STATE OF OHIO, PLAINTIFF-APPELLEE, v. MARLON D. FRYE, DEFENDANT-APPELLANT.
CASE NO. 1-17-30
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
March 12, 2018
[Cite as State v. Frye, 2018-Ohio-894.]
PRESTON, J.
Appeal from Allen County Common Pleas Court Trial Court No. CR2016 0433
Judgment Affirmed
APPEARANCES:
Kenneth J. Rexford for Appellant
Jana E. Emerick for Appellee
{¶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
{¶3} On December 23, 2016, Frye appeared for arraignment and entered pleas of not guilty. (Doc. No. 13).
{¶4} 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.” (Id.). The State filed its response to Frye’s motion to suppress evidence on January 24, 2017. (Doc. No. 21). After a
{¶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.” (Id.). 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).
{¶6} 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).
{¶7} 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
{¶9} 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. (Id.).
{¶10} 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.
{¶12} 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.
{¶13} “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, 80 Ohio St.3d 89 (1997). Accordingly, “[t]he 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.” Id. “In deciding if the evidence was sufficient, we neither resolve evidentiary conflicts nor assess the
{¶14} On the other hand, in determining whether a conviction is against the 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, 2012-Ohio-5233, ¶ 9, quoting State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.
{¶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).
{¶16} 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.” (Id. at 244).
{¶17} Once law enforcement arrived at the residence and began to secure it, Investigator Harrod heard Investigator Trent Kunkleman (“Investigator
{¶18} Investigator Harrod identified State’s Exhibits 3-16 as photographs taken of the residence as it appeared on November 4, 2016. (Id. 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. (Id. 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).
{¶19} Investigator Harrod further testified that law enforcement discovered “a firearm * * * submerged in water inside the toilet bowl” while searching the
{¶20} 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.).
{¶21} 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.” (Id. at 291-292).
{¶22} 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.).
{¶23} 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. (Id. at 314-315). After brushing his teeth, Patterson then went
{¶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).
{¶26} 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).
{¶27} 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. (Id. 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
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).
{¶28} 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.” (Id. 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.” (Id. at 352-353).
{¶30} 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).
{¶31} 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.
(Id. 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).
{¶35} Thereafter, the State moved to admit Exhibits 1-28, which were admitted without objection, and rested. (Id. at 446, 460). Next, Frye made a
{¶36} 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. (Id.). 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
[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).
{¶39} Thereafter, the defense rested. (Id. at 481).
{¶40} 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.” (Id. at 487). Lieutenant Hook “went through [the kitchen] doorway and took a right and that’s
{¶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).
{¶43} The State did not present any additional witnesses on rebuttal, and Frye renewed his
{¶44} 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
{¶45} As such, we first review the sufficiency of the evidence supporting Frye’s having-weapons-while-under-disability, tampering-with-evidence, and possession-of-drugs convictions. State v. Velez, 3d Dist. Putnam No. 12-13-10, 2014-Ohio-1788, ¶ 68, citing State v. Wimmer, 3d Dist. Marion No. 9-98-46, 1999 WL 355190, *1 (Mar. 26, 1999). We will begin by addressing Frye’s sufficiency-of-the-evidence argument as it relates to his having-weapons-while-under-disability and tampering-with-evidence possession-of-drugs convictions, then we will address
{¶46} The criminal offense of having weapons while under disability is codified in
(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 * * *.
(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[.]
{¶47} In support of his sufficiency-of-the-evidence challenge, Frye argues 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
{¶48} Viewing the evidence in a light most favorable to the prosecution, a 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
{¶49} 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.
