Case Information
*1
[Cite as
State v. Jefferson
,
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO,
Plaintiff-Appellee,
v.
ANTOINE JEFFERSON,
Defendant-Appellant.
JUDGES:
Hon. W. Scott Gwin, P. J.
Hon. John W. Wise, J.
Hon. Patricia A. Delaney, J.
Case No. 11 CAA 04 0033
O P I N I O N
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 10 CR I 04 0238 JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 17, 2012 APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant CAROL HAMILTON O'BRIEN ELIZABETH N. GABA PROSECUTING ATTORNEY 1231 East Broad Street DOUGLAS DUMOLT Columbus, Ohio 43205 ASSISTANT PROSECUTOR
140 N. Sandusky Street, 3rd Floor
Delaware, Ohio 43015
Wise, J. Defendant-Appellant Antoine Jefferson appeals his conviction and
sentence on tampering with evidence and obstructing official business, entered in the Delaware County Common Pleas Court following a jury trial. Plaintiff-Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE On April 8, 2010, Trooper Matthew Himes of the Ohio State Highway Patrol was working drug interdiction on Interstate 71 in Delaware County Ohio. At approximately 10:00 a.m., he was stationary, in a marked patrol car watching traffic pass by. At approximately 10:05 a.m., Trooper Himes observed a green Land Rover travelling northbound on I-71. As the vehicle passed him, Trooper Himes ran the license plate through the Law Enforcement Automated Data Systems (LEADS) which revealed that the Ohio driver's license of the vehicle's registered owner expired in 1999. Further, it showed the vehicle was purchased in July, 2009, in Ohio. Trooper Himes pulled up beside the vehicle, identified the driver as the
registered owner by his physical description, and initiated a traffic stop for driving without a valid license. Once the vehicle was stopped, Trooper Himes approached the vehicle and made contact with Appellant, the driver of the vehicle. When asked, Appellant indicated that he did not have an Ohio driver's
license. He indicated that he was a Georgia resident and had a Georgia driver's license. Appellant presented his Georgia driver's license to Trooper Himes, who returned to his cruiser to check its validity. *3 According to Trooper Himes, while at his vehicle, but before he had
determined the validity of Appellant's license or his state or residency, he radioed Trooper Norman to bring his canine partner to the scene. According to Trooper Himes, at that time he had already learned that just four days prior to the traffic stop, Appellant had been convicted of driving without a valid license in Mansfield Municipal Court. He had also learned that the vehicle Appellant was driving had been purchased in Ohio nine months prior. While Trooper Himes was still awaiting the status of Appellant's license
and checking his criminal history, Trooper David Norman and his canine partner arrived on the scene. Trooper Norman had his canine partner conduct a free-air sniff around the vehicle. At that time, the canine alerted on the vehicle for the odor of narcotics. When the canine alerted on Appellant's vehicle, the Troopers conducted a probable cause search of the motor vehicle. Appellant and his passenger were removed from the vehicle, Appellant was read his Miranda rights and then placed, without handcuffs, in the back of Trooper Himes' cruiser while the search was conducted. Prior to placing Appellant in the back of his cruiser, Trooper Himes asked
him if he carried a knife or any kind of weapon. Appellant denied having any weapons and consented to a pat-down search for weapons. Trooper Himes stated that while the other troopers were continuing the
search of Appellant's vehicle, he returned to his cruiser and spoke with Appellant about the odor of narcotics in his vehicle. Appellant stated that there were no narcotics in the vehicle and that he had the vehicle cleaned a few days prior to the traffic stop. *4 Trooper Himes then left his cruiser and returned to Troopers Norman and Wilson, who were at the front of Appellant's vehicle. It was at this time that Trooper Wilson approached Appellant, and Trooper Himes attempted to search the engine compartment of the motor vehicle for concealed contraband. While Trooper Himes was attempting to locate a hood release for Appellant's vehicle, he noticed Trooper Wilson and Appellant in a struggle. Trooper Himes ran back to assist, but before he got back to his cruiser, Appellant had fallen down, gotten up, and was climbing over a barbed wire fence. Trooper Himes deployed his laser, but it was ineffective. According to Trooper Wilson, he had approached the Appellant seated in
