STATE OF OHIO, PLAINTIFF-APPELLEE, v. CURTIS LEE GARTRELL, DEFENDANT-APPELLANT.
CASE NO. 9-14-02
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY
November 24, 2014
[Cite as State v. Gartrell, 2014-Ohio-5203.]
Trial Court No. 13-CR-0162
Judgment Affirmed
Date of Decision: November 24, 2014
APPEARANCES:
Brian G. Jones for Appellant
Brent Yager for Appellee
{1} Dеfendant-appellant, Curtis Lee Gartrell (“Gartrell“), appeals the December 18, 2013 judgment entry of sentence of the Marion County Court of Common Pleas. He argues that the trial court erred by denying his motion to suppress, that his convictions were based on insufficient evidence and against the manifest weight of the evidence, and that the trial court erred by overruling his motion to dismiss the counts against him based on a speedy-trial violation under
{2} On April 10, 2013, the Marion County Grand Jury indicted Gartrell on Count One of trafficking in heroin in violation of
{3} The trial court held an arraignment hearing on April 15, 2013. (See Doc. No. 9). Gartrell entered a plea of not guilty. (Id.).
{4} On April 17, 2013, Gartrell filed a “request for discovery” and a “request by defendant for notice of prosecutor‘s intention to use evidence.” (Doc.
{5} On April 25, 2013, the trial court set a trial date of June 25, 2013. (Doc. No. 18).
{6} On May 3, 2013, Gartrell filed a “motion for extension of time to file motion to suppress.” (Doc. No. 19).
{7} On May 6, 2013, plaintiff-appellee, the State of Ohio, filed its “response to discovery, request for discovery, notice of intention to use evidence, and notice of intent to impeach with crimes older than ten years.” (Doc. No. 20). Also on May 6, 2013, the State filed a bill of particulars. (Doc. No. 21).
{8} On May 8, 2013, the trial court granted Gartrell‘s motion for an extension of time to file a motion to suppress, ordering that Gartrell file his motion to suppress by May 28, 2013. (Doc. No. 22).
{9} On May 28, 2013, Gartrell filed a “motion to suppress and exclude evidence.” (Doc. No. 23). In it, Gartrell moved for the suppression of evidence related to “[t]he stop of the vehicle [Gartrell] was in,” “[a]ny statements and comments made by [Gartrell],” “[a]ny and all evidence seized from the vehicle,” and “[a]ny and all evidence seized from [Gartrell‘s] person.” (Id.). Gartrell argued that officers “did not have lawful cause to detain and arrest” him, that he “never knowingly consented to a search,” that the search of him “was performed
{10} On June 4, 2013, Gartrell moved to continue the jury trial scheduled for June 25, 2013. (Doc. No. 36).
{11} On June 10, 2013, the trial court held a hearing on Gartrell‘s motion to suppress. (June 10, 2013 Tr. at 4). The taxi-cab driver was not present to testify on June 10, 2013, so counsel for Gartrell requested an opportunity to locate him so that he could testify. (Id. at 4-5, 109). At Gartrell‘s counsel‘s request, the trial court continued the hearing until June 27, 2013, at which time Gartrell offered the testimony of the cab driver. (June 27, 2013 Tr. at 3-5); (Doc. No. 38). At the conclusion of the hеaring, the trial court took Gartrell‘s motion to suppress under advisement. (June 27, 2013 Tr. at 19). Gartrell filed a written closing argument on July 8, 2013. (Doc. No. 42).
{12} On July 18, 2013, the trial court filed an entry overruling Gartrell‘s motion to suppress and exclude evidence. (Doc. No. 43).
{13} On July 31, 2013, the trial court set a new trial date of September 24, 2013. (Doc. No. 44).
{14} On September 9, 2013, Gartrell‘s counsel filed a motion to withdraw from representing Gartrell. (Doc. No. 45). On September 12, 2013, the trial court
{15} On October 3, 2013, Gartrell filed a “demand for discovery,” a “demand for testimony and independent laboratory analysis,” a “response to the State of Ohio‘s demand for discovery,” and a “request for notice of intent to use evidence.” (Doc. Nos. 50, 51, 52, 53).
{16} On October 11, 2013, the trial court set a new trial date of November 14, 2013. (Doc. No. 54).
{17} On October 29 and 31 and November 6, 2013, Gartrell requested that the clerk of courts issue subpoenas duces tecum to two employees of the Ohio Bureau of Criminal Identification and Investigation (“BCI“), Scott Dobransky (“Dobransky“) and Larry Rentz (“Rentz“).1 (Doc. Nos. 55, 57, 63).
{18} On November 1, 2013, the State filed a supplemental response to Gartrell‘s discovery requests. (Doc. No. 59).
{19} On November 7, 2013, the State filed a superseding indictment, indicting Gartrell on: Count One оf trafficking in heroin in violation of
{20} Also on November 7, 2013, Gartrell filed a “motion and proposed order for discovery sanctions” under
{21} On November 8, 2013, the trial court set a “motion hearing” on November 12, 2013. (Doc. No. 72).
{22} Also on November 8, 2014, the State filed a response to Gartrell‘s motion for discovery sanctions. (Doc. No. 73).
{23} On November 12, 2013, the trial court arraigned Gartrell on the superseding indictment, and Gartrell entered pleas of not guilty. (Doc. No. 74).
{24} On November 21, 2013, the trial court set a new trial date of December 3, 2013. (Doc. No. 80).
{26} On December 3, 4, and 5, 2013, the trial court held a jury trial on the superseding indictment. (Trial Tr., Vol. One, at 9-10); (Doc. No. 112). The jury found Gartrell guilty of both counts in the superseding indictment. (Trial Tr., Vol. Five, at 738-741); (Doc. Nos. 109, 110).
{27} After the jury returned its verdict, the trial court sentenced Gartrell. (Trial Tr., Vol. Five, at 743). The trial court merged Counts One and Two for purposes of sentencing, and the State elected to proceed with sentencing on Count One. (Id. at 774); (Doc. No. 112). The trial court sentenced Gartrell to, among other things, six years in prison and a fine. (Id. at 766); (Id.). The trial court filed its judgment entry of sentence on December 18, 2013. (Doc. No. 112).
