Case Information
*1
[Cite as
State v. Keister
,
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 29081 :
v. : Trial Court Case No. 2019-CR-1973
:
MICHAEL KEISTER : (Criminal Appeal from
: Common Pleas Court) Defendant-Appellant :
:
. . . . . . . . . . .
O P I N I O N
Rendered on the 18th day of March, 2022.
. . . . . . . . . . .
MATHIAS H. HECK, JR. by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
JON PAUL RION, Atty. Reg. No. 0067020 & CATHERINE H. BREAULT, Atty. Reg. No. 0098433, 130 West Second Street, Suite 2150, Dayton, Ohio 45402
Attorneys for Defendant-Appellant
. . . . . . . . . . . . .
TUCKER, P.J.
-2- Michael Keister was convicted after a jury trial in the Montgomery County Court of Common Pleas of aggravated possession of drugs (equal to or greater than five times the bulk amount, but less than 50 times the bulk amount), tampering with evidence, having weapons while under disability, and illegal conveyance of drugs of abuse onto the grounds of a detention facility. The court imposed concurrent sentences totaling a mandatory minimum term of 8 years to a maximum term of 12 years in prison. Keister appeals from his convictions, claiming that (1) the trial court erred in denying his motion to suppress, (2) his convictions were based on insufficient evidence and against the manifest weight of the evidence, (3) he was denied his right to a fair trial due to lack of access to his attorney and lack of assistance in building his defense, and (4) his sentence is not supported by the record. For the following reasons, the trial court’s judgment will be affirmed.
I. Facts and Procedural History At approximately 9:00 p.m. on June 15, 2019, Keister was involved in a
single-car crash while he was driving on eastbound U.S. 35 in Dayton. An off-duty Dayton police officer witnessed the crash and stopped to see if Keister needed assistance. While there, the officer observed Keister place items, including what appeared to be a firearm wrapped in a sweatshirt, in an Amazon box and then take the box toward a fence line near the highway. The officer relayed his observations to uniformed officers who responded to the crash, as well as to Officer Denlinger, another officer whom the off-duty officer had contacted directly. While Keister was being detained by uniformed officers for purposes of the crash investigation, Officer Denlinger
-3- located the box, which contained a firearm and Keister’s state identification card, among other things. At Denlinger’s instruction, Keister was arrested.
{¶ 4} Keister was transported to the Montgomery County Jail. During a search of Keister’s person as part of the booking process, a corrections officer located a baggie of suspected methamphetamine in Keister’s buttocks. On August 1, 2019, Keister was indicted on aggravated possession of drugs
(methamphetamine), a second-degree felony; having weapons while under disability, a third-degree felony; illegal conveyance of drugs of abuse onto the grounds of a detention facility, a third-degree felony; tampering with evidence, a third-degree felony; and carrying a concealed weapon, a fourth-degree felony. Keister moved to suppress the evidence against him. He asserted that he
was unlawfully detained in a police cruiser without reasonable suspicion, that the
detention was unlawfully prolonged, that the search at the jail stemmed from an unlawful
arrest, and that statements he made were involuntary or obtained in violation of Miranda
v. Arizona ,
a concealed weapon, and the remaining counts proceeded to a jury trial. After deliberations, the jury found Keister guilty of all charges. The trial court sentenced Keister to a mandatory minimum term of 8 years and a maximum term of 12 years in prison for aggravated possession of drugs, three years for heaving weapons while under disability, three years for illegal conveyance, and three years for tampering with evidence. All counts were to be served concurrently.
-4- {¶ 8} Keister appeals from his convictions.