Trooper Himes' cruiser and asked Appellant to exit the cruiser so that he could perform a search of Appellant’s person. Trooper Wilson stated that he had noticed a heightened level of nervousness throughout the traffic stop that did not dissipate as it does in the course of a typical traffic stop. Trooper Wilson explained that he was performing a consensual search for drugs based on the "nervousness" of the defendant, positive canine hit, and absence of contraband in the vehicle. Trooper Wilson stated that he asked Appellant for permission to perform
the search and that Appellant gave verbal consent. During the pat down, Trooper Wilson started on Appellant's right side and came down his right front pocket, down the side of his right leg, and back up the inside of his right leg. At no point did he manipulate any object to determine its identity." When he reached the inside of Appellant's right leg, he felt what he believed to be a plastic baggie containing crack cocaine. At that time, Appellant attempted to elbow Trooper Wilson in the head and started to run. Trooper Wilson grabbed his sweatshirt and held on and attempted to throw him to the ground. *5 Unable to do so, Trooper Wilson spun him in a circle and let go. Appellant then proceeded to get up and take off running. The three troopers pursued him and called for him to stop. Two of the troopers attempted to stun Appellant with their tasers, but were unable to stop him from climbing over a barbed wire fence near the highway and fleeing the scene. Trooper Himes, Trooper Norman, and Trooper Wilson pursued Appellant
over the fence, while Sergeant Kemmer stayed with Appellant's companion and the cruisers. The troopers continued to chase Appellant for approximately two hundred yards to a small lake, which Appellant jumped into. Appellant swam out approximately thirty yards into the "muck," roughly chest deep in the water, and the troopers watched him destroying the suspected contraband. Appellant then returned to shore with his pants down around his legs, weighed down from the water and the mud. He also had cuts from the pursuit, so a squad was called to treat Appellant's injuries. Appellant was placed under arrest. On April 16, 2010, the Grand Jury of Delaware County indicted Appellant
Antoine Jefferson on one count of Tampering with Evidence, in violation of R.C. §2929.12(A)(1), a third degree felony, and one count of Obstructing Official Business, in violation of R.C. §2921.31(A), a fifth degree felony. On August 31, 2010, Appellant filed a motion to suppress. On October 8, 2010, a hearing was held on Appellant’s motion to
suppress. By Judgment Entry filed October 18, 2010, the trial court denied
Appellant’s motion to suppress.
On March 3, 2011, this matter proceeded to jury trial.
The jury found Appellant guilty as charged.
Appellant now appeals, assigning the following errors for review: ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT'S FOURTH AMENDMENT RIGHTS TO THE U.S. CONSTITUTION AND ARTICLE ONE SECTION FOURTEEN OF THE OHIO CONSTITUTION BY OVERRULING HIS MOTION TO SUPPRESS EVIDENCE, AS
“a) THERE WAS NO LEGITIMATE REASON FOR THE UNDERLYING TRAFFIC STOP (PLAIN ERROR ANALYSIS),
“b) THE STOP'S SCOPE AND DURATION WERE IMPROPER AND THE DETAINMENT OF APPELLANT IN THE POLICE CRUISER WHILE THE POLICE ENGAGED IN A "FISHING EXPEDITION" WAS UNLAWFUL,
“c) THE POLICE HIDING EVIDENCE BY TURNING OFF THEIR MICROPHONES WAS UNLAWFUL, AND VIOLATED APPELLANT'S 5TH, 6TH, AND 14TH AMENDMENT RIGHTS
“d) THE FIRST SEARCH WAS IMPROPER, AND “e) THE SECOND SEARCH OF DEFENDANT'S BODY WAS UNLAWFUL.
“ALL EVIDENCE AND STATEMENTS OBTAINED AFTER THE SEARCH SHOULD HAVE BEEN SUPPRESSED AND THE CASE DISMISSED.