{¶50} 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
{¶51} “Possession of drugs can be either actual or constructive.” State v. Bustamante, 3d Dist. Seneca Nos. 13-12-26 and 13-13-04, 2013-Ohio-4975, ¶ 25, citing State v. Cooper, 3d Dist. Marion No. 9-06-49, 2007-Ohio-4973, ¶ 2, citing State v. Wolery, 46 Ohio St.2d 316, 329 (1976) and State v. Haynes, 25 Ohio St.2d 264 (1971). “‘A person has “actual possession” of an item if the item is within his immediate physical possession.’” Id., quoting State v. Williams, 4th Dist. Ross No. 03CA2736, 2004-Ohio-1130, ¶ 23. “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.” Id., citing State v. Hankerson, 70 Ohio St.2d 87 (1982), syllabus and Wolery at 329. “For constructive possession to exist, ‘[i]t must also be shown that the person was conscious of the presence of the object.’” Id., quoting Hankerson at 91. “Finally, the State may prove the existence of the various elements of constructive possession of contraband by circumstantial evidence alone.” Id., citing State v. Stewart, 3d Dist. Seneca No. 13-08-18, 2009-Ohio-3411, ¶ 51. See also Jenks, 61 Ohio St.3d at 272-73. “Absent a defendant’s admission, the surrounding facts and circumstances, including the defendant’s actions, are evidence that the trier of fact can consider in determining whether the defendant had constructive possession.” State v. Voll, 3d Dist. Union No. 14-12-04, 2012-Ohio-3900, ¶ 19, citing State v. Norman, 10th Dist. Franklin No. 03AP-298, 2003-Ohio-7038, ¶ 31 and State v. Baker, 10th Dist. Franklin No. 02AP-627, 2003-Ohio-633, ¶ 23.
{¶52} Under his seventh assignment of error, Frye contends that there is 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, 2016-Ohio-257, ¶ 43.
{¶53} Viewing the evidence in a light most favorable to the prosecution, we conclude that Frye’s possession-of-drugs conviction is supported by sufficient evidence. A rational trier of fact could have found that Frye had constructive possession of the ADB Fubinaca—that is, that he exercised dominion and control over the ADB Fubinaca. Indeed, Frye testified that he knew the ADB Fubinaca was in the cupboard in his kitchen. Compare State v. Durr, 4th Dist. Scioto No. 11CA3411, 2012-Ohio-4691, ¶ 51 (concluding that Durr’s possession-of-drugs conviction was based on sufficient evidence because “the jury could properly infer Durr knew there were controlled substances in the house and he was capable of exercising dominion or control over them, establishing his constructive possession of the controlled substances”); State v. Howard, 4th Dist. Scioto No. 11CA3415, 2012-Ohio-4690, ¶ 52 (same); State v. Williams, 4th Dist. Scioto No. 11CA3408, 2012-Ohio-4693, ¶ 43 (same); State v. Pippen, 4th Dist. Scioto No. 11CA3412, 2012-Ohio-4692, ¶ 44 (same), overruled on other grounds, State v. Mozingo, 4th Dist. Adams No. 16CA1025, 2016-Ohio-8292. See also State v. Alexander, 8th Dist. Cuyahoga No. 90509, 2009-Ohio-597, ¶ 24 (“Inherent in a finding of constructive possession is that the defendant was conscious of the item and therefore had knowledge of it.”), citing Hankerson at 91 (concluding that the “mere fact that property is located within premises under one’s control does not, of itself, constitute constructive possession[;] * * * [i]t must also be shown that the person was conscious of the presence of the object”). Further, Frye’s assertion that the ADB Fubinaca did not belong to him is inconsequential. See State v. Grundy, 9th Dist. Summit No. 19016, 1998 WL 852844, *10 (Dec. 9, 1998) (“It is also irrelevant that he did not admit that the cocaine was his. Sufficient evidence existed that Defendant had exercised dominion and control over the cocaine, and was in constructive possession of the substance.”).
{¶55} Having concluded that Frye’s having-weapons-while-under-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.
{¶56} 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
{¶57} Frye argues that the weight of the evidence shows that Patterson brought the ADB Fubinaca with him from Mississippi since it was contained in a “plastic Tupperware” container, which is “consistent with travel.” (Appellant’s Brief at 31). As we noted above, it is irrelevant who brought the ADB Fubinaca to the residence; rather, the relevant inquiry is whether the weight of the evidence demonstrates that Frye exercised dominion and control over the ADB Fubinaca. See State v. Hilton, 9th Dist. Summit No. 21624, 2004-Ohio-1418, ¶ 24 (“The arguments * * * that the drugs and other items found may not have actually belonged to him, are ultimately inconsequential.”); Grundy, 1998 WL 852844, at *11 (“ownership is irrelevant when considering whether an individual possessed a substance”). See also State v. Hudson, 11th Dist. Trumbull No. 2014-T-0097, 2018-Ohio-133, ¶ 57 (concluding that the fact that another person “also had access to the drugs in the locked bedroom * * * does not vitiate [Hudson’s] conviction since the brothers could have had joint possession and control of the drugs”), citing State v. Collier, 8th Dist. Cuyahoga No. 78960, 2001 WL 1243925, *4 (Oct. 18, 2001), citing State v. Smith, 8th Dist. Cuyahoga No. 78277, 2001 WL 563077 (May 24, 2001) (“holding that ‘[j]oint possession * * * exists when two or more persons together have the ability to control an object, exclusive of others’”).
