic laboratory, is a schedule I controlled substance hallucinogen:
(1) A chemical scaffold consisting of substituted or non-substituted ring structures that facilitate binding of required elements (such as: indole compounds, indazoles, benzimidazoles or other ring types); (2) Alkyl or aryl side chain off the chemical scaffold providing hydrophobic interaction with the CB1 and CB2 receptors; (3) Carbonyl or ester or equivalent for hydrogen bonding; (4) Cyclohexane, naphthalene ring, substituted butanamide or equivalent for steric requirements for CB1 and CB2 receptor binding.
Ohio Adm.Code 4729-11-02(B). Under the rule, a “pharmacophore” is defined as
“the portion of a chemical structure that confers the activity of the substance.” Ohio
Adm.Code 4729-11-01. More plainly, “[a] pharmacophore represents the minimum
required parts of a drug or molecule needed to bind to a receptor. Binding to a
receptor generates an effect in the body (usually in the brain), which has been
documented by scientific studies.” Ohio Attorney General,
Drug Chemistry Unit
,
http://www.ohioattorneygeneral.gov/Law-Enforcement/Bureau-of-Criminal-
Investigation/Laboratory-Division/Drug-Chemistry-Unit (accessed Jan. 31, 2018).
Given the ever-evolving drug culture, especially with “synthetic
designer drugs,” Ohio Adm.Code 4729-11-02 was established to provide “an
established forensic laboratory the ability to identify the synthetic cannabinoid
pharmacophore found within a larger drug molecule.” Indeed, once “the first
synthetic spice sold on the internet”—JWH-018—was classified as a schedule I
controlled substance, criminals modified the chemical structure of JWH-018 “to try
and stay ahead of law enforcement and crime laboratories.”
See
Ohio Attorney
General’s Center for the Future of Forensic Science at Bowling Green State
University,
The
Pharmacophore
Rule
,
http://forensic.project.agileoasis.com/one/1.html (accessed Jan 31, 2018).
Based on the purpose of the Pharmacophore Rule outlined above, the
rule is reasonable and consistent with the General Assembly’s delegation of power
to the State Board of Pharmacy to facilitate the administration and enforcement of
controlled substances. That is, Ohio Adm.Code 4729-11-02 is intended to facilitate
surveillance of traffic in synthetic cannabinoids as well as to prevent the improper
acquisition and use of synthetic cannabinoids. That an established forensic
laboratory must identify the pharmacophore properties of a substance does not
constitute an unlawful delegation of authority from the State Board of Pharmacy to
that laboratory. Rather, Ohio Adm.Code 4729-11-02(B) is a tool utilized by the
Board of Pharmacy to determine factual information regarding a substance.
Compare Cooper
,
(B) In making a determination to add, remove, or transfer pursuant to division (A) of this section, the board shall consider the following: (1) The actual or relative potential for abuse;
(2) The scientific evidence of the pharmacological effect of the substance, if known;
(3) The state of current scientific knowledge regarding the substance;
(4) The history and current pattern of abuse;
(5) The scope, duration, and significance of abuse; (6) The risk to the public health;
(7) The potential of the substance to produce psychic or physiological dependence liability;
(8) Whether the substance is an immediate precursor.
R.C. 3917.44(B). Frye failed to meet his burden of proving that the State Board of
Pharmacy did not comply with the conditions of R.C. 3917.44(B) in enacting Ohio Adm.Code 4729-11-02. Frye does not point to any specific evidence that those legislative conditions were not met. Rather, the administrative-rule history reflects that the State Board of Pharmacy considered those legislative conditions. In establishing the rule, the State Board of Pharmacy identified that synthetic cannabinoids “are likely to share effects with two Schedule I substances,” including symptoms of “agitation, paranoia, confusion, violence, convulsions, unconsciousness, lethargy, nervousness, erratic behavior, driving as if intoxicated, inability to stand and slurred speech.” State Board of Pharmacy, Scheduling of Compounds , Rule Summary and Fiscal Analysis (Part A) , http://www.registerofohio.state.oh.us/pdfs/4729/0/11/4729-11- 02_PH_OF_A_RS_20140806_1533.pdf (accessed Jan. 31, 2018). Further, the State Board of Pharmacy proffered as a rationale for the administrative rule that “potential reformulations of banned synthetic cannabinoids * * * pose an emerging threat to the health and well-being of Ohio citizens.” Accordingly, it is apparent that the State Board of Pharmacy considered the factors enumerated under R.C. 3719.44(B) when deciding to include synthetic cannabinoids on Ohio’s schedule of controlled substances. Assuming that those facts are sufficient, as we are required to do, Ohio Adm.Code 4729-11-02(B) is consistent with the authority granted to the State Board of Pharmacy. For these reasons, we conclude that Ohio Adm.Code 4729-11-02 is
reasonable and consistent with the authority granted to the State Board of Pharmacy.