II. Motion to Suppress
{¶ 9} In his first assignment of error, Keister claims that the trial court erred in denying his motion to suppress. In ruling on a motion to suppress, the trial court “assumes the role of the
trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate the credibility of the witnesses.” State v. Retherford , 93 Ohio App.3d 586, 592, 639 N.E.2d 498 (2d Dist.1994); State v. Knisley , 2d Dist. Montgomery No. 22897, 2010-Ohio- 116, ¶ 30. Accordingly, when we review suppression decisions, we must accept the trial court’s findings of fact if they are supported by competent, credible evidence. Retherford at 592. “Accepting those facts as true, we must independently determine as a matter of law, without deference to the trial court’s conclusion, whether they meet the applicable legal standard.” Id .
A. Facts from Suppression Hearing The State’s evidence at the suppression hearing consisted of the testimony of three Dayton police officers: Jack Miniard, David Denlinger, and Paul Gottlieb. Keister did not offer any witnesses on his own behalf. The State’s evidence established the following facts. At approximately 9:00 p.m. on June 15, 2019, Officer Miniard was traveling
eastbound on U.S. 35, approaching the Steve Whalen Boulevard exit, when he observed a 1980s white Oldsmobile “veer off the roadway to make the exit,” lose control, spin around, hit a light/utility pole, and come to rest in a ditch on the right side of the roadway near the fence line of Boltin Street. Miniard saw the driver put the car in reverse, but the
-5- tires spun and the vehicle was unable to back up. When the crash occurred, Miniard, an officer with more than 20 years of
experience with the Dayton police, was off-duty and traveling in his personal vehicle with his family. Miniard pulled over to the side of the road and called 911. Upon learning that crews from the East Division were “tied up” and responding officers were coming from a distance away, Miniard called Officer Denlinger, his former partner, and asked if he was available. Officer Denlinger responded that he was nearby in the Oregon District and was able to respond. While still seated in his own vehicle, Officer Miniard saw a passenger exit
the Oldsmobile and put his backpack in the vehicle’s trunk. Miniard then observed the driver, later identified as Keister, go to the rear of the car and move items around. Miniard got out of his vehicle, approached Keister without identifying himself, and asked if Keister needed assistance from the police, a medic, or a tow truck. Keister responded that he was fine and had called AAA, which would be there in approximately 45 minutes. Miniard noticed that Keister was putting multiple items in a large brown Amazon box, including the passenger’s backpack, a Folgers container, and a dark blue sweatshirt that appeared to have an item hidden in it. Based on the way Keister grabbed the sweatshirt and the shape of it, Miniard assumed the hidden object was a gun. As Miniard walked back to his car, he saw Keister take the Amazon box to the fence line in the area of Boltin and Hulbert Streets (about 25 yards away) and then return to the car. Keister again was walking away from the car as uniformed officers, Officers Gotlieb and Hudson, arrived. Miniard informed the officers where Keister was headed and indicated that he would return to the scene after taking his family home. At that point, Miniard had
-6- been at the scene for 10 to 15 minutes.
{¶ 16} As Miniard was leaving the scene, he saw the uniformed officers talking with the passenger, Jesse Ladd, who had remained by the Oldsmobile the entire time. He also observed Keister walking back toward his vehicle. Miniard noticed that Keister’s clothing had changed: he no longer was wearing a black do-rag or a red jersey with the number 3 on it and, instead, he was wearing an off-white tank top. Miniard also talked with Officer Denlinger and gave him the location of where he had seen Keister place the Amazon box. While Officer Gotlieb was speaking with Ladd, Keister approached them
from the other side of the fence, asked if everything was okay, and indicated that he knew Ladd. Keister did not immediately identify himself or indicate that he had been involved in the crash. Ladd whispered to the officers that the man was the driver of the vehicle. Officer Gotlieb asked Keister to come to the other side of the fence and sit in his cruiser. Keister willingly complied. Gotlieb conducted a pat down for weapons, and after removing Keister’s knife, placed him without handcuffs in his cruiser. Officer Gotlieb testified that he was going to investigate the crash and issue citations, likely for failure to control and possibly for hit and run. The cruiser video reflects that the officers continued speaking with Ladd.