{¶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.
{¶60} 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.
{¶61} A review of the denial of a motion to suppress involves mixed questions of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. At a suppression hearing, the trial court assumes the role of trier of fact and, as such, is in the best position to evaluate the evidence and the credibility of witnesses. Id. See also State v. Carter, 72 Ohio St.3d 545, 552 (1995). When reviewing a ruling on a motion to suppress, “an appellate court must accept the trial court’s findings of fact if they are supported by competent, credible evidence.” Burnside at ¶ 8, citing State v. Fanning, 1 Ohio St.3d 19 (1982). With respect to the trial court’s conclusions of law, however, our standard of review is de novo, and we must
{¶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.
{¶63} The
{¶64}
{¶65} In advancing his argument, Frye concedes that the United States Supreme Court concluded that the protections of the
{¶66} Although there are certain situations in which
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, 1989 WL 90630, *2 (Aug. 11, 1989) (finding that regardless of where the trash was located, once the trash was available for pickup by the collection service,
{¶67} In addition, Frye argues that we should enlarge the Ohio Constitution’s 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, 366 N.J.Super. 251, 840 A.2d 967 (2004), rev’d in part on other grounds, 184 N.J. 17, 875 A.2d 866 (2005), State v. Goss, 150 N.H. 46, 834 A.2d 316 (2003), and State v. Morris, 165 Vt. 111, 680 A.2d 90 (1996)). In Quinn, the Twelfth District rejected a similar argument. See Quinn at ¶ 17. We likewise conclude that Frye’s argument relying on cases from other states addressing the privacy interests implicated by trash pulls under those states’ respective constitutions is unpersuasive. Because the Supreme Court of Ohio has not expanded the Ohio Constitution’s protections beyond the protections of the
{¶68} Accordingly, we conclude that Frye does not have a constitutionally 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
{¶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.
{¶70} 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
{¶71} “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, 2011-Ohio-3341, ¶ 35, citing State v. Eppinger, 162 Ohio App.3d 795, 2005-Ohio-4155, ¶ 37 (8th Dist.). See also State v. Thornsbury, 4th Dist. Lawrence No. 12CA9, 2013-Ohio-1914, ¶ 6, citing State v. Evans, 4th Dist. Scioto No. 08CA3268, 2010-Ohio-2554, ¶ 18. “A reviewing court must examine the face of the charging instrument to determine its sufficiency.” Balo at ¶ 35, citing State v. Egler, 3d Dist. Defiance No. 4-07-22, 2008-Ohio-4053, ¶ 14, State v. Desote, 3d Dist. Putnam Nos. 12-03-05 and 12-03-09, 2003-Ohio-6311, ¶ 8, and Eppinger at ¶ 37. “In determining whether an indictment is valid on its face, the proper inquiry is whether the allegations contained in the indictment constitute an offense under Ohio law.” Egler at ¶ 14. “A motion to dismiss an indictment cannot properly be granted where the indictment is valid on its face.” Id.
{¶72} An appellate court reviews de novo a trial court’s denial of a motion 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, 2008-Ohio-1376, ¶ 7, citing Akron v. Molyneaux, 144 Ohio App.3d 421, 426 (9th Dist.2001). See also Balo at ¶ 35 (“‘The [sufficiency] of an indictment is a question of law, requiring a de novo review.’”), quoting State v. Reinhart, 3d Dist. Van Wert No. 15-06-07, 2007-Ohio-2284, ¶ 12; Thornsbury at ¶ 6 (“The sufficiency of an indictment is a question of law that we review de novo.”), citing Evans at ¶ 18. “De novo review is independent, without deference to the lower court’s decision.” State v. Hudson, 3d Dist. Marion No. 9-12-38, 2013-Ohio-647, ¶ 27.
