STATE OF OHIO v. LARRY E. HAMILTON
C.A. No. 15CA010830
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
January 23, 2017
[Cite as State v. Hamilton, 2017-Ohio-230.]
COUNTY OF LORAIN ss: APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 14CR090425
Dated: January 23, 2017
CARR, Presiding Judge.
{1} Appellant Larry Hamilton appeals his conviction in the Lorain County Court of Common Pleas. This Court affirms in part, reverses in part, and remands.
I.
{2} Hamilton was indicted on two counts of trafficking in drugs (cocaine), both of which included major drug offender and forfeiture specifications; one felony count of possession of drugs (cocaine), which included a major drug offender specification; one count of possessing criminal tools; one count of drug paraphernalia offenses; and one minor misdemeanor count of possession of drugs (marijuana). He filed a motion to suppress all evidence seized from his residence and as a result of trash pulls. After a hearing on the motion, the trial court denied the motion. The court reasoned, first, that Fourth Amendment protections do not extend to trash voluntarily left beyond the curtilage of a home. Hamilton conceded as much in his motion to suppress. Second, the trial court found that, even were it to strike all averments in the affidavit
{3} The matter proceeded to trial. The State dismissed one count of trafficking in cocaine. At the conclusion of trial, the jury found Hamilton guilty of the remaining five counts, additionally finding that the amount of cocaine relative to the trafficking and possession counts was equal to or exceeded 100 grams. Hamilton waived his right to a jury determination regarding the forfeiture specification appended to the trafficking charge and instead stipulated to forfeiture of $19,135.00 in U.S. currency. At sentencing, the trial court found Hamilton to be a major drug offender. It further merged the possession of cocaine charge into the trafficking charge and sentenced Hamilton to 11 years in prison and ordered him to pay a fine of $10,000 for trafficking. After imposing periods of incarceration on the remaining three counts, ranging from “no time” to 11 months, the court ordered that all sentences would run concurrently. The trial court further suspended Hamilton‘s payment of the mandatory fine due to his indigency. Hamilton timely appealed and raises four assignments of error for review. This Court rearranges some assignments of error and consolidates others to facilitate review.
II.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT ERRED IN DENYING APPELLANT‘S MOTION TO SUPPRESS THE EVIDENCE WHEN IT WAS CLEARLY DEMONSTRATED THAT THE LORAIN POLICE DEPARTMENT RELIED ON FALSE AND UNRELIABLE INFORMATION TO SECURE A SEARCH WARRANT OF 1485 F STREET, LORAIN, OHIO.
{5} Hamilton does not argue that the affidavit underlying the search warrant was deficient on its face. Instead, he argues from two perspectives that the detective-affiant made false statements to support a finding of probable cause to issue the search warrant. First, he argues that the detective-affiant must have relied on information provided by an unreliable confidential informant because he did not aver as to the informant‘s reliability. This Court has held, however, that “[t]here is no need for a declaration of the reliability of an informant when the informant‘s information is corroborated by other information.” State v. Norris, 9th Dist. Wayne No. 05CA0081, 2006-Ohio-4022, ¶ 10, quoting State v. Fisher, 9th Dist. Summit No. 22481, 2005-Ohio-5104, ¶ 7. Accordingly, “where an affidavit sufficiently details some of the underlying circumstances, where the reason for crediting the informant is given, and where probable cause is or has been found, this Court should not rely on a hyper-technicality to invalidate a warrant. Instead, the affidavit should be interpreted in a common sense manner.” (Internal citations omitted.) Norris at ¶ 10. Probable cause exists when the totality of the circumstances indicates a mere probability of criminal activity. Id. at ¶ 11.
{6} In this case, Detective Howard Heathcoat of the Lorain Police Department averred that an unnamed confidential informant reported that Hamilton was engaged in drug trafficking activities involving cocaine at the residence he shared with his live-in girlfriend. The confidential informant provided information regarding Hamilton‘s manner of transporting the cocaine, how frequently he obtained the drug, and that he brought it into the residence. The detective further averred that he was aware of Hamilton‘s significant drug trafficking history in
{7} Given the affidavit‘s sufficient detail as to the underlying circumstances; the confidential informant‘s report that corresponded with Hamilton‘s known history; and evidence demonstrating the probability of criminal activity, coupled with our precedent eschewing a requirement that the affiant aver that a confidential informant is reliable, this Court concludes that the trial court did not err by refusing to find that the detective-affiant relied on unreliable information in his affidavit in support of the search warrant.