“II. THE TRIAL COURT COMMITTED STRUCTURAL, CONSTITUTIONAL AND/OR PLAIN ERROR TO THE PREJUDICE OF APPELLANT, *7 AND THE JUDGE EXCEEDED HIS STATUTORY AUTHORITY BY INSERTING HIMSELF IN THE PLEA ARRANGEMENTS AND ORDERING APPELLANT THAT HE MUST ADMIT THAT HE POSSESSED DRUGS, WHEN HE DID NOT, AS A CONDITION OF ANY PLEA ARRANGEMENT. “III. THE TRIAL COURT ERRED AS A MATTER OF LAW, TO THE
PREJUDICE OF APPELLANT, WHEN IT STRUCK DEFENDANT'S OPENING STATEMENT AND QUESTIONS, CONVEYING TO THE JURY THE COURT'S VIEW ABOUT THE DEFENDANT'S FAILURE TO TESTIFY, AND ERRED WHEN IT DENIED THE DEFENSE MOTION FOR MISTRIAL. “IV. THE TRIAL COURT ERRED AS A MATTER OF LAW, TO THE
PREJUDICE OF APPELLANT, BY CONVICTING APPELLANT, BECAUSE THIS CONVICTION WAS BOTH AGAINST THE MANIFEST WEIGHT OF THE. EVIDENCE AND THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE CONVICTION. “V. APPELLANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL, IN VIOLATION OF HIS 6TH AMENDMENT RIGHTS, WHEN DEFENSE COUNSEL FAILED TO SHOW THE CD AT TRIAL AND FAILED TO HAVE APPELLANT TESTIFY.”
I. In his first assignment of error, Appellant argues that the trial court erred in
overruling his motion to suppress. We disagree. There are three methods of challenging on appeal a trial court's ruling on a
motion to suppress. First, an appellant may challenge the trial court's findings of fact. In
reviewing a challenge of this nature, an appellate court must determine whether the
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findings of fact are against the manifest weight of the evidence. See State v. Fanning (1982)
conclusion on the ultimate issues. Our review is therefore de novo. Appellant alleges that the traffic stop was unconstitutionally delayed and
further that the searches of his person were unconstitutional. Appellant also argues that the traffic stop was not based on a reasonable and articulable suspicion of criminal activity. With regard to Appellant’s challenge to probable cause for the traffic stop,
we find that Appellant did not raise this issue in his motion to suppress before the trial
court. It is well established that a party cannot raise any new issues or legal theories
for the first time on appeal." Dolan v. Dolan, 11th Dist. Nos. 2000-T-0154 and 2001-T-
*9
0003,
reasonable articulable suspicion for the traffic stop in this matter based on information he garnered through a random license plate check. Such check revealed that the registered owner of the vehicle had an expired driver’s license, and upon pulling alongside the vehicle, the trooper was able to see that Appellant fit the description of the registered owner. We must next consider the propriety of the trooper's detention of Appellant
and his vehicle at the traffic stop. We recognize the general rule that the scope and duration of an investigatory stop must last no longer than is necessary to effectuate the purpose for which the initial stop was made. See, e.g., State v. Bevan (1992), 80 Ohio App.3d 126, 129. This Court has concluded: “[W]hen a motorist is lawfully detained pursuant
to a traffic stop and when the purpose of the traffic stop has yet to be fulfilled, the Fourth Amendment is not violated when the officer employs a trained narcotics canine to sniff the vehicle for drugs.” State v. Latona, Richland App. No.2010-CA-0072, 2011-Ohio- 1253, ¶25, citing State v. Guckert (Dec. 20, 2000), Washington App. No. 99CA49, 2000- Ohio-1958. *10 Furthermore, when detaining a motorist for a traffic violation, an officer
may delay a motorist for a time period sufficient to issue a ticket or a warning, including
the time sufficient to run a computer check on the driver's license, registration, and
vehicle plates. State v. Brown, Tuscarawas App.No. 2009AP050024,
dispatcher to check Appellant's license and warrant status. While he was awaiting a response, he decided to call a K9 unit to conduct an exterior drug sniff. We therefore conclude that the brief detention of Appellant in this instance
to allow for the computer check on Appellant's driver’s license status and to conduct a non-invasive drug dog sniff of the car's exterior was also constitutionally valid. Appellant also challenges the pat-down searches of his person. Appellant herein essentially argues that the evidence of his actions, which occurred immediately after he was being searched, should have been suppressed. We find the fundamental issue in this case, however, is whether Appellant's independent criminal activity would have been “fruit of the poisonous tree” and thus subject to suppression, even if we were to find the police seizure was illegal. The Fourth Amendment prohibits unreasonable searches and seizures.