{28} On January 17, 2014, Gartrell filed a notice of appeal. (Doc. No. 123). He raises four assignments of error for our review. We will address the second and third assignments of error together.
Assignment of Error No. I
Trial court committed reversible error by denying defendant‘s motion to suppress evidence where officers did not have reasonable suspicion nor [sic] probable cause to follow the vehicle transporting appellant Gartrell; nor did officers have reasonable suspicion nor [sic] probable cause to subsequently initiate a traffic stop of the vehicle, in violation of the Fourth
Amendment of the U.S. Constitution and Article I, Section 14 of the Ohio Constitution. (Tr., Vol. I-III, passim.)
{29} In his first assignment of error, Gartrell argues that the trial court erred by denying his motion to suppress because: officers did not have reasonable suspicion or probable cause to follow and stop the taxi cab; one of the officers exceeded the scope of the traffic stop when he immediately questioned Gartrell concerning whether he had marijuana on his person and then searched the taxi cab‘s trunk; and officers failed to timely inform Gartrell of his Miranda rights because he was “effectively in custody from the moment of the stop.” (Appellant‘s Brief at 18).
{30} 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 independently determine whether the facts satisfy the
{31} In its entry denying Gartrell‘s motion to suppress, the trial court relied on many facts, all of which were supported by competent, credible evidence presented at the suppression hearing. (See July 18, 2013 Entry, Doc. No. 43). At the suppression hearing on June 10, 2013, the State presented the testimony of five law-enforcement officers. At the continuation of the suppression hearing on June 27, 2013, Gartrell offered the testimony of one witness, the taxi-cab driver.
{32} The State‘s first witness was Major Bill Collins (“Collins“), who heads the investigative bureau at the City of Marion Police Department. (June 10, 2013 Tr. at 7). He testified that on March 26, 2013, he was returning to Marion from Columbus, Ohio in his personal vehicle when he noticed a yellow, Columbus-based taxi cab in front of him. (Id. at 8-12). Collins became suspicious of the cab and suspected it might contain drugs, so he followed it and called Detective Andrew Isom (“Isom“) of the City of Marion Police Department‘s drug unit. (Id. at 11-12). Cоllins testified that he paced the cab for “about six blocks” and determined that the cab was going 45 miles per hour in a 35-miles-per-hour zone. (Id. at 13-14). Collins informed Isom and Detective Dan Ice (“Ice“), who approached in an unmarked vehicle, of the cab‘s excessive speed and instructed them to stop the cab for speeding. (Id. at 14-16). Collins allowed Isom and Ice to
{33} On cross-examination, Collins testified that “it was unusual just to see [the cab] in Marion County period,” but once it exited the highway and turned toward the city of Marion, “it heightened [his] suspicion even further.” (Id. at 21). According to Collins, within the last year, the Ohio State Highway Patrol “stopped a cab coming from Columbus to Marion and got over 1,200 bindles of heroin out of it.” (Id. at 21-22). That was not one of Collins‘s cases, but he “was familiar with it.” (Id. at 22).
{34} Isom testified that on March 26, 2013, he was riding with Ice in Ice‘s unmarked vehicle when Collins called his cell phone and said he was pacing a suspicious cab at approximately 45 miles per hour. (Id. at 32-33). According to Isom, he and Ice approached the cab in the opposite direction, turned around, and began to follow the cab, with Collins‘s vehicle behind them. (Id. at 33-34). Isom visually estimated the cab‘s speed to be “right around 45” miles per hour when he and Ice approached it from the opposite direction. (Id. at 34-35). Then, when he and Ice were following the cab, Isom noted that Ice‘s speedometеr read “like 45 or 46” miles per hour and the cab was neither gaining nor losing distance on them—they were “pretty much keeping the same distance,” according to Isom. (Id.).
{35} Isom testified that he contacted Christy Utley (“Utley“), a deputy sheriff with the Marion County Sheriff‘s Office who was in the area in a marked cruiser, and told her to stop the cab for speeding, which she did. (Id. at 36-37). Isom and Ice pulled up behind Utley‘s cruiser, and he noticed two occupants in the cab—the driver and a right-rear passenger, who was later identified as Gartrell. (Id. at 37). Isom approached the passenger side of the cab and motioned for the driver to put the passenger window down, which he did. (Id. at 38). Isom began a conversation with Gartrell and noticed “a strong odor of [unburnt, raw] marijuana.” (Id.). Isom testified that based on “[h]undreds and hundreds of cases [involving] marijuana” in which he has participated, his training in the academy, and his years of experience in the drug unit, he is able to distinguish between the odors of burning and unburnt, raw marijuana. (Id. at 38-39).
{36} Isom testified that he asked Gartrell if he had any marijuana on his person, and Gartrell admitted that he did. (Id. at 39). According to Isom, he asked Gartrell to step out of the сab, and Gartrell took the marijuana out of his pocket
{37} Isom asked Gartrell if “he had any luggage on him,” and Gartrell said, “[N]o,” despite Gartrell telling Isom earlier that he was from New Jersey and was on his way to his sister‘s house to visit for more than a week. (Id. at 42-43). Isom then asked the cab driver if Gartrell had any luggage, and the driver said, “[Y]eah.” (Id. at 43). At that point, the driver “popped the trunk” for Isom, the trunk lid came all the way up, and Isom was able to see a suitcase in the trunk. (Id. at 44-45). According to Isom, Gartrell told Isom that the luggage was his. (Id. at 45). Isom asked Gartrell if he could look in Gartrell‘s luggage, and Gartrell responded, “Yes.” (Id. at 46). Isom opened the luggage while it was still in the trunk, began removing clothes, and, when he noticed something that felt odd in the bottom of the suitcase, unzipped the liner of the suitcase. (Id. at 46-47, 54-55). Isom testified that at that point, Gartrell “took off running.” (Id. at 47).
