State v. GaleState v. Gale
Robert L. Tobik
Chief Public Defender
BY: Erika B. Cunliffe
310 Lakeside Avenue
Suite 200
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Carl Sullivan
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
JOURNAL ENTRY AND OPINION
KATHLEEN ANN KEOUGH, J.:
{¶ 1} Defendant-appellant, Preston Gale (“Gale”), appeals his convictions of drug possession, drug trafficking, and possession of criminal tools. Finding merit to the appeal, we reverse, and vacate his convictions.
{¶ 2} In 2009, Gale was charged with drug trafficking, drug possession, and possession of criminal tools, each count containing forfeiture specifications relating to a cell phone, digital scale, and money. Gale waived
{¶ 3} Detective Miles testified that he and his partner were working undercover in the area of West 89th Street and Madison Avenue in the city of Cleveland when their unmarked police vehicle crossed paths with a green Buick LeSabre. As the vеhicles passed each other, Miles made eye contact with the driver, later identified as Gale. Miles stated that Gale looked “stunned” and then turned his head away very quickly. Thinking this was suspicious, Miles turned his police car around and began following Gale to run the license plate. As the police car approached the vehicle, Gale speeded up and then ran a stop sign. Once the traffic violation occurred, Miles activated his lights in pursuit. Gale turned into a driveway and then exited the vehicle, fleeing from the scene. Miles testified that after scaling a fence, Gale looked back, and Miles again got a good look at him. Gale fled from the scene without being apprehended.
{¶ 4} Miles and his partner went back to the abandoned vehicle and began inventorying it for towing purposes. Inside the vehicle they found a cell phone and a receipt from Rainbow Muffler. The receipt was dated this same day and it revealed that the vehicle being inventoried recently received maintenance service. The receipt also showed the name of “Preston Gale,” a cell phone number, and an address. The paperwork attached to it identified
{¶ 5} Miles then contacted radio and asked them to run the name “Preston Gale” with the address. From this request, the officers received a social security numbеr, which they entered into their computer. The social security number identified Gale, and the photograph that came up matched the person who had earlier fled from Miles and his partner. The officers also learned that Gale possibly had a warrant for his arrest.
{¶ 6} They, along with uniformed officers, then went to the address listed on the maintenance receipt to see if they could locate Gale. A young lady, allegedly named Brianna Gale answered the door. Miles testified that she appeared to know Gale, and she allowed them to enter the home. Miles asked Brianna whеre Gale’s room was located in the house, and she walked away from them, heading up the stairs. Miles testified that they stopped her and advised her that they wanted to “search for their own safety.” According to Miles, “[w]e were going to search the house for the male that had bailed out of the car.” When the prosecutor asked if they went to a specific room first, Miles responded that they went to the bedroom that was located at the top of the stairs.
{¶ 7} Inside the bedroom and in plain view, Miles observed a digital scale, two large rocks of suspected crack cocaine, an expired Ohio driver’s
{¶ 8} Following the State’s case, the trial court denied Gale’s
{¶ 9} The trial court found Gale guilty of all charges and forfeiture specifications, except the cell phone specification, and sentenced Gale to eight months in prison.
{¶ 10} Gale now appeals, raising as his sole assignment of error that the trial court violated his rights to due process and a fair trial because it relied on inadmissible and improper evidence in finding him guilty.
{¶ 11} Gale contends that the trial court improperly allowed Detective Miles to testify as an expert about the drug trade and allowed hearsay testimony to be admitted, specifically the Rainbow Muffler receipt found in the car and the interactions between the police officers and Brianna Gale.
{¶ 12} “The admission or exclusion of relevant evidence rests within the sound discretion of the trial court.” State v. Sage (1987), 31 Ohio St.3d 173, 510 N.E.2d 343, paragraph two of the syllabus. Therefore, “an appellatе court [that] reviews the trial court’s admission or exclusion of evidence must limit its review to whether the lower court abused its discretion.” State v. Finnerty (1989), 45 Ohio St.3d 104, 107, 543 N.E.2d 1233. A trial court abuses its discretion when its decision to admit or exclude the evidence was arbitrary, unreasonable, or unconscionable and not merely an error of judgment. State v. Xie (1992), 62 Ohio St.3d 521, 527, 584 N.E.2d 715, citing State v. Adams (1980), 62 Ohio St.2d 151, 157, 404 N.E.2d 1287.
{¶ 13} We note that Gale did not challenge during the trial whether Detective Miles was qualified to testify as an expert. Failure to object at the time of trial waives all but plain error. State v. Sutton, Cuyahoga App. No. 90172, 2008-Ohio-3677, ¶35, citing State v. Childs (1968), 14 Ohio St.2d 56, 263 N.E.2d 545. “A plain error does not exist unless, but for the error, the outcome of the trial would have been different.” State v. Joseph, 73 Ohio St.3d 450, 455, 1995-Ohio-288, 653 N.E.2d 285.
