State v. HoangState v. Hoang
Dated: December 13, 2010
WHITMORE, Judge.
{¶1} Defendant-Appellant, Phu Hoang, appeals from his conviction in the Medina County Court of Common Pleas. This Court affirms.
I
{¶2} Following a period of surveillance, agents from the Medway Drug Enforcement Agency (“Medway“) executed a search warrant at eight different locations and arrested Hoang and multiple other individuals based on their suspected involvement in a drug ring. Medway confiscated a total of 23,632 grams of marijuana from the eight locations that its agents searched. Hoang lived at one of the locations, Stoneybrook Lane Apt. 107, with his wife, Than Thi Tran (“Than Thi“), and his brother, Khuong Vay Hoang (“Khuong Vay“). Stoneybrook Lane Apts. 104 and 106 also were connected to the drug ring along with an apartment on Grand Lake Drive and four residential homes on Troon Avenue, Baywood Drive, Red Clover Lane, and Autumnwood Lane, respectively.
{¶4} Subsequently, the trial court resentenced Hoang. The State elected to merge all of Hoang‘s offenses with his offense for the unlawful cultivation of marijuana, and the court sentenced Hoang to eight years in prison on that count. Hoang now appeals from his conviction and raises three assignments of error for our review.
II
Assignment of Error Number One
“THE EVIDENCE AT TRIAL WAS INSUFFICIENT TO SUPPORT THE JURY‘S GUILTY VERDICTS, AND APPELLANT‘S CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
{¶6} Initially, we note that Hoang only received one conviction in this case. Although the jury found Hoang guilty of all of the offenses at issue, the court only sentenced him on the illegal cultivation count because all of Hoang‘s offenses were allied offenses. For purposes of allied offenses, “a ‘conviction’ consists of a guilty verdict and the imposition of a sentence or penalty.” State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, at ¶12. Thus, despite any reference to his “convictions,” Hoang‘s first assignment of error actually tests the sufficiency and weight of his single conviction and his other guilty verdicts. See id. at ¶27 (providing that even after the merger of allied offenses, a “the determination of the defendant‘s guilt for committing allied offenses remains intact“). We separately analyze sufficiency and manifest weight.
Sufficiency
{¶7} In order to determine whether the evidence before the trial court was sufficient to sustain a conviction, this Court must review the evidence in a light most favorable to the prosecution. State v. Jenks (1991), 61 Ohio St.3d 259, 274. Furthermore:
“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. The 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. at paragraph two of the syllabus; see, also, State v. Thompkins (1997), 78 Ohio St.3d 380, 386.
“In essence, sufficiency is a test of adequacy.” Thompkins, 78 Ohio St.3d at 386.
{¶8} “No person shall knowingly cultivate marihuana or knowingly manufacture or otherwise engage in any part of the production of a controlled substance.”
{¶9}
“No person, with purpose to commit or to promote or facilitate the commission of *** a felony drug trafficking, manufacturing, processing, or possession offense *** shall *** [w]ith another person or persons, plan or aid in planning the commission of any of the specified offenses; [or] *** [a]gree with another person or persons that one or more of them will engage in conduct that facilitates the commission of any of the specified offenses.”
R.C. 2923.01(A)(1) -(2) .
Proof of a substantial overt act in furtherance of a conspiracy is required before a person may be found guilty of conspiracy.
{¶10} Medway agents conducted surveillance on the eight properties at issue in this case from late April to June 15, 2006. When the agents finally executed search warrants on all of the properties on June 15, 2006, they discovered a large-scale marijuana operation. Charles
{¶11} Detective Sergeant Roger Sprowl testified that he helped Medway agents execute the search warrant on Stoneybrook Lane, Apt. 107, on the night of June 15, 2006. He testified that Hoang, Than Thi, and Khuong Vay were all occupants of Apt. 107 and were home when the search commenced. The apartment contained numerous pieces of electronic stereo equipment, televisions, a DVD/VCR player, desktop and laptop computers, a fax machine, and a video camera. The apartment also contained a large amount of documents. Detective Sprowl
{¶12} Hoang‘s counsel stipulated that Hoang appeared three separate times on three different days on the recordings that Medway‘s agents created when they conducted surveillance on the various properties at issue between late April and mid-June 2006. On one occasion, Dustin Burnette, a Medway technical surveillance agent, personally observed a man, later identified as Hoang, go inside the Red Clover Lane property to help another man, Lai Vu, load mattresses into a truck for transport. On another occasion in May 2006, Hoang attended a barbecue at the Troon Avenue property. Hoa Kim Tran, another individual arrested as a part of the drug ring, confirmed that Hoang attended the barbecue and further testified that she saw him on one other occasion at Henry Tran‘s apartment on Grand Lake Drive. Henry Tran and the Grand Lake Drive apartment also were connected to the drug ring along with another individual named Tuan Do. Tuan Do testified that Henry Tran hired him to live at the Troon Avenue
{¶13} Charles Ellis, a Medway senior agent, testified that Medway combined all the marijuana it found at the various properties at issue after determining that all the properties were part of the same criminal conspiracy. Jennifer Acurio, a forensic scientist with the Ohio Bureau of Criminal Identification and Investigation (“BCI“), testified that she tested and weighed the marijuana Medway turned over to BCI. Acurio testified that all of the substance was, in fact, marijuana and that the marijuana had a total weight of 23,632 grams.
