State v. HooksState v. Hooks
Repper-Pagan Law, Ltd., and Christopher Pagan, for appellant.
M. POWELL, P.J.
{1} Appellant, Ryan Harrison Hooks, appeals his convictions and sentence in the Butler County Court of Common Pleas. For the reasons set forth below, we affirm the trial court‘s rulings.
{2} The Warren County Drug Taskforce (“WCDT“) began investigating Hooks as a possible drug dealer in July 2018. On August 21, 2018, the WCDT arranged for a confidential informant (“CI“) to perform a controlled purchase of an ounce of fentanyl from Hooks at Hooks’ apartment in West Chester, Ohio. The CI was given money and was fitted
{3} A series of further controlled purchases was then arranged. On September 5, 2018, the CI purchased a mixture of heroin, fentanyl, and tramadol weighing 27.94 grams. At that time Hooks informed the CI that he also sold cocaine. On September 27, 2018, the CI purchased a mixture of heroin, fentanyl, diazepam, and tramadol weighing 27.95 grams. At that time Hooks also told the CI that Hooks usually received one brick of fentanyl at a time. On October 11, 2018, the CI purchased cocaine weighing 27.64 grams. On November 8, 2018, the CI purchased cocaine weighing 27.92 grams. Although they did not see Hooks during these transactions, the officers in the WCDT became familiar with Hooks’ voice.
{4} On November 15, 2018, the WCDT executed a search warrant for Hooks’ apartment. As officers approached the residence, Hooks attempted to flee. As he fled, Hooks removed a baggie from his pocket and dumped the contents (later found to be cocaine) on the ground. Hooks was arrested and placed in the back of a police cruiser. Officers then searched Hooks’ apartment and garage, finding both a large bag of white powder and a bag containing a Ruger firearm and suspected narcotics. In total, officers recovered the firearm and four bags of drugs, one containing 21.32 grams of cocaine; one containing 105.47 grams of heroin, fentanyl, cocaine, and diazepam mixture; and two bags of cocaine with a combined weight of 85.56 grams.
{5} Hooks was indicted on four counts of trafficking in heroin, four counts of possession of heroin, three counts of trafficking in cocaine, three counts of possession of cocaine, and one count of having weapons under disability. Because of the quantity of drugs, four of the counts alleged that Hooks qualified as a Major Drug Offender (“MDO“).
{6} Hooks now appeals his conviction and sentence, raising three assignments of error.
{7} Assignment of Error No. 1:
{8} THE TRIAL COURT IMPOSED AN UNLAWFUL SENTENCE.
{9} In his first assignment of error, Hooks makes two different arguments. First, he contends that the trial court erred by imposing an MDO sentence without an
MDO Finding
{10} Hooks first argues that the trial court erred by imposing an MDO sentence without an MDO specification attached to Counts 11 and 13 of the indictment. Hooks claims that
{11} Section 10, Article I of the Ohio Constitution provides that “no person shall be held to answer for a capital, or otherwise infamous, crime, unless on presentment or indictment of a grand jury.” Crim.R. 7(B) explains the structure and sufficiency requirements of an indictment: “The statement [of the offense(s)] may be made in ordinary and concise language without technical averments or allegations not essential to be proved.” “The statement may be in the words of the applicable section of the statute, provided the words of that statute charge an offense, or in words sufficient to give the defendant notice of all the elements of the offense with which the defendant is charged.” Id. “The purpose of a grand jury indictment has always been to give notice to the accused.” State v. Horner, 126 Ohio St.3d 466, 2010-Ohio-3830, ¶ 10. Specifically, “[t]he purposes of an indictment are to give an accused adequate notice of the charge, and enable an accused to protect himself or herself from any future prosecutions for the same incident.” State v. Buehner, 110 Ohio St.3d 403, 2006-Ohio-4707, ¶ 7.
