State v. GlennState v. Glenn
W. Joseph Edwards for Appellant
Nathan R. Heiser for Appellee
{¶1} Defendant-appellant, Salena N. Glenn (“Glenn“), appeals the September 17, 2019 judgment of sentence of the Marion County Court of Common Pleas. For the reasons that follow, we affirm in part and reverse in part.
{¶2} On March 21, 2019, agents of a multi-jurisdictional drug task force conducted a search of a residence at 223 West Columbia Street, Marion, Ohio (“223 West Columbia“) pursuant to a search warrant. Inside the residence, law enforcement officers located drugs, and Illya Green (“Green“) and Kevin Swift (“Swift“) were arrested. Outside the residence, law enforcement officers heard a noise and located Glenn attempting to leave the residence in her vehicle. During a subsequent search of Glenn‘s vehicle, law enforcement officers located substances which were later determined to be cocaine and a mixture of fentanyl and heroin.
{¶3} On April 4, 2019, the Marion County Grand Jury issued a joint indictment charging Glenn, Green, and Swift with a variety of offenses. (Doc. No. 2). Specifically, the Marion County Grand Jury indicted Glenn on six counts: Count One of trafficking in cocaine in violation of
{¶4} On May 31, 2019, Glenn filed a motion for additional discovery. (Doc. No. 37). In the motion, Glenn requested that the trial court compel the State to provide her with any and all video recordings, police reports, and documentation regarding controlled buys at 223 West Columbia on February 26, 2019, February 28, 2019, March 12, 2019, March 14, 2019, and March 20, 2019. (Id.). Glenn argued that the information was discoverable under
{¶5} On June 7, 2019, the State filed its memorandum in opposition to Glenn‘s motion for additional discovery. (Doc. No. 38). The State argued that, although the five prior controlled buys were referenced in the affidavit for the search warrant which was executed on March 21, 2019, neither Glenn nor her co-defendants were charged with any crimes relating to those transactions. (Id.). Further, the State argued that Glenn failed to demonstrate that she would be
{¶6} On June 11, 2019, the trial court held a hearing on Glenn‘s motion for additional discovery. (Doc. No. 39). At the conclusion of the hearing, the trial court denied Glenn‘s motion for additional discovery. (June 11, 2019 Tr. at 30). (See Doc. No. 39).
{¶7} The case proceeded to a jury trial on August 22, 23, and 26, 2019. (See Doc. No. 113). Prior to the commencement of trial, the trial court dismissed Counts Five and Six of the indictment and the forfeiture specification that related to Count Five of the indictment. (Id.). At the close of the State‘s case, Glenn made a motion for acquittal under
{¶8} A sentencing hearing was held on September 16, 2019. (Doc. No. 113). Upon agreement of the parties, the trial court found that Counts One and Two merged for purposes of sentencing. (Id.). Accordingly, the State elected to sentence Glenn on Count Two. (Id.). The trial court sentenced Glenn to a mandatory term of 11 years in prison on Count Two, a mandatory term of 7 years in prison on Count Three, and 24 months in prison as to Count Four. (Id.). Further, the trial court
{¶9} On October 16, 2019, Glenn filed her notice of appeal. (Doc. No. 117). She raises three assignments of error for our review. For ease of discussion, we review the second and third assignments of error out of order.
Assignment of Error No. I
The trial court‘s numerous errors involving evidentiary issues denied appellant the right to present a defense thereby violating her constitutional due process rights to a fair trial under the State and Federal Constitutions. (Record Reference: Transcript of Pre-Trial (Date 6/11/19), Tr. Vol. III, pp. 602-650)
{¶10} In the first assignment of error, Glenn argues that the trial court abused its discretion by not permitting her to introduce two pieces of evidence at trial which could have been used to establish the defense that she did not possess or traffic drugs and that the drugs found at the scene and in her vehicle instead belonged to Green.