State v. Ingram, 64 Ohio App.3d 30, 32 (1st Dist.1989).
{¶74} Frye argues that ADB Fubinaca did not constitute a controlled substance under Ohio law at the time of his arrest under
“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., 10 Ohio App.3d 108, 110 (10th Dist.1983). “It is well-established that when by statutory authority an administrative agency promulgates rules and regulations governing its activities and procedures, such rules are valid and enforceable unless they are unreasonable or in
{¶76} Frye advances three arguments that
{¶77} First, we note that the Ohio legislature constitutionally delegated the authority under
{¶78} Turning to whether the State Board of Pharmacy acted unlawfully or unreasonably in enacting
{¶79} 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.) Id. at 24.
(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.
{¶81} These statutes provided the State Board of Pharmacy with the ability to enact
{¶82} Moreover,
{¶84} By way of illustration,
(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.
{¶85} Given the ever-evolving drug culture, especially with “synthetic designer drugs,”
{¶86} 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,
{¶87} We also reject Frye’s argument that the State Board of Pharmacy was without authority to adopt
(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.
{¶88} Frye failed to meet his burden of proving that the State Board of Pharmacy did not comply with the conditions of
{¶89} For these reasons, we conclude that
{¶90} Frye’s second assignment of error is overruled.
Assignment of Error No. III
The Trial Court erred in rejecting Mr. Frye’s due process requests as to witness immunity consideration.
{¶92} “In [Ohio], criminal procedure is governed entirely by statute.” State ex rel. Leis v. Outcalt, 1 Ohio St.3d 147, 148 (1982). As such, the only authority for a trial court to grant immunity is through
(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.
{¶93} As an initial matter, we must address whether Frye properly preserved this issue on appeal. Assuming without deciding that Frye properly raised the issue in his pretrial motion, as with similar pretrial motions requesting the trial court for a preliminary order, Frye was obligated to preserve the error with an objection, proffer, or ruling on the record at the proper point during trial. See State v. Maurer, 15 Ohio St.3d 239, 259 (1984), fn. 14. Frye failed to do so. As such, he waived all but plain error. See State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, ¶ 115, citing
{¶94}
{¶95} It was not plain error for the trial court to deny Frye’s request for immunity for Patterson and Timothy under
{¶96} Second, the trial court did not have the statutory authority to grant 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, 2008-Ohio-6082, ¶ 53 (“There was no effort to call McKinney, to proffer McKinney as a witness, or any request to personally question McKinney on the issue of invoking the Fifth Amendment. Further, the record is void of any evidence to suggest that McKinney would have done anything other than invoke his Fifth Amendment rights.”). Likewise, there is no written request from the State requesting the trial court order the witnesses to testify. See
{¶97} Moreover, to the extent that Frye attacks the constitutionality of
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).
{¶98} 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
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.
{¶100} 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
{¶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.
{¶102} 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.
{¶103} Motions for new trial are governed by
{¶104} In support of his claim that a new trial is warranted, Frye argues that 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
{¶105} “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, 2016-Ohio-3524, ¶ 127, citing Clark v. Grant Med. Ctr., 10th Dist. Franklin No. 14AP-833, 2015-Ohio-4958, ¶ 50. “However, when a jury instruction contains an incorrect statement of the law, a reviewing court applies a mixed de novo and abuse of discretion standard of review.” Id., citing State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, ¶ 21, citing Kokitka v. Ford Motor Co., 73 Ohio St.3d 89, 93 (1995). “Thus, ‘[i]n examining errors in a jury instruction, a reviewing court must consider the jury charge as a whole and “must determine whether the jury charge probably misled the jury in a matter materially affecting the complaining party‘s substantial rights.“‘” Id., quoting Kokitka at 93, quoting Becker v. Lake Cty. Mem. Hosp. W., 53 Ohio St.3d 202, 208 (1990).