{8} Second, Hamilton argues that Detective Heathcoat included false or misleading information in his affidavit to secure a search warrant. Hamilton does not argue that any specific information in the affidavit is false; rather, he argues that some of the information is misleading because the detective omitted certain information. Specifically, Hamilton argues that, although field tests on some substances found during the ten trash pulls produced positive results for cocaine, some of the subsequent lab results did not validate the field tests. The reasonable inference we glean from Hamilton‘s argument, therefore, is that some information regarding the presence of cocaine in the trash obtained from Hamilton‘s residence was false. Although Hamilton did not expressly request that the trial court strike any reference in the affidavit to field tests that were not ultimately corroborated by lab test results, the appropriate remedy would be to
{9} As this Court has written:
To successfully attack the veracity of a facially sufficient search warrant affidavit, a defendant must show by a preponderance of the evidence that the affiant made a false statement, either intentionally, or with reckless disregard for the truth. State v. Waddy, 63 Ohio St.3d 424, 441 (1992), quoting Franks, 438 U.S. at 155-156. Reckless disregard means that the affiant had serious doubts about the truth of an allegation. State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, ¶ 31, quoting United States v. Williams, 737 F.2d 594, 602 (7th Cir.1984). Omissions count as a false statement if designed to mislead, or * * * made in reckless disregard of whether they would mislead, the magistrate. McKnight at ¶ 31, quoting United States v. Colkley, 899 F.2d 297, 301 (4th Cir.1990).
(Internal quotations omitted.) State v. Jackson, 9th Dist. Lorain No. 14CA010593, 2015-Ohio-3520, ¶ 22.
{10} Hamilton argues that the trial court erred by denying his motion to suppress based on an application of the test enunciated in Franks, supra, and summarized as follows:
[A] court considering whether to suppress evidence based on an allegation that the underlying affidavit contained false statements must apply a two-part test: (1) whether the defendant has proven by a preponderance of the evidence that the affidavit contains deliberately or recklessly false statements and (2) whether the affidavit, without the false statements, provides the requisite probable cause to sustain the warrant.
United States v. Charles, 138 F.3d 257, 263 (6th Cir.1998).
{11} At the suppression hearing, Detective Heathcoat admitted that he had some lab results from the many pieces of trash collected and suspected to contain controlled substances. He admitted that he did not include any lab results in his affidavit and, moreover, that many of the samples which tested presumptively positive for cocaine during field tests ultimately tested negative in the lab. The detective testified that he was not surprised that lab results contradicted some field test results because the field tests are not always accurate.
{13} Hamilton, however, makes no argument on appeal regarding the information which he believes must be stricken from the affidavit or how such a redacted affidavit fails to demonstrate probable cause to support the issuance of the search warrant. Although Hamilton cites law for the proposition that a search warrant must be voided and the fruits of the search excluded if the affidavit‘s remaining content after the false or misleading portions have been stricken does not support probable cause, he makes no argument as to why the remaining content does not support probable cause. This Court has frequently written that we will not create an argument for an appellant who is responsible for providing a roadmap to guide our review. Princess Kim, L.L.C. v. U.S. Bank, N.A., 9th Dist. Summit No. 27401, 2015-Ohio-4472, ¶ 12. Nevertheless, even disregarding all references in the affidavit to positive field tests which ultimately were not verified by laboratory results, the remaining averments supported a finding of probable cause to sustain the search warrant. The first, fifth, eighth, ninth, and tenth trash pulls yielded numerous pieces of evidence that tested both presumptively positive after a field
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN LETTING THIS CASE GO TO THE JURY WHEN THERE WAS NOT SUFFICIENT, COMPETENT EVIDENCE IDENTIFYING THE DISPUTED SUBSTANCE AS “COCAINE” AS DEFINED BY
{14} Hamilton‘s assertion that there was insufficient evidence to identify the alleged controlled substance as “cocaine” to support his convictions for trafficking and possession is premised on the argument that only the weight of the pure cocaine, and not the additional weight of any cutting or diluting agents, may be considered for purposes of determining the penalty level of the offenses of trafficking and possession of cocaine. Although Hamilton frames his argument in terms of sufficiency, we recognize that the substance of his argument is that the State failed to present evidence to support an enhanced penalty for possession and trafficking in cocaine because it must have presented evidence of the actual weight of the cocaine exclusive of any filler materials or cutting agents. As the Supreme Court of Ohio has recently determined this issue, we find Hamilton‘s arguments well taken.