{¶11} First, Glenn argues that the trial court did not permit her to introduce evidence of the five prior controlled buys at 223 West Columbia which apparently do not show her trafficking drugs. Glenn contends that because she was not trafficking drugs during those controlled buys, the videos of the controlled buys could be used to advance her defense that she was not trafficking or knowingly possessing drugs on March 21, 2019. Moreover, Glenn argues the evidence of the
{¶12} Second, Glenn argues that the trial court erred by not admitting a statement made by Green to Deputy Stacy McCoy (“Deputy McCoy“) during the execution of the search warrant. Importantly, Green invoked his Fifth Amendment right to remain silent and did not testify at Glenn‘s trial. However, Glenn offered the proferred testimony of Deputy McCoy, wherein Deputy McCoy testified to statements Green made to her on March 21, 2019 during the execution of the search warrant. Specifically, Deputy McCoy testified that Green told her that Glenn “had nothing to do” with the drugs found at the residence and “took all responsibility” for the drugs therein. (Aug. 26, 2019 Tr. at 614). Glenn sought to introduce Green‘s statements under
{¶13} Glenn argues that by not permitting her to introduce these two pieces of evidence, the trial court committed cumulative error which prevented her from providing a credible defense that the drugs belonged to Green and, accordingly, denied her the right to a fair trial.
{¶14} “Under [the] doctrine of cumulative error, a conviction will be reversed when the cumulative effect of errors in a trial deprives a defendant of a fair
{¶15} Generally, the admission or exclusion of evidence lies within the trial court‘s discretion, and a reviewing court should not reverse absent an abuse of discretion and material prejudice. State v. Conway, 109 Ohio St. 3d 412, 2006-Ohio-2815, ¶ 62, citing State v. Issa, 93 Ohio St.3d 49, 64 (2001). An abuse of discretion implies that the court‘s attitude was unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157 (1980). “When applying the abuse of discretion standard, a reviewing court is not free to merely substitute its judgment for that of the trial court.” In re Jane Doe 1, 57 Ohio St.3d 135, 137-138 (1991).
{¶16} “Evidence which is not relevant is not admissible.”
{¶17} We turn first to Glenn‘s argument relating to the five prior controlled buys at 223 West Columbia. Glenn argues in her brief that the trial court erred by not allowing her to admit evidence of the prior controlled buys at 223 West Columbia, the location of her arrest. However, Glenn‘s argument neglects the fact that this evidence was not even available to her for potential admission. In Glenn‘s May 31, 2019 motion for additional discovery, she argued that the State should be
{¶18}
{¶19} The purpose of
(B) 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:
(1) Any written or recorded statement by the defendant or a co-defendant, including police summaries of such statements, and
including grand jury testimony by either the defendant or co-defendant; (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;
(3) Subject to divisions (D)(4) and (E) of this rule, all laboratory or hospital reports, books, papers, documents, photographs, tangible objects, buildings, or places;
(4) Subject to division (D)(4) and (E) of this rule, results of physical or mental examinations, experiments or scientific tests;
(5) Any evidence favorable to the defendant and material to guilt or punishment;
(6) All reports from peace officers, the Ohio Highway Patrol, and federal law enforcement agents, provided however, that a document prepared by a person other than the witness testifying will not be considered to be the witness‘s prior statement for purposes of the cross examination of that particular witness under the Rules of Evidence unless explicitly adopted by the witness;
(7) Any written or recorded statement by a witness in the state‘s case-in-chief, or that it reasonably anticipates calling as a witness in rebuttal.
{¶20} The United States Supreme Court has held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194 (1963). In recognition thereof,
{¶21} “Evidence is material if there is a ‘reasonable probability’ that the result of the trial would have been different had the evidence been disclosed to the defense.” State v. Osie, 140 Ohio St.3d 131, 2014-Ohio-2966, ¶ 153, quoting Kyles v. Whitley, 514 U.S. 419, 433, 115 S.Ct. 1555 (1995), quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375 (1985). “A ‘reasonable probability’ is
{¶22} Glenn argued that, by failing to provide her with the video recordings, police reports, and documentation related to the five prior controlled buys at 223 West Columbia, which formed the basis of the search warrant executed on March 21, 2019, the State was withholding discoverable information which was material to mitigation, exculpation, or impeachment. We disagree.
{¶23} First, at the hearing on Glenn‘s motion for additional evidence, the trial court, with the agreement of the State, offered to review the requested discovery in camera to determine whether it contained potential exculpatory evidence. (June 11, 2019 Tr. at 24-25, 27-28, 36-37). However, Glenn‘s attorney repeatedly rejected the trial court‘s offer to review the requested material. (Id.). Accordingly, by Glenn‘s attorney‘s action, the trial court did not have the opportunity to review the potential evidence. Further, the potential evidence was never made part of the record. Because the potential evidence is not included in the record, we cannot find that the evidence requested was related to the indictment or that it was material to the preparation of Glenn‘s defense. See State v. Hebdon, 12th Dist. Butler Nos. CA2012-03 and CA2012-03-062, 2013-Ohio-1729, ¶ 54 (holding that because there was not an indication in the record that the appellant requested to have copies of the potential evidence sealed and placed in the record to preserve the issue for appellate
{¶24} Further,
{¶26} Accordingly, Glenn‘s first assignment of error is overruled.