{¶106} The trial court‘s jury instruction is not an incorrect statement of law. 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
{¶107} Although it does not define “constructive possession,” Ohio Jury Instructions directs readers to a case defining constructive possession with the “able to” language. Ohio Jury Instructions, CR Section 525.11 (Rev. Dec. 10, 2016); State v. Mason, 8th Dist. Cuyahoga No. 78606, 2001 WL 755831, *5 (July 5, 2001). Further, the record reflects that the trial court relied on precedent of this court that is congruent to the case referenced in the Ohio Jury Instructions. (May 23-25, 2017 Tr., Vol. IV, at 570-571). See State v. Warren, 8th Dist. Cuyahoga No. 87726, 2006-Ohio-6415, ¶ 29 (“The trial court‘s instruction here substantially complies with that which this court has previously found permissible.“). It is significant that the trial court‘s jury instruction is consistent with this court‘s precedent and the Ohio Jury Instructions. See State v. Ellis, 10th Dist. Franklin No. 11AP939, 2012-Ohio-3586, ¶ 12 (noting that, although “the Ohio Jury Instructions are not binding legal authority, it is significant that the trial court‘s instructions here are also consistent with the language from the Ohio Jury Instructions“).
{¶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, 2013-Ohio-484, at ¶ 17-18 (rejecting Harris‘s argument that the jury instruction using the “able to” language “allowed the jury to find constructive possession simply if the defendant was able’ to exercise dominion and control“).
{¶109} As such, Frye was not prejudiced or prevented from having a fair trial. Thus, the trial court did not abuse its discretion by denying Frye‘s motion for a new trial.
{¶110} Frye‘s fourth assignment of error is overruled.
Assignment of Error No. V
Prosecutorial misconduct deprived Mr. Frye of a fair trial.
{¶112} “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, 2015-Ohio-3093, ¶ 31, citing State v. Smith, 14 Ohio St.3d 13, 14 (1984). “‘To establish prejudice, a defendant must show that a reasonable probability exists that, but for the prosecutor‘s improper remarks, the result of the proceeding would have been different. Thus, “[n]ot every intemperate remark by counsel can be a basis for reversal.“‘” Id., quoting State v. Porter, 4th Dist. Meigs No. 10CA15, 2012-Ohio-1526, ¶ 20, quoting Landrum, 53 Ohio St.3d at 112.
{¶113} Frye‘s two arguments are necessarily intertwined. That is, Frye takes 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. (Id. 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.
{¶114}
(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.
{¶115} The failure to comply with
“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.”
{¶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, 2009-Ohio-89, ¶ 45, citing State v. Gibson, 3d Dist. Allen No. 1-06-74, 2007-Ohio-3345, ¶ 12. As we previously stated, to constitute an abuse of discretion, the trial court‘s decision must be unreasonable, arbitrary, or unconscionable. Adams, 62 Ohio St.2d at 157-158. “‘[I]n determining the appropriate sanction, the trial court must make an inquiry into the circumstances of the discovery violation.‘” Stiles at ¶ 45, quoting Engle at ¶ 8, citing Lakewood v. Papadelis, 32 Ohio St.3d 1, 511 (1987), paragraph two of the syllabus. “Further, ‘the trial court “must impose the least severe sanction that is consistent with the purpose of the rules of discovery.“‘” Id., quoting Engle at ¶ 8, quoting Papadelis at paragraph two of the syllabus.
{¶117} The prosecution‘s violation of
{¶118} In this case, the trial court determined that the State did not violate the discovery rules; yet, it ordered the State to provide Patterson‘s criminal-history
{¶119} In 2010, the Supreme Court of Ohio “amended the discovery process in criminal cases.” State v. Athon, 136 Ohio St.3d 43, 2013-Ohio-1956, ¶ 17.
{¶120} 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. (Id. 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, 2009-Ohio-6387, ¶ 72 (“Although we find no abuse of discretion, we do not sanction the prosecutor‘s eleventh-hour recognition and disclosure of new evidence when that evidence could have been discovered and disclosed long before trial.“);
{¶121} Nonetheless, the trial court exercised proper discretion in concluding 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, 2007-Ohio-5776, ¶ 49 (“Orsborne‘s attorney did not request any continuances after reviewing the report nor did Orsborne‘s attorney request a
{¶122} Because the trial court did not abuse its discretion in concluding that 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
{¶123} In addition, Frye takes issue with the State‘s use of Patterson‘s 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
{¶124} 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.