{12} Major Drug Offender means “an offender who is convicted of or pleads guilty to the possession of, sale of, or offer to sell any drug, compound, mixture, preparation, or substance” which may consist of or contain certain quantities of controlled substances, including “at least one hundred grams of cocaine,” “one hundred grams of heroin,” or “one hundred grams of a fentanyl-related compound.”
{13} Hooks was found guilty of trafficking in cocaine in violation of
{14} Specifically, the language of Count 11 mirrors that of
{15} Similarly, the language of Count 13 mirrors that of
{16} We find that because
{17} Assignment of Error No. 2:
{18} THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE.
{19} Hooks next argues, under both his first and second assignments of error, that the state failed to present sufficient evidence to prove the school enhancement. As such, Hooks argues he could only be convicted of second-degree felony trafficking in Counts 1, 3, and 5, rather than the first-degree felony trafficking counts of which he was found guilty. Hooks makes no argument regarding the admissibility of the Google Maps images introduced to show that the transactions occurred “in the vicinity of a school premises.” Instead, he argues that the map and accompanying testimony is insufficient to prove the school enhancement.
School Enhancements
{20} Whether the evidence presented at trial is legally sufficient to sustain a verdict is a question of law. State v. Tolle, 12th Dist. Preble No. CA2020-10-015, 2021-Ohio-3401, ¶ 9. When reviewing the sufficiency of the evidence underlying a criminal conviction, an appellate court examines the evidence to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt. State v. Roberts, 12th Dist. Warren No. CA2020-12-089, 2021-Ohio-3073, ¶ 12. The relevant inquiry is, after viewing the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Terry, 12th Dist. Warren No. CA2021-04-029, 2021-Ohio-4043, ¶ 9.
{21}
{22} An offense is “committed in the vicinity of a school” if the offender commits the offense “within one thousand feet of the boundaries of any school premises, regardless of whether the offender knows the offense is being committed * * * within one thousand feet of the boundaries of any school premises.”
{23} Hooks was found guilty of three counts of trafficking in heroin in violation of
{24} Hooks now argues that the state failed to prove his vicinity to a school premises, specifically contending that an officer must have firsthand information about distance to prove a school enhancement, and that the use of Google Maps is insufficient to prove the school enhancement.
{25} We are concerned here with only whether Schweitzer‘s testimony and the Google Maps images were sufficient evidence that Hooks’ drug sales occurred within 1,000 feet of the boundaries of a school premises. That is, whether such evidence, if believed, would convince the average mind of Hooks’ guilt beyond a reasonable doubt. We find that such evidence is sufficient for the jury to find that Hooks trafficked in drugs in the vicinity of a school.3 The Google Maps images, depicting the proximity of Hooks’ apartment to Lakota West High School, in conjunction with Detective Schweitzer‘s testimony that the images were fair and accurate depictions of the area and the process he followed in calculating the distance, if believed, prove that Hooks sold drugs within 1,000 feet of Lakota West High School premises. The Google Maps images and Detective Schweitzer‘s testimony adequately identified the premises upon which Lakota West High School is situated and outlines property boundaries. Obviously, instruction, extracurriculars and educational
{26} For these reasons, we overrule Hooks’ first and second assignments of error as regards sufficiency of the evidence offered in support of the school enhancement.
Toxicology
{27} Hooks next argues that the state‘s three toxicologists failed to state that their opinions on controlled substances and weight were made within a reasonable degree of scientific certainty, and that consequently, there was insufficient evidence to prove that Hooks trafficked heroin and cocaine.
{28} Evid.R. 702 provides that a witness may testify as an expert if (1) the witness’ testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons; (2) the witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony; and (3) the witness’ testimony is based on reliable scientific, technical, or other specialized information. State v. Cooperstein, 12th Dist. Warren No. CA2018-09-117, 2019-Ohio-4724, ¶ 50. “The qualifications which may satisfy these requirements are ‘multitudinous.“’ State v. McCrone, 12th Dist. Warren No. CA2018-01-007, 2019-Ohio-337, ¶ 32, quoting State v. Mack, 73 Ohio St.3d 502, 511 (1995).