See Hinton Adult Care Facility v. Ohio Dept. of Mental Health & Addiction Servs.
,
4th Dist. Ross No. 16CA3566,
Assignment of Error No. III
The Trial Court erred in rejecting Mr. Frye’s due process requests as to witness immunity consideration. In his third assignment of error, Frye argues that the trial court erred
by denying his request for immunity under R.C. 2945.44 for Patterson and Timothy—witnesses he intended to call as part of his defense. Frye makes two arguments: (1) that the trial court should have granted Patterson and Timothy “Testimonial, or ‘Use,’ Immunity” and (2) that R.C. 2945.44 is “unconstitutional because of obvious Due Process and Equal Protection concerns in granting a right to the prosecution to compel witnesses to testify that is not equally extended to the defendant, who has a constitutional right to compulsory process.” (Appellant’s Brief at 15, 16). “In [Ohio], criminal procedure is governed entirely by statute.” State
ex rel. Leis v. Outcalt
,
(A) In any criminal proceeding in this state * * *, if a witness refuses to answer or produce information on the basis of the witness’s privilege against self-incrimination, the court of common pleas of the county in which the proceeding is being held, unless it finds that to do so would not further the administration of justice, shall compel the witness to answer or produce the information, if both of the following apply:
(1) The prosecuting attorney of the county in which the proceedings are being held makes a written request to the court of common pleas to order the witness to answer or produce the information, notwithstanding the witness’s claim of privilege; (2) The court of common pleas informs the witness that by answering, or producing the information the witness will receive immunity under division (B) of this section.
(B) If, but for this section, the witness would have been privileged to withhold an answer or any information given in any criminal proceeding, and the witness complies with an order under division (A) of this section compelling the witness to give an answer or produce any information, the witness shall not be prosecuted or subjected to any criminal penalty in the courts of this state for or on account of any transaction or matter concerning which, in compliance with the order, the witness gave an answer or produced any information.
R.C. 2945.44(A), (B).
See Outcalt
at 148. “The mandate of the statute is clear:
immunity may not be granted unless (1) the witness refuses to answer on the basis
of his privilege against self-incrimination, (2) the prosecuting attorney makes a
written request to order the witness to answer, and (3) the court informs the witness
he will receive transactional immunity.”
State ex rel. Koren v. Grogan
, 68 Ohio
St.3d 590, 592 (1994). “‘Before granting immunity, the common pleas court must
also determine, in its discretion, whether the prosecutor’s request for immunity
would further the administration of justice.’”
State v. Tomlinson
, 125 Ohio App.3d
13, 18 (11th Dist.1997), quoting
State v. Asher
, 112 Ohio App.3d 646, 653 (1st
Dist.1996). “The decision of whether to grant immunity rests within the sound
discretion of the trial court and will not be disturbed on appeal in the absence of an
abuse of discretion.” , citing
State ex rel. Ney v. Niehaus
,
immunity for Patterson and Timothy under R.C. 2945.44 for two reasons. First,
Frye requested that the trial court grant Patterson and Timothy “use” immunity.
Under R.C. 2945.44, “Ohio courts may grant
only
transactional immunity,” which
“protects the witness from prosecution for any criminal activity about which he
testified within the limits of the grant.” (Emphasis added.)
Grogan
, 68 Ohio St.3d
at 592-593. “‘Transactional immunity’ is broader than ‘use immunity’ because it
completely prohibits the government from prosecuting the defendant for the
immunized crimes, rather than merely preventing the use of the immunized
testimony.”
State v. Adams
, 153 Ohio App.3d 134,
Patterson or Timothy immunity because neither witness was called to testify.
Because neither witness was called to testify, neither Patterson nor Timothy refused
to testify on Fifth Amendment grounds.