{38} Isom ultimately caught up to and physically restrained Gartrell with the help of Ohio State Highway Patrol Trooper Matt Ruth (“Ruth“), who happened
{39} On cross-examination, Isom testified that in 2000 or 2001, he received training concerning visual speed estimation, but “[b]esides experience,” he has not had any training “regarding visual estimation or pacing” since 2001. (Id. at 56). Isom testified that Ice was driving the vehicle and that he was a
{40} On re-direct examination, Isom testified that when Gartrell began running, Isom commanded him to stop and did not feel Gartrell was free to leave because even though Gartrell was not under arrest, Isom had not completed his investigation. (Id. at 65-66). Isom testified that he arrested Gartrell for obstructing official business. (Id. at 66).
{41} Utley testified that on March 26, 2013, she was operating a marked cruiser and first learned of the suspicious cab from Collins, who was following the cab, then from Isom. (Id. at 68-69). Utley “stay[ed] back until they [gave her] a reason to stop the vehicle.” (Id. at 69). According to Utley, “[t]hey said they had paced the vehicle going 45 in a 35” miles-per-hour zone. (Id.). Utley used her
{42} Utley testified that at some point during the stop, she joined Isom, who was talking to Gartrell. (Id. at 72). According to Utley, Gartrell gave Isom the marijuana on his person and consented to Isom searching his person, at which time Isom found money on Gartrell. (Id.). Utley and Rowe began preparing a summons to issue to Gartrell for misdemeanor possession of marijuana. (Id. at 72, 74). Utley heard Gartrell deny having any luggage and observed the cab driver respond affirmatively when Isom asked him if Gartrell had any luggage. (Id. at 72-73). According to Utley, the cab driver opened the trunk, which she saw contained a couple of bags and a blue suitcase. (Id. at 73). Utley testified that Gartrell told Isom, “[Y]eah, go ahead,” when Isom asked him if he could search his suitcase. (Id. at 74).
{43} According to Utley, as Isom was looking in the suitcase, Gartrell “took off running,” and Isom and Ice pursued Gartrell on foot. (Id.). Utley testified that she stayed at the cab and finished searching the suitcase, in which she initially found two duct-taped packages and then found a third duct-taped package,
{44} On cross-examination, Utley testified that she never paced the cab and relied on Isom‘s statement to her that he paced the cab. (Id. at 77). She believed Isom was riding with Ice, but she did not know whether Isom or Ice was driving. (Id. at 78). Utley knew Collins paced the cab, but it was Isom who asked her to pull the cab over. (Id.). Utley did not smell the odor of marijuana coming from the cab while she was speaking with the cab driver, but she did notice the odor when she went around the vehicle to join Isom while he was speaking with Gartrell. (Id. at 80). Utley testified that no one read Gartrell his rights as Utley and Rowe prepared a summons for marijuana possession. (Id. at 81). Utley recorded the cab driver‘s name and the cab‘s license-plate number and released the driver after giving him a warning. (Id.). Before the incident involving Gartrell, Utley did not have knowledge of “Columbus cab companies driving people around” in Marion. (Id. at 83).
{45} Rowe testified that on March 26, 2013, he stopped to assist the officers in the traffic stop involving the cab and, at Isom‘s request, began filling
{46} Ruth testified that he joined the pursuit of Gartrell and “deployed [his] taser which knocked him down.” (June 10, 2013 Tr. at 101). Ruth “tried to grab a hold of [Gartrell], but due to the snow he rolled, and he got back up and took off running again.” (Id.). Ruth “then activated the taser again,” but Gartrell “still kept running” and jumped onto a fence, at which point Ruth “was able to get around him” and “wrestled” Gartrell to the ground. (Id.). In his report, Ruth
{47} After the State presented its witnesses, the trial court continued the hearing at Gartrell‘s request so that he could locate the cab driver and present his testimony. (June 10, 2013 Tr. at 110). At the June 27, 2013 continuation of the suppression hearing, Gartrell called the cab driver as a witness. (June 27, 2013 Tr. at 5). The cab driver testified that for a fare of $100, he agreed to take Gartrell from the bus station in Columbus to Marion. (Id. at 8-9, 11). According to the driver, after he exited the highway and turned toward Marion, he was not stopped by any red lights before he was stopped by a deputy sheriff. (Id. at 11-12). The driver testified that the deputy sheriff approached him and told him that she pulled him over for speeding, and he gave her his driver‘s license but said nothing in response. (Id. at 12-13). When Gartrell‘s counsel asked him if he was speeding that day, the cab driver responded, “No, I didn‘t speed.” (Id. at 12).
{48} According to the cab driver, another officer asked him, “[I]s there any suitcase in your trunk?” (Id. at 13). The cab driver testified that he responded, “[Y]es,” and “popped the trunk.” (Id.). The cab driver saw Gartrell “[run] from officers,” then identified for the deputy sheriff what in the trunk was his and what was Gartrell‘s. (Id. at 14). According to the cab driver, the deputy sheriff took Gartrell‘s belongings back to her cruiser and told the cab driver he
{49} The trial court took the matter under advisеment and ultimately denied Gartrell‘s motion to suppress. (See July 18, 2013 Entry, Doc. No. 43). In its entry, the trial court reasoned that it was permissible for Utley to rely on Isom‘s pace of the cab in stopping the cab, noting that “the information in a radio dispatch can provide the sole basis for an investigatory stop only when the officer who issued the dispatch had a reasonable suspicion justifying the stop.” (Id. at 2, citing State v. Goodrich, 114 Ohio App.3d 645 (3d Dist.1996)). Finding that Isom received “proper training at estimating speed of vehicles” and paced the cab at 45 or 46 miles per hour over a nine or ten-block distance, the trial court concluded that “there was sufficient cause” for Utley to stop the cab based on Isom‘s radio transmission. (Id. at 3). The trial court also found that despite Gartrell‘s arguments to the contrary, testimony at trial demonstrated that Gartrell consented to the searches of his person and suitcase. (Id. at 4). The trial court concluded that Gartrell‘s statements before and after officers arrested him and read him his Miranda rights were admissible because Gartrell was not under custodial arrest “until after being detained at the end of a foot pursuit.” (Id.).