{29} Three forensic scientists testified as to the content and weight of the drugs seized in the controlled purchases. Each of the three experts testified as to their qualifications, and the methodology of the tests they performed to determine the content and weight of the drugs seized following the controlled purchases from Hooks.
{30} The first expert, Todd Yoak, testified that he was a forensic chemist with Miami Valley Regional Crime Lab (“MVRCL“) with 16 years of experience in that capacity. He also
{31} Yoak was asked by the state, “And your conclusion that it does or does not contain that particular drug, it [sic] that done to a reasonable degree of scientific certainty?” Yoak answered that he was confused, and the state acknowledged it was “a poorly worded question” then rephrased the question, “[A]re you then able to say, to the best of your ability as a forensic chemist, that the substance you‘ve analyzed is what you say it is?” (Emphasis added.) Yoak answered affirmatively, and the state repeatedly used the same phrasing, “the standard of being a forensic chemist” to ask Yoak about his other conclusions measuring the various batches of drugs.
{32} Later, when cross-examined by Hooks’ trial counsel, Yoak stated “I am testifying * * * based on my training, education, and experience, I am confident that these items contain the drugs I identified on the report.” He testified in response to another question on cross examination that he does “the same testing on everything in the same analytical scheme,” agreeing with Hooks’ trial counsel that such testing is “what‘s generally done in the scientific community.”
{33} The next expert witness was Hillary Loucks, who was also forensic chemist at the MVRCL with 4.5 years of experience in that capacity. Loucks testified that she had a Bachelor of Science (“B.S.“) in forensic science with an emphasis on chemistry, that she had previously testified as an expert on seven occasions, and that her conclusions regarding the content and weight of the drugs in the report submitted as an exhibit represented conclusions “as a forensic chemist.”
{34} Finally, Jennifer Watson testified that she served as the Chemistry Technical Leader at the MVRCL, where she was responsible for ensuring the quality of the testing
{35} All three expert witnesses laid out their credentials and experience, and all three testified that they reached their conclusions regarding the drugs based upon those qualifications. Nonetheless, “[t]he state‘s failure to more effectively present [the] witness’ testimony to the trier of fact is vexing to this court.” State v. Gagaris, 12th Dist. Butler No. CA2007-06-142, 2008-Ohio-5418, ¶ 29. However, having reviewed the evidence in the record in the light most favorable to the state, we find that any rational trier of fact could have found the identity of the substances proven beyond a reasonable doubt. Id.
{36} While it is true that the witnesses did not verbatim affirm that their findings regarding the content and weight of the drugs “were made within a reasonable degree of scientific certainty,” their testimony regarding their credentials and the scientific testing they performed, rendered their testimony compliant with the strictures of Evid.R. 702. Witnesses need not make a talismanic incantation concerning their scientific certainly where their testimony has otherwise established that they are speaking pursuant to their “specialized knowledge, skill, experience, training, or education.” Evid.R. 702(B).
{37} Hooks’ second assignment of error is without merit and is therefore overruled.
{38} Assignment of Error No. 3:
{39} THERE WERE CUMULATIVE ERRORS AT TRIAL THAT DEPRIVED HOOKS OF HIS RIGHTS TO EFFECTIVE ASSISTANCE AND DUE PROCESS UNDER THE FEDERAL AND OHIO CONSTITUTIONS.
{40} Hooks next argues that cumulative errors by his trial counsel and the trial court implicated his right to a fair trial, entitling him to a reversal of his convictions. Specifically, he asserts error in (1) the trial court preventing Hooks’ counsel from eliciting evidence about
{41} At the outset, “[w]e note with disapproval appellant‘s shotgun approach of raising several, unrelated issues under the guise of cumulative errors in one assignment of error, instead of properly raising specific issues in separate assignments of error.” State v. Wilson, 12th Dist. Warren No. CA2018-03-022, 2019-Ohio-338, ¶ 24; see also 12th Dist.Loc.App.R. 11(B)(3).