{15} Hamilton was convicted of trafficking in cocaine in violation of
{16} In State v. Gonzales, Slip Opinion No. 2016-Ohio-8319, the Supreme Court of Ohio certified a conflict question regarding whether the State, “in prosecuting cocaine offenses involving mixed substances under
{17} In State v. Jackson, 9th Dist. Lorain No. 15CA010828, 2016-Ohio-7637, this Court came to the opposite conclusion. The defendant there argued that his trafficking and
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED WHEN IT INSTRUCTED THE JURY THAT THE AMOUNT OF CONTROLLED SUBSTANCE INCLUDES THE WEIGHT OF ANY MIXTURE THAT INCLUDES SOME DETECTIBLE AMOUNT OF A CONTROLLED SUBSTANCE.
{18} Hamilton argues that the trial court erred by failing to instruct the jury that the amount of cocaine involved with respect to the possession and trafficking offenses must be determined by the weight of the actual cocaine exclusive of any filler or cutting agents. Based
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED BECAUSE THE GUILTY VERDICTS IN THIS CASE ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND SHOULD BE REVERSED BECAUSE THE[Y] VIOLATE THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION, AND ARTICLE I, SECTION 10 OF THE CONSTITUTION OF THE STATE OF OHIO.
{19} Hamilton argues that his convictions are against the manifest weight of the evidence. Specifically, Hamilton argues that the jury‘s finding that he possessed any of the contraband underlying the offenses was against the manifest weight of the evidence. This Court disagrees.
In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate court must review 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.
State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986).
Weight of the evidence concerns the tendency of a greater amount of credible evidence to support one side of the issue more than the other. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). Further when reversing a conviction on the basis that it was against the manifest weight of the evidence, an appellate court sits as a “thirteenth juror,” and disagrees with the factfinder‘s resolution of the conflicting testimony. Id.
State v. Tucker, 9th Dist. Medina No. 06CA0035-M, 2006-Ohio-6914, ¶ 5.
{20} This discretionary power should be exercised only in exceptional cases where the evidence presented weighs heavily in favor of the defendant and against conviction. Thompkins, 78 Ohio St.3d at 387.
{22} Hamilton was convicted of possession of drugs (cocaine and marijuana), possession of criminal tools, and possession of drug paraphernalia. “No person shall knowingly * * * possess * * * a controlled substance * * *.”
{23} “Possess” or “possession” is defined as “having control over a thing or substance, but may not be inferred solely from mere access to the thing or substance through ownership or occupation of the premises upon which the thing or substance is found.”
{24} The Lorain Police Department initiated an investigation relating to 1485 F Street, in Lorain, after receiving complaints that Hamilton was selling drugs out of that residence. Various police detectives conducted surveillance and saw Hamilton come and go from the residence. The police conducted ten trash pulls from garbage discarded at the residence and found various pieces of mail addressed to Hamilton. After obtaining a search warrant for the
{25} The police admitted that they did not attempt to determine whose name was on the lease to the residence, who paid the utilities in the home, or to whom a vehicle parked in the driveway was registered. Although some mail addressed to Hamilton, as well as his state identification card (which had expired two years earlier), noted addresses other than the F Street address, the police detectives testified that people engaged in illegal activities like drug trafficking tend not to update their addresses or maintain current forms of identification, register vehicles, or execute leases, so as to “fly under the radar” and avoid tracking by police. Based on
{26} A thorough review of the record indicates that this is not the exceptional case where the evidence weighs heavily in favor of Hamilton. The weight of the evidence supports the conclusion that Hamilton possessed the drugs and other contraband found during the search of 1485 F Street, in Lorain. There was indicia of his residence in the home, including mail, personal belongings, an identification card, and his repeated presence. The evidence indicated that he lived there with his girlfriend. Given his proximity to the drugs and other contraband, there was a reasonable inference that Hamilton constructively possessed those items. The large sums of money found throughout the residence, along with the locations and prevalence of drug-related and trafficking-related items throughout the residence indicated that Hamilton had the ability to exercise dominion and control over those items. Accordingly, Hamilton‘s convictions for possession of cocaine, possession of marijuana, possession of criminal tools, and possession of drug paraphernalia are not against the manifest weight of the evidence. The third assignment of error is overruled.
III.
{27} Hamilton‘s first assignment of error is sustained. We decline to address the second assignment of error. The third and fourth assignments of error are overruled. The judgment of the Lorain County Court of Common Pleas is affirmed in part, reversed in part, and the cause is remanded for further proceedings consistent with this opinion.
Judgment affirmed in part, reversed in part, and remanded.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed equally to both parties.
DONNA J. CARR
FOR THE COURT
WHITMORE, J. SCHAFER, J. CONCUR.
APPEARANCES:
JACK W. BRADLEY, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and ELIZABETH LINDBERG, Assistant Prosecuting Attorney, for Appellee.