See id.
at 149 (concluding that the trial
court exceeded its “authority by needlessly granting immunity to a witness who
never
refused to testify on Fifth Amendment grounds”).
Compare State v. Reed
,
10th Dist. Franklin No. 08AP-20,
2945.44, the trial court did not commit plain error in rejecting his argument. At first
glance, it appears that Frye is facially attacking the constitutionality of R.C. 2945.44
on equal-protection grounds. However, Frye’s argument does no more than hint
that R.C. 2945.44 “seems to be a violation of equal protection principles, as one
party (the prosecution) has an enhanced ability to compel testimony, a power
enhanced over the constitutional right of the accused.” (Appellant’s Brief at 16).
Rather, Frye’s argument requests that this court adopt the procedure adopted in
Carter v. United States
,
remand the case with instruction to conduct a hearing as to whether the proffered testimony would have been material. The Trial Court should be directed to then, if so ruling, submit the question to the prosecution per the Carter procedure, somewhat in a modified hearing along the lines of a new trial motion.
(Appellant’s Brief at 20). Because a party challenging the constitutionality of a statute carries
the burden of proving that it is unconstitutional, we decline to address Frye’s
“statement” regarding the constitutionality of R.C. 2945.44 since he offered no
argument in support of any constitutional challenge.
See In re Washington
, 10th
Dist. Franklin No. 04AP-429,
illustrated by the court in Carter , we decline to do so. The procedure prescribed by the court in Carter provides:
If, after a hearing, the trial court were to conclude that, all circumstances considered, the defendant will not receive a fair trial without the testimony of a crucial defense witness whose testimony meets the mandatory requirements we have previously spelled out in this opinion (exculpatory evidence, etc.), and importantly, the government does not submit to the court a reasonable basis for not affording use immunity to the crucial witness in order to procure the vital defense testimony, then the trial court would be justified in informing the government that it must make the choice between dismissal of the indictment or some other commensurate remedy which the court may fashion on Sixth Amendment and due process grounds, or affording use immunity to the crucial defense witness involved who is shown to be the only witness who, if believed, would clearly establish a reasonable doubt on the defendant’s guilt.
Carter at 343. Carter is entirely distinguishable from the facts of this case. Namely,
not only did the witness-immunity statute at issue in Carter authorize “use” and “transactional” immunity, the analysis in Carter focuses only on “use” immunity. See id. at 340, fn. 5, 342. Since, as we discussed above, Ohio authorizes only transactional immunity, we reject Frye’s argument. For these reasons, the trial court did not commit plain error in rejecting Frye’s request.
{¶101} Frye’s third assignment of error is overruled.
Assignment of Error No. IV
Mr. Frye was denied a fair trial because the Trial Court over objection defined possession in the context of a controlled substance and improperly denied the defense motion for a new trial on that issue. In his fourth assignment of error, Frye argues that the trial court erred
by denying his motion for a new trial on the basis that the trial court incorrectly defined “possession” for the jury. Motions for new trial are governed by Crim.R. 33(A), which
provides, in relevant part, that a trial court may grant a new trial when there is an
“[i]rregularity in the proceedings, or in any order or ruling of the court, or abuse of
discretion by the court, because of which the defendant was prevented from having
a fair trial” or an “[e]rror of law occurring at the trial.” Crim.R. 33(A)(1), (5). “A
reviewing court will not disturb a trial court’s decision granting or denying a
Crim.R. 33 motion for new trial absent an abuse of discretion.”
State v. Sanders
,
the trial court erred by submitting to the jury, the following jury instruction defining “possession”:
A person has constructive possession if he is able to exercise dominion and control over an item, even if the individual does not have immediate physical possession of it. For constructive possession to exist, it must also be shown that the person was conscious of the presence of the object. The State may prove the existence of the various elements of constructive possession of drugs by circumstantial evidence alone.
(Emphasis added.) (Doc. No. 69, quoting May 23-25, 2017 Tr., Vol. IV, at 627). Frye argues that the trial court’s instruction is an incorrect definition of constructive possession under Ohio law and that that the trial court should have replaced the mens rea of that definition of constructive possession—“able to”—with “knowingly.” ( See Appellant’s Brief at 24). “Ordinarily, the trial court has discretion to decide to give or refuse
a particular instruction, and an appellate court will not disturb that decision absent
an abuse of discretion.”