{42} Under the doctrine of cumulative errors, a judgment may be reversed if the cumulative effect of errors deprives a defendant of a fair trial even though each of the instances of trial-court error does not individually constitute cause for reversal. State v. Myers, 12th Dist. Warren No. CA2019-07-074, 2021-Ohio-631, ¶ 152. Harmless or nonprejudicial errors cannot become prejudicial by sheer number of alleged errors alone. State v. Turner, 12th Dist. Brown No. CA2019-05-005, 2020-Ohio-1548, ¶ 58. In addition, “[i]t is not enough simply to intone the phrase ‘cumulative error.“’ State v. Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, ¶ 197. We will address each error Hooks alleges.
{43} As suggested above, Hooks’ claim of reversible cumulative error is based in part upon ineffective assistance of counsel in failing to object to certain testimony and evidence. To establish ineffective assistance of counsel, appellant must show (1) deficient
{44} We first note that Hooks’ fifth purported error is duplicative of his argument already addressed in this opinion. As previously established, because
1. Miranda Evidence
{45} Hooks first challenges the trial court‘s decision to sustain the state‘s objection to trial counsel‘s inquiry regarding Hooks’ custodial statements to officers. In cross examining Detective Spanel, Hooks’ trial counsel asked whether Detective Spanel had delivered Miranda warnings to Hooks. Counsel then inquired if the detective had told appellant that he had the right to an attorney. The state objected to both questions on the basis of relevance, arguing that not only had Detective Schweitzer previously testified that he delivered Miranda warnings, but the trial court had already previously ruled on the admissibility of Hooks’ statements in disposing of a prior motion to suppress evidence. As such, the trial court sustained the state‘s objection.
{46} The admissibility of evidence is within the sound discretion of the trial court and the trial court is entitled to our deference in making decisions upon the admissibility of
{47} Hooks does not identify any substantial prejudice suffered as a result of the trial court‘s decision to sustain the state‘s objection. That is, he does not identify what he would have accomplished if the trial court had not sustained the objection. Hooks had already filed a motion to suppress, which had been denied following a pretrial hearing. Appellant may have sought to undermine the weight of his statement, but appellant had already been advised of Miranda by the time he made his statements.
2. Toxicologists’ Opinions
{48} Hooks next challenges both the admissibility of the toxicologists’ statements “without testimony under Rule 702(C) about reliability” and his trial counsel‘s failure to object to the statements. This is slightly different from his sufficiency challenge addressed above and we address these arguments accordingly.
{49} A trial court‘s role in determining whether an expert‘s testimony is admissible under Evid.R. 702(C) focuses on whether the opinion is based upon scientifically valid principles, not on whether the expert‘s conclusions are correct or whether the testimony satisfies the proponent‘s burden of proof at trial. State v. Hawkins, 12th Dist. Warren No. CA2020-07-039, 2021-Ohio-3072, ¶ 35. The decision to admit or exclude expert testimony lies within the sound discretion of the trial court. State v. Ritchie, 12th Dist. Warren No. CA2017-11-155, 2018-Ohio-4256, ¶ 94.
{50} As established above, the testimony of the expert witnesses regarding their
3. Jury Definition of School Premises
{51} Hooks next argues that because there was no jury instruction on the definition of a school premises, he “lost the opportunity to argue for reduced offenses.” A “school premises” definition is not included as a standard jury instruction by OJI. See Ohio Jury Instructions, CR Section 525.03 (Rev. Nov. 18, 2017). Moreover, there is no indication that such an instruction would be helpful to Hooks. As noted above, “[s]chool premises” is defined as “[t]he parcel of real property on which any school is situated, whether or not any instruction, extracurricular activities, or training provided by the school is being conducted on the premises at the time a criminal offense is committed.”