(Id. 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, 2016-Ohio-1594, ¶ 105 (“Alleging prosecutorial misconduct, Obermiller again argues that the state placed ‘prejudicial innuendo’ in the record during Natasha Branam‘s testimony about images found on a computer in the Schneiders’ home.“). “To demonstrate prejudice in this context, ‘a defendant must
{¶125} Even if we assume without deciding that the State‘s questions were 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, 2003-Ohio-2194, ¶ 133. The trial court ordered the State to provide to Frye a copy of Patterson‘s criminal history and permitted Frye to cross-examine Investigator Harrod regarding Patterson‘s criminal history. Compare Hayes at ¶ 133 (concluding that Hayes could not demonstrate “the requisite prejudice resulting from [the State‘s] improper line of questioning” because “[i]n responding to the prosecution‘s line of questioning * * *, appellant was able to offer probative testimony on cross-examination“). Frye‘s cross-examination of Investigator Harrod informed the jury that Patterson has a “lengthy” criminal history. (May 23-25, 2017 Tr., Vol. II, at 298). Frye‘s cross-examination further revealed for the jury that Patterson‘s criminal history reflects that, although the disposition of the cases are unknown because they occurred in other states, Patterson was arrested for felony offenses that would have resulted in a weapons disability if he was convicted of those offenses. (Id. at 297-298). (See also id. at
{¶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.
{¶128} 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, 2011-Ohio-5733, ¶ 15, citing State v. Brown, 3d Dist. Allen No. 1-10-31, 2011-Ohio-1461, ¶ 36.
{¶129}
(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.
{¶130} 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.”
{¶131} Because it is dispositive, we will first address the separate-animus 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, 60 Ohio St.2d 126, 131 (1979).2 “‘Where an individual‘s immediate motive involves the commission of one offense, but in the course of committing that crime he must * * * commit another, then he may well possess but a single animus, and in that event may be convicted of only one crime.‘” Id., quoting Logan at 131.
{¶132} “‘Like all mental states, animus is often difficult to prove directly, 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.‘” Id., quoting State v. Whipple, 1st Dist. Hamilton No. C-110184, 2012-Ohio-2938, ¶ 38. “‘Courts should consider what
facts appear in the record that “distinguish the circumstances or draw a line of distinction that enables a trier of fact to reasonably conclude separate and distinct crimes were committed.“‘” Id., quoting Whipple at ¶ 38, quoting State v. Glenn, 8th Dist. Cuyahoga No. 94425, 2012-Ohio-1530, ¶ 9.
{¶133} Other Ohio courts of appeal have concluded that having-weapons-while-under-disability and tampering-with-evidence convictions do not merge. See State v. Lyons, 7th Dist. Jefferson No. 16 JE 008, 2017-Ohio-4385, ¶ 42; State v. Wilcox, 2d Dist. Clark No. 2013-CA-94, 2014-Ohio-4954, ¶ 20. See also State v. Ervin-Williams, 8th Dist. Cuyahoga No. 2014-T-0009, 2014-Ohio-5473, ¶ 88, fn. 1 (noting “that having weapons while under disability and tampering with evidence have been found to not be allied offenses” under the pre-Ruff analysis), citing State v. Thomas, 8th Dist. Cuyahoga No. 94042, 2010-Ohio-5237, ¶ 28, fn. 4 (concluding that having-weapons-while-under-disability and tampering-with-evidence convictions did not merge under the pre-Ruff analysis requiring courts to compare the elements of offenses without reaching the second-prong of the test, which “considers whether there was a separate animus supporting each conviction“). The cornerstone of the analysis is whether the evidence reflects that an offender acquired a firearm “at some time prior” to concealing the firearm to impair its availability as evidence in a proceeding or investigation. Compare Lyons at ¶ 42 (concluding that “Lyons acquired and possessed a firearm at some time prior to the fight at the club”
{¶135} Frye‘s eighth assignment of error is overruled.
{¶136} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
ZIMMERMAN, J., concurs.
SHAW, J., concurs in Judgment Only.
/jlr