{¶ 14} Even if Gale hаd objected, Detective Miles’s testimony was not offered as expert testimony and
{¶ 15}
{¶ 16} Here, Miles testified that he had been a police officer with the city of Cleveland for nearly fifteen years, and assigned to the detective unit for the past three years. Previously he was assigned to the Community Service Unit, but detailed to the vice unit for about six months. While on vice, he handled drug, prostitution, and liquor cases. Miles testified that as a police officеr and detective, he was involved in “hundreds, if not in the thousands” of drug arrests and investigations. He testified that he was familiar with crack cocaine, and knew how it is packaged and its street value. He further testified that prior to packaging, crack cocaine is usually weighed by a digital or hand-held scale. Based on Miles’s experience, his testimony about the way drugs are prepared, packaged, and weighed, their street value, and forms of payment for drugs was properly admitted by the trial court under
{¶ 17} We also find that the trial court did not abuse its discretion in allowing Miles to testify regarding the receipt located in the vehicle. Again
{¶ 18} Here, the receipt was not used to prove the truth of the matter asserted, i.e., that the Buick LeSabre received maintenance from Rainbow Muffler. Miles testified that the information on the receipt was used to determine whether the name on the receipt matched the person who fled from them. Therefore, the information was used to explain subsequent investigative conduct of the officers in identifying the individual who fled from them earlier. See State v. Thomas (1980), 61 Ohio St.2d 223, 232, 400 N.E.2d 401. Accordingly, any testimony from the receipt was not hearsay, and thus properly admitted.
{¶ 19} We also find that the trial court properly excluded any hearsay testimony elicited regarding what Brianna Gale may have told the officers, either verbally or through her actions, by properly ruling on defense objections. Accordingly, the testimony that was before the trial court regarding the interactions between the officers and Brianna Gale was proper. However, we agree with Gale that the trial court acted erroneously in
{¶ 20} The trial court gave a lengthy explanation of its decision when it rendered its verdict. The trial judge, first noted that when the case began, he wondered whether the State could make its case with only the testimony of the officer. The trial court recognized the central issue in the case when it stated: “[but] for whatever reason, the crossing of the threshold and getting to the specific room in question is the рrincipal problematic issue in terms of the flow of the evidence for this Court. We don’t have the testimony of the young lady saying, ‘Yes, I said Preston lives here.’ We don’t have the testimony saying, ‘Yes, you may search the home.’ We don’t have her testimony saying, ‘That’s Preston’s room.’”
{¶ 21} In ultimately concluding that the evidence was sufficient to prove beyond a reasonable doubt the elements of the offenses charged, the court stated, “[b]ut what’s uncontroverted is that the police engage her in conversation. They go to a specific room. They find this evidence. Is that enough to circumstantially prove a charge true beyond a reasonable doubt? I conclude it is.”
{¶ 22} Appellate courts presume that a trial court will only consider relevant and admissible evidence in a bench trial. See State v. Chandler, Cuyahoga App. No. 81817, 2003-Ohio-6037, ¶17, citing State v. Post (1987), 32 Ohio St.3d 380, 384, 513 N.E.2d 754. When the trial court is the trier of fact, the judge is presumed capable of disregarding improper hearsay evidence and unless it is demonstrated that the court relied on inadmissible hearsay, a conviction will not be reversed. In re Sims (1983), 13 Ohio App.3d 37, 41, 468 N.E.2d 111.
{¶ 23} Here, however, it is apparent that in rendering its verdict, the trial court relied on testimony that had been deemed inadmissible. During the trial, the court sustained a number of objections made by defense counsel, and excluded Miles’s testimony regarding (1) the relationship between Brianna and Gale, (2) whether Brianna indicated if Gale lived in the house, (3) whether Brianna indicated if Gale was currently at the house, and (4) whether Brianna indicated verbally or non-verbally where Gale’s bedroom was lоcated in the house.
{¶ 24} The only admissible evidence that linked Gale to the house was the address on the Rainbow Muffler receipt. The only admissible testimony that linked Gale to the bedroom where the drugs were found was Gale’s expired driver’s license on the dresser next to the drugs. No other testimony was given that the bedroom belonged to Gale or that he had control over that bedroom. All other testimony was ruled inadmissible by sustained defense objections. Therefore, removing all of the inadmissible testimony from consideration, we find that the trial court only had before it the testimony
{¶ 25}
{¶ 27} Because the evidence was insufficient for a conviction of possession of drugs and criminal tools, the evidence is equаlly insufficient for drug trafficking.
{¶ 28} Accordingly, we sustain Gale’s assignment of error and find that the trial court improperly considered inadmissible testimony in finding him guilty of the offenses, thus depriving him of his rights to due process and a fair trial. The judgment of the trial court is reversed and remanded with instructions to vacate Gale’s convictions.
{¶ 29} This cause is reversed and remanded for proceedings consistent with this opinion.
It is ordered that appellant recover from appellee his costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
KATHLEEN ANN KEOUGH, JUDGE
PATRICIA A. BLACKMON, P.J., and
LARRY A. JONES, J., CONCUR