{52} Hooks argues that the school-premises definition “required the State to prove the school boundaries, the real-estate parcel that housed the school building, or a real-estate parcel owned by the district used for instruction, extracurriculars, or training.” This argument adds requirements to the statute, which only requires the state to prove that an offender committed the offense “within one thousand feet of the boundaries of any school premises.”
{53} Instructing the jury that “school premises” refers to that parcel of real property on which a school is situated would not have opened additional arguments to Hooks. Hooks was not precluded from arguing to the jury that the Google Maps images and Detective Schweitzer‘s testimony did not prove beyond a reasonable doubt that Hooks committed the
4. Felony Stipulations
{54} Hooks next argues that the trial court erred by permitting four judgment entries reflecting his prior felony drug convictions to go to the jury as evidence. Hooks stipulated to the convictions, and the state submitted certified copies of the judgment entries reflecting Hooks’ prior convictions into evidence. The trial court instructed the jury that its consideration of Hooks’ prior convictions was limited to the prior conviction element of the having weapons under disability offense.
{55} The Ohio Supreme Court previously held that a trial court abuses its discretion when “it refuses a defendant‘s offer to stipulate to the fact of the prior conviction or indictment and instead admits into evidence the full record of the prior judgment or indictment when the sole purpose of the evidence is to prove the element of the defendant‘s prior conviction or indictment.” State v. Creech, 150 Ohio St.3d 540, 2016-Ohio-8440, ¶ 40. The state asserts that admission of the judgment entries was not erroneous because Hooks’ stipulation was only to their admissibility, not to the fact of his prior convictions. Thus, the state argues that the judgment entries were necessary to prove the prior conviction element of the having weapons under disability offense. However, the record
{56} Hooks contends that he was denied effective assistance of counsel because trial counsel permitted the judgment entries to go to the jury.5 However, even if we were to find counsel‘s performance deficient in this regard, based on the overwhelming evidence presented against him, Hooks cannot show any resulting prejudice.6 State v. Rodriguez, 12th Dist. Butler No. CA2008-07-162, 2009-Ohio-4460, ¶ 72; see also State v. Grate, 164 Ohio St.3d 9, 2020-Ohio-5584, ¶ 137. To the extent that Hooks is claiming error separate from his ineffective assistance argument, his trial counsel‘s errors are harmless for the same reasons. State v. Haynes, 12th Dist. Butler No. CA2010-10-273, 2011-Ohio-5743, ¶ 11.
{57} We find no error here.
5. Detective Spanel‘s Testimony
{58} Hooks next argues that Detective Spanel‘s testimony that Hooks agreed to cooperate with officers in exchange for consideration and subsequently failed to do so was improper and prejudicial. Testimony established that Hooks provided police with information leading to a search warrant yielding 1000 grams of a controlled substance, but that he did not provide further assistance. The testimony concerning Hooks’ promise of cooperation with police was first elicited during Hooks’ cross-examination of Detective Spanel. On re-direct, Detective Spanel testified that Hooks had directed officers to a house
6. Detective Schweitzer‘s Testimony
{59} Hooks next argues that Detective Schweitzer‘s testimony regarding Hooks’ sale of fentanyl, and the danger of fentanyl, was inappropriate and unfairly prejudicial because Hooks was not charged with possession or trafficking of fentanyl. However, the substances purchased from Hooks on at least three occasions contained fentanyl. As such, we find that the testimony was highly relevant and that its probative value was not substantially outweighed by the danger of unfair prejudice. Evid.R. 403(A). Trial counsel‘s failure to object likewise did not constitute error.
{60} Because we have found that no errors occurred during Hooks’ trial, we find that Hooks was not deprived of a fair trial, and the cumulative error doctrine is inapplicable. Hooks’ sixth assignment of error is overruled.
{61} Judgment affirmed.
S. POWELL and PIPER, JJ., concur.