{¶14} Based on all of the foregoing, a reasonable jury could have found that Hoang actually cultivated and possessed marijuana in addition to helping others do so. As noted above, Tuan Do provided direct evidence that Hoang cultivated and possessed marijuana. While virtually all of the evidence in this case was circumstantial, “the State may rely on circumstantial evidence to prove an essential element of an offense, as ‘[c]ircumstantial evidence and direct evidence inherently possess the same probative value[.]‘” State v. Ha, 9th Dist. 07CA0089-M, 2009-Ohio-1134, at ¶32, quoting Jenks, 61 Ohio St.3d at paragraph one of the syllabus. Testimony placed Hoang at several of the locations where Medway agents discovered very large amounts of marijuana. The marijuana and the supplies necessary to grow the marijuana at these locations essentially occupied entire floors of the properties, including the main floor at the Troon Avenue property. Further, the apartment where Hoang resided contained numerous receipts and other documents tied to the various people and properties at issue in this case, including a settlement agreement for the Troon Avenue property. We cannot say that the jury erred by concluding that Hoang‘s presence around the foregoing properties and all of the
Manifest Weight
{¶15} When considering a manifest weight argument, the Court:
“[M]ust 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 (1986), 33 Ohio App.3d 339, 340.
A weight of the evidence challenge indicates that a greater amount of credible evidence supports one side of the issue than supports the other. Thompkins, 78 Ohio St.3d at 387. Further, when reversing a conviction on the basis that the conviction was against the manifest weight of the evidence, the appellate court sits as the “thirteenth juror” and disagrees with the factfinder‘s resolution of the conflicting testimony. Id. Therefore, this Court‘s “discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.” State v. Martin (1983), 20 Ohio App.3d 172, 175; see, also, Otten, 33 Ohio App.3d at 340.
{¶16} Hoang argues that his conviction and guilty verdicts are against the manifest weight of the evidence because they rested upon the “highly suspect and self-serving” testimony of co-conspirators. He further argues that the evidence showed, at most, that he associated with many of the people involved in the drug ring. We disagree.
Assignment of Error Number Two
“THE INDICTMENT, ON ITS FACE, IS FATALLY DEFECTIVE IN THAT IT: FAILS TO PROPERLY SPECIFY A SUBSTANTIAL, OVERT ACT UNDERTAKEN IN FURTHERANCE OF THE CONSPIRACY; FAILS TO ALLEGE A SUBSTANTIAL, OVERT ACT THAT IS CRIMINAL IN NATURE; ALLEGES AS A SUBSTANTIAL, OVERT ACT CONDUCT CONSTITUTIONALLY PROTECTED; AND, MAKES DISCRIMINATING ALLEGATIONS OF RACIAL PROFILING.”
{¶18} In his second assignment of error, Hoang argues that his indictment was defective because it failed to identify the substantial, overt act that Hoang allegedly took in furtherance of the conspiracy at issue.
{¶19} In State v. Childs (2000), 88 Ohio St.3d 194, syllabus, the Ohio Supreme Court held that an indictment charging conspiracy “must allege some specific, substantial, overt act performed in furtherance of the conspiracy.” This Court has similarly recognized that a
{¶20} A defendant may argue that an indictment fails to charge an offense at any point “during the pendency of the proceeding.”
{¶21} The trial court record reflects that Hoang never argued that his indictment was defective because it did not specify the particular overt act he allegedly committed in furtherance of the conspiracy. Further, Hoang has not argued plain error on appeal. Because Hoang forfeited this argument below and has not argued plain error on appeal, we will not address its
Assignment of Error Number Three
“THE TRIAL COURT ERRED IN NOT ORDERING THE STATE TO PROVIDE DEFENDANT WITH RIGHTS PROVIDED UNDER THE GENEVA CONVENTION.”
{¶22} In his third assignment of error, Hoang argues that the trial court erred by not ordering the State to afford him “rights provided under the Geneva Convention.” Although Hoang‘s captioned assignment of error and several parts of his argument reference the Geneva Convention, it appears from his discussion and from the cases he cites therein that his argument actually relates to the Vienna Convention. See Medellin v. Texas (2008), 552 U.S. 491. Hoang filed a motion to dismiss in the court below, based partially on the State‘s failure to allow him to consult “his consular offices” in violation of the Vienna Convention. Yet, Hoang specifically asked the court to allow him to withdraw that motion, and the court filed an order permitting him to do so. Hoang never raised the issue again.
{¶23} Even assuming that Hoang forfeited rather than waived this issue at trial when he withdrew his motion, Hoang does not point this Court to any evidence in the record in support of his argument that the State did not afford him any rights to which he may or may not have been entitled under the Vienna Convention. An appellant bears the burden of demonstrating error on appeal by supporting his argument with citations to the trial record and applicable authority.
{¶24} Hoang‘s assignments of error are overruled. The judgment of the Medina County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
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.
Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
DICKINSON, P. J.
BELFANCE, J.
CONCUR
APPEARANCES:
DAVID V. GEDROCK, Attorney at Law, for Appellant.
DEAN HOLMAN, Prosecuting Attorney, and RUSSELL A. HOPKINS and ANNE EISENHOWER, Assistant Prosecuting Attorneys, for Appellee.