{50} Gartrell‘s arguments on appeal are similar to those he made to the trial court. He challenges the constitutionality of: the traffic stop, Isom‘s
{51} The Fourth Amendment to the United States Constitution and Article I, Section 14 of the Ohio Constitution generally prohibit warrantless searches and seizures, and any evidence that is obtained during an unlawful search or seizure will be excluded from being used against the defendant. State v. Jenkins, 3d Dist. Union No. 14-10-10, 2010-Ohio-5943, ¶ 9; State v. Steinbrunner, 3d Dist. Auglaize No. 2-11-27, 2012-Ohio-2358, ¶ 12. “Neither the Fourth Amendment to the United States Constitution nor Section 14, Article I of the Ohio Constitution explicitly provides that violations of its provisions against unlawful searches and seizures will result in the suppression of evidence obtained as a result of such violation, but the United States Supreme Court has held that the exclusion of evidence is an essential part of the Fourth Amendment.” Jenkins at ¶ 9, citing Mapp v. Ohio, 367 U.S. 643, 649 (1961) and Weeks v. United States, 232 U.S. 383, 394 (1914).
Case No. 9-14-02{52} “A traffic stop constitutes a seizure and implicates the protections of the
{53} “The Supreme Court of Ohio has defined ‘reasonable articulable suspicion’ as ‘specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion [upon an individual‘s freedom of movement].‘” State v. Shaffer, 3d Dist. Paulding No. 11-13-02, 2013-Ohio-3581, 18, quoting Bobo at 178. “In determining whether reasonable articulable suspicion exists, a reviewing court must look to the totality of the circumstances.” Steinbrunner at 14, citing State v. Andrews, 57 Ohio St.3d 86, 87-88 (1991). “Under this analysis, a court should consider ‘both the content of
{54} “An officer does not have to have personally observed a traffic violation or criminal activity to justify detaining someone; rather, an officer can rely on information transmitted to him through a dispatch or a flyer.” Steinbrunner, 2012-Ohio-2358, at ¶ 15, citing Weisner at 297. “[W]here a police officer conducts a traffic stop at the request of another officer, it is the knowledge of the requesting officer that determines the presence of articulable suspicion or probable cause[:]
A police officer need not always have knowledge of the specific facts justifying a stop and may rely, therefore, upon a police dispatch or flyer. * * * This principle is rooted in the notion that “effective law enforcement cannot be conducted unless police officers can act on directions and information transmitted by one officer to another and that officers, who must often act swiftly, cannot be expected to cross-examine their fellow officers about the foundation for the transmitted information.” * * * When a dispatch is involved,
therefore, the stopping officer will typically have very little knowledge of the facts that promрted his fellow officer to issue the dispatch. The United States Supreme Court has reasoned, then, that the admissibility of the evidence uncovered during such a stop does not rest upon whether the officers relying upon a dispatch or flyer ‘were themselves aware of the specific facts which led their colleagues to seek their assistance.’ It turns instead upon ‘whether the officers who issued the flyer’ or dispatch possessed reasonable suspicion to make the stop.”
(Emphasis sic.) McClellan at ¶ 39, quoting Weisner at 297.
{55} “A police officer‘s visual perception that a motor vehicle was speeding, coupled with years of experience, constitutes specific and articulable facts which provide the police officer with reasonable grounds to make an investigatory stop.” State v. Hammen, 5th Dist. Stark No. 2012CA00009, 2012-Ohio-3628, ¶ 27, quoting State v. Horn, 7th Dist. Belmont No. 04 BE 31, 2005-Ohio-2930, ¶ 19. See also State v. Hoder, 9th Dist. Wayne No. 03CA0042, 2004-Ohio-3083, ¶ 15; State v. Porter, 11th Dist. Portage No. 99-P-0061, 2000 WL 1335567, *4 (Sept. 15, 2000). In addition, “Ohio courts have found that pacing a car is an acceptable manner for determining speed.” Hammen at ¶ 27, quoting Horn at ¶ 19. Finally, whether an officer “had an ulterior motive for the traffic
{56} “Generally, when investigating a minor traffic violation, a police officer may only detain an individual ‘for the length of time necessary to check the driver‘s license, vehicle‘s registration, and the vehicle‘s license plate.‘” Dillehay, 2013-Ohio-327, at ¶ 15, quoting State v. Hollins, 3d Dist. Hancock No. 5-10-41, 2011-Ohio-5588, ¶ 30. “When a lawfully stopped vehicle contains passengers, the
{58} “A trunk and a passenger compartment of an automobile are subject to different standards of probable cause to conduct searches.” State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, ¶ 51. “The odor of burnt marijuana in the passenger compartment of a vehicle does not, standing alone, establish probable cause for a warrantless search of the trunk of the vehicle.” (Emphasis added.) Id. at ¶ 52, citing United States v. Nielsen, 9 F.3d 1487 (10th Cir.1993). “However, where an officer detects a strong odor of raw marijuana, but no large amount is found within the passenger compartment of the vehicle, the officеr has probable cause to search the trunk,” including the trunk‘s contents. (Emphasis added.)
{59} Moreover, a vehicle occupant‘s production of drugs gives an officer probable cause to believe the vehicle contains evidence of contraband. See State v. Young, 12th Dist. Warren No. CA2011-06-066, 2012-Ohio-3131, ¶ 33. See also City of Westlake v. Gordon, 8th Dist. Cuyahoga No. 100295, 2014-Ohio-3031, ¶ 17 (“[T]he criminal tool establishing probable cause that a crime occurred or was occurring was retrieved by a passenger of the car and turned over to the officer, justifying the warrantless search of the vehicle.“); United States v. Deysie, D.Ariz. No. CR-14-8112-001-PCT-G, 2014 WL 3887873, *4 (Aug. 7, 2014) (“An officer with probable cause can search the entire car for contraband. * * * [A] person stopped by officers cannot preempt a search and remove probable cause by volunteering some contraband to the officer. * * * [The officer] did not have to accept [the defendant‘s] claim that all of his marijuana was in the bag he handed over.“).