“However, an observation of a fresh crime committed during or after the arrest is not to
be suppressed even if the arrest is unlawful.” State v. Ali, 154 Ohio App.3d 493, 797
N.E.2d 1019, 2003–Ohio–5150, ¶ 13. “The Fourth Amendment's exclusionary rule,
which [the defendant] seeks to invoke, does not sanction violence as an acceptable
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response to improper police conduct. The exclusionary rule only pertains to evidence
obtained as a result of an unlawful search and seizure.” Id. at ¶ 16,
{¶45} Here, we find that the conduct for which Appellant was arrested and charged, obstructing official business and tampering with evidence, was unrelated to and independent of such searches.
{¶46} Based on the foregoing, we find that the trial court therefore correctly decided the ultimate issues raised in Appellant's motion to suppress . Appellant’s first assignment of error is overruled.
II. In his second assignment of error, Appellant claims that the trial court
erred in participating in the plea negotiations. We disagree. In this case, Appellant challenged the State’s recitation of the facts. Under Ohio law, trial courts may reject plea agreements and are not
bound by a jointly recommended sentence. State v. Underwood, 124 Ohio St.3d 365,
Appellant’s plea. We therefore find Appellant’s argument not well-taken.
III. In his third assignment of error, Appellant argues that the trial court erred
in not granting a mistrial. We disagree. During opening statements in this case, defense counsel made a number
of statements concerning Appellant’s reasons for being uncomfortable with the pat-
down search, his fear of dogs and taser guns, the fact that he possessed a valid
Georgia driver’s license and that he never intended to run from the police. A short while
into the trial, defense counsel informed the trial court that he had decided to not have
Appellant take the witness stand. Based on the lack of evidence in support of any the
assertions made in opening statements, the trial court struck defense counsel’s opening
statements. Following closing arguments, defense counsel moved the trial court for a
mistrial based on the trial court’s statements to the jury striking the opening statements.
The granting of a mistrial rests within the sound discretion of the trial
court, as it is in the best position to determine whether the situation at hand warrants
such action. State v. Glover (1988),
error or irregularity has intervened * * *.” State v. Reynolds (1988),
strike the improper statements contained in the opening statements and provide the jury with a limiting instruction. Appellant’s third assignment of error is overruled.
IV. In his fourth assignment of error, Appellant argues that his conviction is
against the manifest weight and sufficiency of the evidence. In determining whether a verdict is against the manifest weight of the
evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire
record, weighs the evidence and all reasonable inferences, considers the credibility of
witnesses, and determines whether in resolving conflicts in evidence the jury ‘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. Thompkins, 78 Ohio St.3d 380, 387, 678
N.E.2d 541, 1997–Ohio–52, quoting State v. Martin (1983), 20 Ohio App.3d 172, 175,
evidence is to determine 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
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crime proven beyond a reasonable doubt. State v. Jenks (1991),
{¶61} In the instant case, Appellant was convicted of obstructing official business and tampering with evidence.