State v. Teitelbaum
, 10th Dist. Franklin No. 14AP-310,
This court has defined “constructive possession” on a number of occasions using
the “able to” language as well as the “knowingly” language.
See, e.g.
,
Watts
, 2016-
Ohio-257, at ¶ 11 (“‘A person has “constructive possession” if he is able to exercise
dominion and control over an item, even if the individual does not have immediate
physical possession of it.’”), quoting
Bustamante
,
{¶108}
For these reasons, we conclude that the trial court’s jury instruction
did not mislead the jury and is a correct statement of law.
Compare Warren
at ¶ 28-
29 (rejecting Warren’s argument that the jury instruction was flawed because it used
the “able to” language);
Harris
,
trial. Thus, the trial court did not abuse its discretion by denying Frye’s motion for a new trial. Frye’s fourth assignment of error is overruled.
Assignment of Error No. V
Prosecutorial misconduct deprived Mr. Frye of a fair trial.
{¶111} In his fifth assignment of error, Frye points to two instances that he argues demonstrates prosecutorial misconduct and denied him a fair trial. Specifically, he argues that the State failed to disclose “a printout of Mr. Patterson’s arrest record” and elicited false and prejudicial testimony. “The test for prosecutorial misconduct is whether the remarks were
improper and, if so, whether they prejudicially affected the accused’s substantial
rights.”
State v. Liles
, 3d Dist. Allen No. 1-14-61,
issue with “[t]he method of enabling * * * the jury [to] reach th[e] false inference.” (Appellant’s Brief at 29). He argues that, despite his request “for criminal records of intended State witnesses,” the State failed to disclose Patterson’s “arrest record” even though the State originally intended to call Patterson as a witness. ( at 29). He argues, “[a]t trial, the State refused to provide [Patterson’s] criminal record, however, claiming at the last minute that the State had decided not to call Mr. Patterson as a witness, rendering that information non-discoverable.” ( Id. ). Instead, “[a]fter handing a printout of Mr. Patterson’s arrest record to their law enforcement witness, a printout not yet shared with the defense (despite objection), the prosecution asked the officer if anything in that record established that Mr. Patterson had a weapons disability, to enable the answer, ‘No.’” ( Id. at 29-30). Frye contends that the State’s deceptive behavior prejudiced his trial because “[n]ot revealed to the jury were the extensive felony arrest record and the fact law enforcement made no effort to follow up on ‘disposition unknown’ entries in the arrest record.” ( at 30). Crim.R. 16 provides the discovery rules for criminal
proceedings.
State v. Engle,
(B) Discovery: Right to Copy or Photograph. Upon receipt of a written demand for discovery by the defendant, and except as provided in division (C), (D), (E), (F), or (J) of this rule, the prosecuting attorney shall provide copies or photographs, or permit counsel for the defendant to copy or photograph, the following items related to the particular case indictment, information, or complaint, and which are material to the preparation of a defense, or are intended for use by the prosecuting attorney as evidence at the trial, or were obtained from or belong to the defendant, within the possession of, or reasonably available to the state, subject to the provisions of this rule: * * *
(2) Criminal records of the defendant, a co-defendant, and the record of prior convictions that could be admissible under Rule 609 of the Ohio Rules of Evidence of a witness in the state’s case-in-chief, or that it reasonably anticipates calling as a witness in rebuttal.
Crim.R. 16(B)(2).
See State v. Leonard
, 4th Dist. Lawrence No. 93 CA 42, 1994
WL 583704, *2 (Oct. 20, 1994) (“Crim.R. 16(B)(1)(e) requires that the prosecutor
furnish the defendant with prior felony records of prosecution witnesses.”), citing
State v. Spikes
,
16(E)(3), which provides:
“If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may make such other order as it deems just under the circumstances.”
Engle
at ¶ 7, quoting Crim.R. 16(E)(3).
{¶116}
“The trial court’s decision regarding a Crim.R. 16 discovery sanction
is reviewed under an abuse of discretion standard.”
State v. Stiles
, 3d Dist. Allen
No. 1-08-12,
when there is a showing that (1) the prosecution’s failure to disclose was willful, (2)
disclosure of the information prior to trial would have aided the accused’s defense,
and (3) the accused suffered prejudice.”