{61} Regarding Miranda, a suspect in police custody “must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of
{62} “In order to determine whether a person is in custody for purposes of receiving Miranda warnings, courts must first inquire into the circumstances surrounding the questioning and, second, given those circumstances, determine whether a reasonable person would have felt that he or she was not at liberty to terminate the interview and leave.” Id. at ¶ 38, quoting State v. Hoffner, 102 Ohio St.3d 358, 2004-Ohio-3430, ¶ 27. “The first inquiry is distinctly factual.” Id., citing Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457 (1995).
{63} “Once the factual circumstances surrounding the interrogation are reconstructed, the court must apply an objective test to resolve ‘the ultimate inquiry’ of whether there was a ‘formal arrest or restraint on frеedom of movement’ of the degree associated with a formal arrest.” Id., quoting Hoffner at ¶ 27. “The subjective views harbored by either the interrogating officers or the person being questioned are of no consequence in the Miranda analysis.” Id.,
{64} “The temporary detention involved in a traffic stop, however, is not considered ‘custody’ triggering the Miranda protections of
{65} “Statements voluntarily made after the Miranda warnings have been given to a defendant are admissible in evidence.” State v. Price, 8th Dist. Cuyahoga No. 98410, 2013-Ohio-1542, ¶ 23, citing State v. Osborne, 50 Ohio St.2d 211 (1977). “A suspect‘s decision to waive his
{66} We begin our analysis by examining whether Isom, on whose dispatch Utley relied in stopping the taxi cab, had a reasonable, articulable suspicion that the cab driver committed a traffic violation. The trial court concluded that Isom “received proper training as to speed detection” and that “Utley made her stop based upon the speed pace of Detective Isom, which information had been transmitted to her by radio.” (July 18, 2013 Entry, Doc. No. 43, at 2). Indeed, Isom testified that he twice estimated that the cab was traveling in excess of the posted speed limit. Specifically, he visually estimated the speed of the cab at 45 miles per hour, in excess of the 35-miles-per-hour speed limit, as he and Ice approached the cab from the opposite direction. Once they turned around and were following the cab, Isom observed the cab travel for an uninterrupted, nine or ten-block distance, during which time he and Ice maintained the same distance behind the cab and traveled at a speed of 45 or 46 miles per
{67} We conclude that these facts satisfy the applicable legal standard governing the stop of the cab. Isom‘s visual perception that the cab was speeding and his pace of the cab, coupled with his training and years of experience, constituted specific and articulable facts giving rise to a reasonable, articulable suspicion that the cab driver committed a traffic violation. See Hammen, 2012-Ohio-3628, at ¶ 27. Isom possessed a reasonable, articulable suspicion justifying a stop of the cab, and he communicated that reasonable, articulable suspicion to Utley, who received the communication and made the stop based on Isom‘s reasonable, articulable suspicion. See McClellan, 2010-Ohio-314, at ¶ 39. Therefore, Utley‘s stop of the cab was not unconstitutional.
{68} To the extent Gartrell argues that the stoр of the cab for speeding was a pretext to investigate the cab‘s passenger, we reject Gartrell‘s argument. Any ulterior motives for the traffic stop are irrelevant to the determination of whether the officers possessed a reasonable, articulable suspicion justifying the stop. See McGinnis, 2006-Ohio-2281, at ¶ 10, citing Erickson, 76 Ohio St.3d at 11. To the
{69} We next address Gartrell‘s argument that Isom exceeded the scope of the stop when he “immediately questioned” Gartrell after Utley stopped the cab. (Appellant‘s Brief at 14). We concluded above that Utley‘s stop of the cab was not unconstitutional. To the extent Gartrell argues that his constitutional rights were violated because he was detained in the cab during a traffic stop, we reject his argument because officers may detain passengers of a lawfully stopped vehicle for the duration of the lawful detention of the driver. Fry, 2007-Ohio-3240, at ¶ 16. Utley was speaking with the cab driver concerning why she stopped him
{70} The trial court concluded that “once Detective Isom detected the strong odor of marihuana eminating [sic] from the cab, there was sufficient cause for the detective to order the Defendant out of the vehicle.” (July 18, 2013 Entry, Doc. No. 43, at 4). Indeed, as Isom was speaking with Gartrell after the cab driver opened the rear, passenger-side window, Isom noticed a “strong odor” of unburnt, raw marijuana—an odor Isom recognized based on his training and experience. At that point, Isom possessed additional facts from which it was reasonable to infer additional criminal activity, and Isom was permitted to lengthen the duration of the stop to investigate his suspicions. Dillehay, 2013-Ohio-327, at ¶ 15; Minyoung, 2012-Ohio-411, at ¶ 15; Runyon, 2011-Ohio-263, at ¶ 13-16. Therefore, Isom‘s continued detention of Gartrell to investigate the marijuana odor and Isom‘s questions to Gartrell concerning marijuana did not violate Gartrell‘s constitutional rights.
{71} We next address Gartrell‘s argument that “Isom‘s search of the trunk exceeded the scope of the initial stop and any expanded scope provided by the odor of the subsequently surrendered marijuana.” (Appellant‘s Brief at 15). We reject Gartrell‘s argument. After Isom detected the strong odor of marijuana, he
{72} The combination of the “strong odor” of unburnt, raw marijuana, Gartrell‘s production of marijuana from his pocket, Isom‘s finding over $1,700 on Gartrell‘s person, and Gartrell‘s apparent untruthfulness concerning his luggage created probable cause for Isom to search the cab‘s interior and trunk, as well as the contents of the interior and trunk, for contraband. Price, 2013-Ohio-130, at ¶ 16-18; Franklin, 2014-Ohio-1422, at ¶ 24; Young, 2012-Ohio-3131, at ¶ 32-36. Gartrell‘s voluntary production of the marijuana on his person did not remove this probable cause. See Deysie, 2014 WL 3887873, at *4. In addition, Gartrell does not contest the officers’ search of his luggage, and the evidence presented at the suppression hearing showed that Gartrell consented to a search of his luggage by responding, “Yes,” when Isom asked if he could look in Gartrell‘s luggage.