{¶62} The elements of the offense of obstruction of official business are set forth in R.C. §2921.31(A), and are as follows: “No person, without privilege to do so and with purpose to prevent,
obstruct, or delay the performance by a public official of any authorized act within the public official's capacity, shall do any act that hampers or impedes a public official in the performance of the official's lawful duties.” The crime of Tampering with Evidence is set forth in R.C. §2921.12(A)(1),
and provides in pertinent part: “(A) No person, knowing that an official proceeding or investigation is in
progress, or is about to be or likely to be instituted, shall do any of the following: “(1) Alter, destroy, conceal, or remove any record, document, or thing, with purpose to impair its value or availability as evidence in such proceeding or investigation;” In this case, the State presented evidence to support the charge of
obstructing official business. Appellant had been stopped for a traffic search and was being searched by a State Highway Patrolman when he took off running away from the officer. The officers were required to pursue Appellant and then call an ambulance to have Appellant’s minor injuries treated. Appellant’s actions delayed the performance of the completion of the traffic stop and search of Appellant’s person. *15 The State also presented evidence that Appellant ran away from the
patrolmen immediately upon Trooper Himes’ discovery of an object in appellant’s pant
that he believed to be crack cocaine. While the patrolmen were chasing Appellant, he
ran into a lake, removed something from his pant and dropped it into the murky water.
The weight to be given to the evidence and the credibility of the witnesses
are issues for the trier of fact. State v. Jamison (1990),
conclude that a reasonable person could have found beyond a reasonable doubt that Appellant’s actions were done to “alter, destroy, conceal, or remove any record, document, or thing, with purpose to impair its value or availability as evidence in such proceeding or investigation.” Based on the foregoing, we find that the State met its burden of production
regarding each element of the crime and, accordingly, there was sufficient evidence to support Appellant's convictions. “A fundamental premise of our criminal trial system is that ‘the jury is the
lie detector.’ United States v. Barnard, 490 F.2d 907, 912 (C.A.9 1973) (emphasis
added), cert. denied,
V. In his fifth and final assignment of error, Appellant argues that he was
deprived of his right to the effective assistance of counsel. We disagree. A claim of ineffective assistance of counsel requires a two-prong analysis.
The first inquiry is whether counsel's performance fell below an objective standard of
reasonable representation involving a substantial violation of any of defense counsel's
essential duties to Appellant. The second prong is whether Appellant was prejudiced by
counsel's ineffectiveness. Lockhart v. Fretwell (1993),
standard of reasonableness, judicial scrutiny of counsel's performance must be highly deferential. Bradley, 42 Ohio St.3d at 142, 538 N.E.2d 373. Because of the difficulties inherent in determining whether effective assistance of counsel was rendered in any given case, a strong presumption exists that counsel's conduct fell within the wide range of reasonable, professional assistance. Id. In order to warrant a reversal, Appellant must additionally show he was
prejudiced by counsel's ineffectiveness. This requires a showing that counsel's errors were so serious as to deprive the defendant of a fair trial; a trial whose result is reliable. Strickland 466 U.S. at 687, 694, 104 S.Ct. at 2064; 2068. The burden is upon the *17 defendant to demonstrate that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. Bradley, supra at syllabus paragraph three. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, supra; Bradley, supra. In the instant case, Appellant asserts trial counsel was ineffective for failing to introduce the video of the traffic stop and further, that counsel should have allowed him to testify in his own defense. Decisions regarding which defense to pursue at trial is a matter of trial
strategy “within the exclusive province of defense counsel to make after consultation
with his client.” State v. Murphy, 91 Ohio St.3d 516, 524,
strategy and, absent prejudice, generally will not constitute ineffective assistance of
counsel. State v. Hessler, Franklin App. No. 01AP-1011,
stop and not to call Appellant to the stand was a tactical decision, and the Ohio
Supreme Court has stated “[w]e will ordinarily refrain from second-guessing strategic
decisions counsel make at trial, even where counsel's trial strategy was questionable.
State v. Clayton (1980),
decision not to testify. (T. at 173). Appellant’s fifth assignment of error is overruled. For the foregoing reasons, the judgment of the Court of Common Pleas of
Delaware County, Ohio, is affirmed.
Judgment affirmed.
By: Wise, J.
Gwin, P. J., and Delaney, J., concur.
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
ANTOINE JEFFERSON :
:
Defendant-Appellant : Case No. 11 CAA 04 0033 For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Delaware County, Ohio, is affirmed.
Costs assessed to Appellant.
___________________________________ ___________________________________ ___________________________________ JUDGES