State v. Jackson
,
the discovery rules; yet, it ordered the State to provide Patterson’s criminal-history
printout to Frye. Although we defer to the trial court’s discovery-violation
determinations, we highly discourage the State’s conduct in this case.
See State v.
Darmond
, 135 Ohio St.3d 343,
in criminal cases.”
State v. Athon
,
Crim.R. 16(A) now states, “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.” Crim.R. 16(A) further indicates that “[a]ll 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.”
Id. The State’s conduct in this case is not emblematic of the spirit of the
discovery rules.
See State v. Johnson
, 8th Dist. Cuyahoga No. 36580, 1977 WL
201612, *2 (Nov. 23, 1977) (“The prosecutor in this case did not comply with the
spirit or language of the discovery rules. We condemn such a practice.”);
State v.
Kopatz
, 5th Dist. Stark No. CA-8293, 1991 WL 34876, *2 (Mar. 11, 1991)
(concluding that the State’s argument “that the request for discovery only wanted
the names of witnesses to be called at trial” was “somewhat disingenuous, and
contrary to the spirit if not the letter of the rules regarding discovery”). The record
reflects that the State’s response on December 22, 2016 to Frye’s discovery demand
documents that the State intended to call Patterson as a witness. (Doc. No. 11).
Until the second day of trial, there is no evidence in the recording indicating that the
State no longer intended to call Patterson as a witness. The State’s intention not to
call Patterson at trial was exposed only after the State asked Investigator Harrod
about Patterson’s criminal history. (May 23-25, 2017 Tr., Vol. II, at 270). After
Frye objected, Frye informed the trial court that Patterson’s criminal history was not
provided in discovery. (
Id.
at 272-273). In response, the State asserted that it did
not intend to call Patterson as a witness. ( at 273-274). The timing of the State’s
indication not to call Patterson gives the appearance of poor trial preparation, at best,
or of being disingenuous.
Compare State v. Bowshier
, 2d Dist. Clark No. 2008 CA
101,
that the State did not violate the rules of discovery while still ordering the State to
provide Frye a copy of Patterson’s criminal history. Indeed, the rule requires the
provision of criminal records of state’s witnesses; however, the rule does not
explicitly state when provision of that record is required. Rather, the timeliness
determinations are left to the discretion of the trial court. Moreover, Frye did not
seek any additional remedy, such as a continuance.
See State v. Orsborne
, 3d Dist.
Allen No. 1-06-94,
the State did not violate the discovery rules, there is no error, let alone a reversible
error. As such, Frye cannot demonstrate that his substantial rights were
prejudicially affected or that the outcome of his trial would have been different.
Compare id.
(concluding that even though “the prosecution violated Crim.R. 16,
the violation is not reversible error in this case because there is no indication that
Orsborne was prejudiced.”).
See Bowshier
,
criminal record to elicit testimony from Investigator Harrod, which, according to Frye, misrepresented Patterson’s criminal past. That is, Frye alleges that the State “intentionally and unconscionably created a false view to the jury that Cornelius Patterson had no weapons disability and hence no motive, knowing full well that this suggestion was likely false.” (Appellant’s Brief at 29). The particular exchange that Frye points to as creating the improper
inference is as follows:
[The State]: Okay. So, once investigators had completed their search and all the evidence was collected and secured you said you went to the Lima Police Department and briefly spoke with Cornelius Patterson as well as the defendant, Marlon, Frye; correct?
[Investigator Harrod]: Yes, ma’am.
[The State]: Okay. After speaking with Cornelius Patterson were you able to determine what he was doing at 1109 St. Johns Avenue?
[Investigator Harrod]: He was on vacation from Mississippi – Natchez, Mississippi. He had been here for approximately two to three weeks. He was a long time friend of Marlon Frye’s – all the way back to elementary school.
[The State]: And after speaking with him did you run a check of his criminal history?
[Investigator Harrod]: I did.
[The State]: Anything that showed that he wasn’t allowed – (May 23-25, 2017 Tr., Vol. II, at 270). At that time, Frye objected. ( Id. ). After the trial court concluded that the State did not violate the rules of discovery and ordered the State to provide to Frye a copy of Patterson’s criminal history, the State continued its direct examination of Investigator Harrod:
[The State]: Did your investigation reveal any legal reason why Cornelius Patterson couldn’t have a firearm?
[Investigator Harrod]: No, ma’am.