{74} First, Gartrell was not in “custody” for purposes of Miranda simply because he was in a vehicle stopped by authorities. Jolly, 2008-Ohio-6547, at ¶ 13. Second, Isom‘s roadside questioning of Gartrell did not amount to a custodial interrogation for purposes of Miranda. Engle, 2013-Ohio-1818, at ¶ 26; Surgener, 1995 WL 141519, at *3. Third, Gartrell‘s standing by while officers prepared his summons for misdemeanor marijuana possession did not amount to “custody” under Miranda. See Engle at ¶ 26; Keene, 2009-Ohio-1201, at ¶ 17.
{76} Isom testified that with the help of Ruth, he caught up to and physically restrained Gartrell. However, no evidence introduced at the suppression hearing suggests Gartrell‘s cognitive abilities were adversely impacted by his flight and capture. Notably, despite Gartrell‘s contention, he was not “Taserеd into submission.” Rather, he got back up and continued to flee after Ruth deployed the Taser the first time. Ruth‘s subsequent deployment of the Taser had no effect on Gartrell. Also, despite Gartrell‘s contention that he was “assaulted by police officers,” the evidence introduced at the suppression hearing reveals that officers did not engage in any coercive action for purposes of the Miranda analysis. Gartrell was attempting to scale a fence and would not let go
{77} After Isom read Gartrell his Miranda rights, Isom asked Gartrell why he ran, and, according to Isom, Gartrell responded by stating simply that “he had drugs in his bag.” When Isom then asked what was in the two taped bricks that Utley found in Gartrell‘s suitcase, Gartrell responded, “[A]bout 500 bindles of heroin.” Isom asked Gartrell these questions as he was walking him back to the patrol car. The length, intensity, and frequency of the interrogation were therefore minimal. Nor was Gartrell mistreated—the officers did only what they needed to do to capture Gartrell. The record does not reflect that Isom or any other officer threatened or coerced Gartrell or induced him to respond. Gartrell‘s answers to both of Isom‘s questions were direct and responsive, suggesting Gartrell‘s cognition was not impaired. What is more, Gartrell possessed the mental alertness to inform the officers that “[h]e wanted to give up his property to his sister.” (June 10, 2013 Tr. at 53). Finally, while the suppression-hearing record does not reveal Gartrell‘s age or prior criminal experience, the record reflects that Gartrell, who is from New Jersey, had the ability to travel by Greyhound bus to Columbus, then by taxi cab to Marion. (Id. at 54). For these reasons, we conclude that the State
{78} The trial court did not err in denying Gartrell‘s motion to suppress.
{79} Gartrell‘s first assignment is overruled.
Assignment of Error No. II
Appellant Gartrell‘s convictions for trafficking and possession of heroin in an amount greater than 100 but less than 500 “bindles” were against the manifest weight of the evidence resulting in a miscarriage of justice, in violation of Section 3, Article IV of the Ohio Constitution, because the manifest weight of the evidence showed Mr. Gartrell possessed at most only 28 “bindles.” (Tr., Vol. III, p. 449-491.)
Assignment of Error No. III
Appellant Gartrell‘s convictions of trafficking and possession were based upon insufficient evidence as the State failed to prove beyond a reasonable doubt that Appellant Gartrell trafficked or possessed more than 28 “bindles,” thereby violating the [sic] his rights under the Due Process Clause of the
Fourteenth Amendment andArticle I, Section 16 of the Ohio Constitution . (Tr., Vol. III, p. 449-491.)
{80} In his second and third assignments of error, Gartrell argues that his convictions for trafficking in heroin and possession of heroin were against the manifest weight of the evidence and supported by insufficient evidence. Specifically, Gartrell argues that Rentz, the BCI employee who tested the contents
{81} “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 as stated in 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 credibility of witnesses, as both are functions reserved for the trier of fact.” State v. Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-4775, ¶ 33, citing State v. Williams, 197 Ohio App.3d 505, 2011-Ohio-6267, ¶ 25 (1st Dist.). See also State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19 (“Sufficiency of the evidence is a test of adequacy rather than credibility or weight of the evidence.“), citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).
{¶82} 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 еvidence, 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 (1967), paragraph one of the syllabus. 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.{¶83} Gartrell was convicted of trafficking in heroin in violation of
No person shall knowingly * * * [p]repare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance or a controlled substance analog, when the offender knows
or has reasonable cause to believe that the controlled substance or a controlled substance analog is intended for sale or resale by the offender or another person.
Except as otherwise provided in this division, if the amount of the drug involved equals or exceeds one hundred unit doses but is less thаn five hundred unit doses or equals or exceeds ten grams but is less than fifty grams, trafficking in heroin is a felony of the second degree, and the court shall impose as a mandatory prison term one of the prison terms prescribed for a felony of the second degree.
{¶84}
If the amount of the drug involved equals or exceeds one hundred unit doses but is less than five hundred unit doses or exceeds ten grams but is less than fifty grams, possession of heroin is a felony of the second degree, and the court shall impose as a mandatory prison term one of the prison terms prescribed for a felony of the second degree.