Assignment of Error No. III
The jury‘s verdicts were against the manifest weight of the evidence in violation of the United States Constitution and the Ohio Constitution. (Record Reference: Judgment Entry)
{¶27} In her third assignment of error, Glenn argues that her convictions are against the manifest weight of the evidence.
{¶28} 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
{¶29} However, we note that Glenn offers no support for her argument that her convictions are against the manifest weight of the evidence. Rather, Glenn‘s sole argument related to her third assignment of error is as follows: “Counsel has cited the relevant portion of [the] transcript contained herein as to why the State believes the verdict was correct, however to preserve Appellant‘s rights for future review, seeks the Court to review the facts contained within this testimony to see if they establish all requisite elements of the offenses.” (Appellant‘s Brief at 16).
{¶30} “‘[A] defendant has the burden of affirmatively demonstrating the error of the trial court on appeal.‘” State v. Costell, 3d Dist. Union No. 14-15-11, 2016-Ohio-3386, ¶ 86, quoting State v. Stelzer, 9th Dist. Summit No. 23174, 2006-Ohio-6912, ¶ 7. “Moreover, ‘[i]f an argument exists that can support this
{¶31} Accordingly, Glenn‘s third assignment of error is overruled.
Assignment of Error No. II
The trial court erred in imposing a prison term consecutive to another prison term because there was no finding that the sentence was not disproportionate to any danger the defendant may pose to the public and the trial court failed to identify specific reasons in support of its finding that consecutive sentences were appropriate. (Record Reference: Judgment Entry)
{¶32} In her second assignment of error, Glenn argues that the trial court erred by sentencing her to 20 years in prison. Specifically, she contends that the trial court erred by imposing consecutive sentences because it did not make the requisite consecutive sentence findings on the record. Further, Glenn argues that the trial court erred by imposing consecutive sentences because it failed to identify specific reasons in support of its finding that consecutive sentences were appropriate.
{¶33} “Under
{¶35} “Except as provided in * * * division (C) of section 2929.14, * * * a prison term, jail term, or sentence of imprisonment shall be served concurrently with any other prison term, jail term, or sentence of imprisonment imposed by a court of this state, another state, or the United States.”
(4) * * * [T]he court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of
the Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct.
(c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶36}
{¶38} At the sentencing hearing, the trial court made the following statements regarding Glenn‘s sentences:
I do also find that consecutive sentences are necessary in each of these counts, and we‘ll run each of them consecutive to each other because it‘s necessary to protect the public from future crime, and that consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and the danger the offender posed to the public with this conduct.
(Sept. 16, 2019 Tr. at 16-17).
{¶39} Based on our review of the record, we cannot conclude that the trial court complied with its obligation to make all of the required
{¶40} In its sentencing entry, the trial court stated:
In finding that the sentences shall be served consecutively, the Court finds that consecutive sentences are necessary to punish the Defendant or to protect the public from future crime, and that the sentences are not disproportionate to the seriousness of the Defendant‘s conduct and the danger posed by the Defendant. The Court further finds that the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for either of the offenses committed as part of the course of conduct adequately reflects the seriousness of the Defendant‘s conduct.
(Doc. No. 113). Thus, the trial court made the appropriate
{¶41} Accordingly, because the trial court did not make all of the required
{¶42} Glenn‘s second assignment of error is sustained.
{¶43} Having found no error prejudicial to the appellant herein in the particulars assigned and argued with respect to her first and third assignments of error, we affirm the judgment of the trial court with respect to those matters. However, having found error prejudicial to the appellant herein in the particulars assigned and argued with respect to her second assignment of error, we reverse the judgment of the trial court with respect to that matter and remand to the trial court for resentencing consistent with this opinion.
Judgment Affirmed in Part, Reversed in Part and Cause Remanded.
ZIMMERMAN and SHAW, J.J., concur.
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