( at 279). Frye contends that this line of questioning constituted misconduct
because it impermissibly permitted the jury to infer that Patterson did not have a
criminal history that would have established a weapons disability, which would
have supplied him motive to dispose of the gun.
Compare State v. Obermiller
, 147
Ohio St.3d 175,
improper, Frye cannot demonstrate that the State’s questions were prejudicial or that
the outcome of his trial would have been different.
See id.
at ¶ 106.
See also State
v. Hayes
, 10th Dist. Franklin No. 02AP-938,
{¶126} For these reasons, Frye presented no evidence that the result of his trial would have been different. Frye’s fifth assignment of error is overruled.
Assignment of Error No. VIII
The Trial Court erred by refusing to merge Counts I and II.
{¶127} In his eighth assignment of error, Frye argues that the trial court erred by failing to merge his having-weapons-while-under-disability and tampering-with- evidence convictions. Whether offenses are allied offenses of similar import is a question
of law that this court reviews de novo.
State v. Stall
, 3d Dist. Crawford No. 3-10-
12,
(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. The Supreme Court of Ohio directs us to apply a three-part test to
determine whether a defendant can be convicted of multiple offenses:
“As a practical matter, when determining whether offenses are allied offenses of similar import within the meaning of R.C. 2941.25, courts must ask three questions when defendant’s conduct supports multiple offenses: (1) Were the offenses dissimilar in import or significance? (2) Were they committed separately? and (3) Were they committed with separate animus or motivation? An affirmative answer to any of the above will permit separate convictions. The conduct, the animus, and the import must all be considered.”
State v. Earley
,
question of the tripart test. “The term ‘animus’ means ‘“purpose or, more properly,
immediate motive.”’”
State v. Ramey
, 2d Dist. Clark No. 2014-CA-127, 2015-
Ohio-5389, ¶ 70, quoting
State v. Grissom
, 2d Dist. Montgomery No. 25750, 2014-
Ohio-857, ¶ 40, quoting
State v. Logan
,
but must be inferred from the surrounding circumstances.’”
Id.
at ¶ 71, quoting
Logan
at 131. “‘Thus the manner in which a defendant engages in a course of
conduct may indicate distinct purposes.’” , quoting
State v. Whipple
, 1st Dist.
Hamilton No. C-110184,
while-under-disability and tampering-with-evidence convictions do not merge.
See
State v. Lyons
, 7th Dist. Jefferson No. 16 JE 008,
commit the having-weapons-while-under-disability and tampering-with-evidence
crimes with the same animus. In other words, there is
no
evidence in the record that
Frye acquired the firearm with an immediate, virtually simultaneous intent to
conceal it to impair its availability as evidence in an investigation.
Compare Clark
at ¶ 31. Rather, the record reflects that the firearm was in Frye’s residence prior to
law enforcement’s entry. Indeed, law enforcement discovered a firearm holster in
the cabinet in which law enforcement also discovered narcotics. For the same
reasons we concluded in Frye’s sixth and seventh assignments of error that he
possessed the ADB Fubinaca, it is reasonable to conclude that Frye possessed the
firearm. Specifically, it is reasonable to conclude that Frye possessed the firearm
prior to intending to conceal it from law enforcement by placing it in the toilet.
Accordingly, we conclude Frye necessarily acquired the firearm prior to law
enforcement’s entry into his residence and prior to the time he intended to conceal
it from law enforcement by placing it in the toilet. Therefore, Frye committed the
offenses with separate animus.
See Lyons
at ¶ 42;
Wilcox
at ¶ 20. Because “we may
end our analysis upon an affirmative response to any of the three [
Ruff
] questions[,]”
we need not address whether the offenses are of dissimilar import or whether Frye
committed the offenses separately.
State v. Bailey
, 1st Dist. Hamilton No. C-
140129,
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed ZIMMERMAN, J., concurs.
SHAW, J., concurs in Judgment Only.
/jlr
Notes
[1] The Supreme Court of Ohio has defined “constructive possession” on three occasions.
See State v. Wolery
,
[2] Although the “two-step” analysis prescribed by the Supreme Court of Ohio in
Logan
has been overruled,
the court’s discussion of animus remains relevant under the current tripart test prescribed in
Ruff
.
See, e.g.
,
State v. Lundy
, 8th Dist. Cuyahoga No. 105117,