{¶85} Under his second and third assignments of error, Gartrell disputes only the issues of the quality and quantity of drugs trafficked and possessed. In other words, he does not argue that the State failed to prove the other elements of the drug-trafficking and drug-possession offenses. Therefore, we will limit our review under Gartrell‘s second and third assignments of error only to the issues of
{¶86} At trial, the State offered the testimony of Rentz, a forensic chemist in the drug analysis section of BCI. (Trial Tr., Vol. Three, at 434). Among other qualifications, Rentz testified that he has conducted scientific analysis of suspected controlled substances to determine their weight and identity “[m]any thousands” of times. (Id. at 437). He has conducted that analysis on heroin “[p]robably several 100” times. (Id.). The BCI lab is accredited. (Id. at 439). Without objection from Gartrell, the trial court qualified Rentz as an expert witness concerning scientific analysis of controlled substances, including heroin. (Id. at 438).
{¶87} Rentz identified State‘s Exhibit 13 as including the substance he analyzed for this case—“499 little glassine packets containing a powder substance.” (Id. at 443). Rentz explained how he handled each packet: “I would weigh the entire bundle or the small packs themselves with the material in them. I then emptied each of the packets out onto a separate piece of paper and then weighed the packets themselves and then subtracted that weight from the total.” (Id. at 445-446). According to Rentz, he viewed the substance in each packet, and each packet contained substantially the same substance. (Id. at 446).
{¶89} On cross-examination, Rentz testified that he used a “Gas Chromatography Mass Spectrometry” (“GCMS“) Test to determine whether the substance contained heroin. (Id. at 456). He preceded the GCMS Test with a Cobalt Thiocyanate Test, which Rentz admitted “tests for many things” as stated in the applicable “chem manual,” none of which are heroin. (Id. at 457-458). The Cobalt Thiocyanate Test yielded a positive result. (Id. at 458). Rentz admitted that he did not test the substance in all 499 bindles. (Id.). Rather, he counted all 499 of the bindles, but he tested the substances in only 28 bindles that he randomly selected out of the 499. (Id. at 459, 466). Rentz was not sure if Dobransky tested
{¶90} On re-direct examination, Rentz testified that he conducts “different types of preliminary testing” on substances, including the Cobalt Thiocyanate Test, to get “an idea of what might possibly be present.” (Id. at 477). In this case, Rentz testified that he used preliminary testing to determine that the substance could have been heroin, and then conducted additional testing and determined that the substance was heroin. (Id. at 478). Rentz testified that hypergeometric sampling is accepted as a forensic-drug-chemistry method for testing controlled substances. (Id.). Rentz reiterated that he opened all 499 packets and observed that each one contained what appeared to be the same substance. (Id. at 479). The
{¶91} After counsel concluded their examinations of Rentz, the trial court allowed the jury to submit questions of the witness to the court. (Id. at 481-482). One juror asked why Dobransky‘s test was not “used for evidence,” and Rentz explained that when an analyst retires like Dobransky did, it is BCI‘s policy to retest the substance so that the retired analyst does not have to come back to testify in court. (Id. at 483). Another juror asked, “[H]ow can you be sure all the bindles contained heroin if all were not tested?” (Id.). Rentz responded, “Very simply, I can‘t. It‘s a statistical method. Where we‘ll use a certain number and say because these all turned out exactly the same, they look the same, they appear to be the same, same consistency we can now make something in a statement about the whole.” (Id.).
{¶92} Another juror asked why Rentz did not test all 499 packets. (Id. at 486). Rentz testified that testing every sample of every case BCI receives would be “quite time consuming,” so they use a statistical technique to “say something about the whole based on the random sample.” (Id. at 486-487). In explaining how he decided to randomly sample 28 of the 499 packets, Rentz testified that in the hypergeometric sampling formula, BCI uses a “threshold of * * * 95 percent
{¶93} The State also called Isom, Utley, and Rowe as witnesses. (Trial Tr., Vol. Two, at 219); (Trial Tr., Vol. Three, at 336, 405). Isom testified that when he asked Gartrell why he fled on foot, Gartrell said because “he had drugs in his bag.” (Trial Tr., Vol. Two, at 236). According to Isom, he also asked Gartrell what was in the two duct-taped bricks that Utley discovered in Gartrell‘s suitcase, and Gartrell responded, “[H]eroin.” (Id. at 237). Isom testified that he “asked him how much,” and Gartrell responded, “500 bindles.” (Id.). Utley testified that she heard Gartrell tell Isom that the duct-taped packages contained “500” of “heroin.” (Trial Tr., Vol. Three, at 349). Rowe testified that he heard Gartrell tell Isom that he ran because he had “heroin.” (Id. at 409). According to Rowe, he also heard Gartrell tell Isom that he had “500” of “heroin.” (Id.).
{¶94} We first review the sufficiency of the evidence supporting Gartrell‘s drug-trafficking and drug-possession 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 conclude, after viewing the evidence in a light most favorable to the prosecution, that a rational trier of fact could have found proven beyond a reasonable doubt that the amount of drugs involved equaled or exceeded one hundred unit doses but was less than five hundred unit doses and that the drug was heroin. Rentz—who the trial court qualified as an expert concerning scientific analysis of controlled substances, including heroin—testified that, to a reasonable degree of scientific certainty, the 499 bindles found in Gartrell‘s suitcase contained heroin. In addition, Isom, Utley, and Rowe testified that Gartrell admitted that he had 500 units of heroin in his suitcase.
{¶95} Gartrell argues that the evidence presented by the State was sufficient to prove trafficking and possession of, at most, 28 bindles of heroin. Gartrell argues that while hypergeometric sampling might be scientifically accepted, that statistical method “must be found insufficient when the testing scientist cannot adequately explain the method nor [sic] its reliability factor.” (Appellant‘s Brief at 24). Gartrell points to Rentz‘s statement that hypergeometric sampling is “a math formula and I‘m not as up on it as I should be.” (Trial Tr., Vol. Three, at 487). Gartrell also argues that Rentz admitted that he tested the contents of only 28 of the bindles “and could not account for whether he had fully
{¶96} To the extent Gartrell disputes the hypergeometric sampling method and suggests that BCI must test every drug unit to support a conviction, we disagree with Gartrell. Concerning hypergeometric sampling, we agree with the Tenth District Court of Appeals, which has “accepted the hypergeometric or random sampling method of testing and determined ‘evidence of the random-sampling method is sufficient as a matter of law to support a determination that the entire substance recovered together and similarly packaged is the same controlled substance as that tested.‘” State v. Edwards, 10th Dist. Franklin No. 12AP-992, 2013-Ohio-4342, ¶ 40, quoting State v. Parsley, 10th Dist. Franklin No. 09AP-612, 2010-Ohio-1689, ¶ 39, State v. Samatar, 152 Ohio App.3d 311, 2003-Ohio-1639, ¶ 81 (10th Dist.), and State v. Smith, 10th Dist. Franklin No. 97APA05-660, 1997 WL 798301, *3 (Dec. 23, 1997). Other Courts of Appeals in Ohio have accepted methods of random sampling, including hypergeometric sampling. See, e.g., State v. Coppernoll, 6th Dist. Williams No. WM-07-010, 2008-Ohio-1293, ¶¶ 5-6, 13-14; State v. Garnett, 9th Dist. Medina No. 12CA0088-M, 2013-Ohio-4971, ¶¶ 7, 10.
{¶97} We also disagree with Gartrell that the State could not rely on hypergeometric sampling in this case because Rentz failed to adequately explain
{¶98} Viewing the evidence in a light most favorable to the prosecution, we conclude that Gartrell‘s drug-trafficking and drug-possession convictions are supported by sufficient evidence.
{¶99} We next address Gartrell‘s argument that his convictions were against the manifest weight of the evidence. We conclude that they were not. In support of his argument, Gartrell makes many of the same arguments that he makes in support of his sufficiency-of-the-evidence assignment of error. In addition, he argues that Rentz “admitted that his testing results were different from the prior scientist‘s results.” (Appellant‘s Brief at 20). However, Rentz explained that the only difference was in the “ultimate weight” of the substance due to the prior scientist taking some of the substance for testing. Gartrell argues that Rentz
{¶100} While Rentz‘s testimony may have been confusing at first, he offered explanations, sometimes multiple times, for the methods he used to observe and test the contents of the 499 bindles. Gartrell did not object to the trial court qualifying Rentz as an expert concerning scientific analysis of controlled substances, including heroin. Rentz explained that he has conducted scientific analysis of suspected controlled substances thousands of times and of heroin several hundreds of times. As we noted above, in addition to Rentz‘s testimony, Isom, Utley, and Rowe testified that they heard Gartrell admit that he had 500 units of heroin in his suitcase.3 Gartrell does not address this testimony under his second and third assignments of error, although he does contend under his first assignment of error that it is inadmissible.
{¶101} Based on the testimony of Rentz, Isom, Utley, and Rowe, we cannot conclude that the jury clearly lost its way and created such a manifest miscarriage
{¶102} Gartrell‘s second and third assignments of error are overruled.
Assignment of Error No. IV
The trial court erred in overruling appellant Gartrell‘s motion to dismiss the charges on the basis of speedy trial time pursuant to
{¶103} In his fourth assignment of error, Gartrell argues that the trial court erred in overruling his oral motion to dismiss the case against him—which he made on the first day of trial, before the jury was sworn—because: “(1) the time between the ruling on the motion to suppress and the journal entry appointing counsel should not have been excluded from the speedy trial time calculation; and (2) the discovery sanction time was impermissibly taxed against the defendant when the delay was directly caused by the actions of the State.” (Appellant‘s Brief at 27).4
{¶104} “A speedy trial claim involves a mixed question of law and fact for purposes of appellate review.” State v. Hansen, 3d Dist. Seneca No. 13-12-42, 2013-Ohio-1735, ¶ 20, citing State v. Masters, 172 Ohio App.3d 666, 2007-Ohio-4229, ¶ 11 (3d Dist.). “Accordingly, a reviewing court must give due deference to
{¶105}
{¶106}
{¶107} “However,
{¶108} Excluded from the speedy-trial calculation under
{¶109} “Sua sponte continuances are continuances ‘granted other than on the accused‘s own motion’ and toll the speedy-trial time as long as the record
{¶110} In this case, Gartrell was arrested on March 26, 2013, and his trial commenced on December 3, 2013. (See Doc. No. 3); (Trial Tr., Vol. One, at 9-10). Because Gartrell was held in jail from the time of his arrest to the time of trial, the State had 90 days, or until June 25, 2013, to bring Gartrell to trial, barring any tolling of the speedy-trial time. (See Trial Tr., Vol. One, at 135, 137); Kesler, 2014-Ohio-3376, at ¶ 6. Gartrell‘s trial commenced 161 days after the expiration of the 90-day speedy-trial period. Therefore, we look to whether the speedy-trial period was tolled by at least 161 days.
{¶112} The parties disagree, however, concerning whether the speedy-trial clock restarted on July 18, 2013. Gartrell argues, without citing authority, that the trial court‘s July 18, 2013 decision concerning his motion to suppress “restarted” the speedy-trial clock, notwithstanding Gartrell‘s May 28, 2013 motion to continue the trial. (Appellant‘s Brief at 26). The State argues that on June 4, 2013—while the speedy-trial time was tolled based on Gartrell‘s May 28, 2013 motion to suppress—Gartrell filed a motion to continue the trial, which independently tolled the speedy-trial time until September 24, 2013—the new trial date set by the trial court. We disagree with Gartrell and agree with the State.
{¶115} The total number of days during which the speedy-trial time was tolled between Gartrell‘s March 26, 2013 arrest and November 14, 2013 is 191 days, well over the 161 needed to avoid a speedy-trial violation. Therefore, Gartrell‘s speedy-trial rights were not violated, and we need not address his other arguments concerning speedy-trial time—namely, whether his November 7, 2013 motion for discovery sanctions tolled the speedy-trial time. Even assuming the speedy-trial time ran between November 7, 2013 and December 3, 2013, it still would not result in a speedy-trial violation.
{¶116} Gartrell‘s fourth assignment of error is overruled.
Judgment Affirmed
ROGERS and SHAW, J.J., concur.
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