After a few minutes, Gotlieb asked Keister if he knew who owned the car; Keister responded that he did not. Upon his arrival, Officer Denlinger checked on the status of the uniformed
officers and then drove into the neighborhood where Officer Miniard had indicated that Keister had taken the box. Denlinger located the box and took it to his cruiser. Inside,
-7- he found a handgun wrapped in a hoodie or towel and a blue backpack. The backpack contained a notebook/ledger, a needle, illegal narcotics, and Keister’s wallet with his state identification card. Officer Denlinger notified the uniformed officers of what he had found and asked them to detain the two occupants of the vehicle.
{¶ 20} Approximately 13 minutes after Keister was placed in the cruiser, Officer Gotlieb placed him under arrest. A few minutes later, the officer notified Keister of his Miranda rights using a laminated card provided by the Montgomery County Prosecutor’s Office. Gotlieb testified that Keister appeared to be somewhat intoxicated, but not to the point where he could not understand his rights. Keister agreed to speak with Gotlieb and made statements denying knowledge of the Amazon box, where the gun came from, who the driver was, and why his wallet with his identification was in the box. Officer Miniard returned after 10 to 15 minutes and parked on Boltin Street
near Denlinger’s cruiser. Officer Denlinger showed Officer Miniard the box, and Miniard confirmed that it was the box that he had seen being removed from the Oldsmobile. The gun was still wrapped in the sweatshirt, but Denlinger told Miniard that there was a gun inside. Upon his return, Miniard remained on the scene for more than 45 minutes,
until he and another officer located Keister’s jersey in a nearby alley. While he was there, he looked in the cruiser and confirmed that Keister was the driver he had seen. After being on-scene for roughly one hour, Officer Gotlieb transported Keister to the Montgomery County Jail. While Keister was in the prisoner intake room, a corrections officer found a bag of methamphetamine in Keister’s buttocks.
B. Length of Detention
-8- {¶ 24} On appeal, Keister does not claim that his initial detention itself was unlawful. Rather, he asserts that his detention was unlawfully prolonged to allow officers to locate the box that Officer Miniard had seen. The Fourth Amendment to the United States Constitution protects
individuals from unreasonable searches and seizures. Terry v. Ohio , 392 U.S. 1, 88
S.Ct. 1868, 20 L.Ed.2d 889 (1968). “The touchstone of the Fourth Amendment is
reasonableness.” Florida v. Jimeno ,
consensual encounter; (2) a brief investigatory stop or detention; and (3) an arrest. State
v. Weisgarber ,
guarantees are not implicated in such encounters. State v. Taylor ,
-9-
police merely approach a person in a public place and engage the person in conversation,
and the person remains free not to answer and to walk away. State v. Lewis , 2d Dist.
Montgomery No. 22726,
initiated, and the detention may not last longer than is necessary to accomplish that
purpose. See Rodriguez v. United States , 575 U.S. 348, 354, 135 S.Ct. 1609, 191
L.Ed.2d 492 (2015) (addressing whether officers unlawfully prolonged a traffic stop); State
v. Cook ,
Miniard was off-duty when the crash occurred, was in a private vehicle with his family, never identified himself as a police officer, and merely asked if Keister required assistance. Nothing in Miniard’s appearance or behavior suggested that Keister was subject to an investigatory detention. Keister’s initial contact with Officer Gotlieb also was a consensual
encounter. Keister approached Officer Gotlieb while he and his partner were speaking with Ladd, the passenger. Ladd whispered to the officers that Keister was the driver of the vehicle that crashed. Gotlieb then asked Keister to come to the other side of the fence and have a seat in this cruiser. Gotlieb testified that Keister willingly agreed to do so. According to the cruiser video, Keister was placed in the cruiser at 9:23 p.m. Keister asserts that he was subject to an investigatory detention when he was placed in the cruiser and that this detention was unlawfully prolonged to allow Officer Denlinger to find the Amazon box. Assuming that Keister was detained when he was placed in the cruiser (as opposed to willingly sitting there as part of the consensual encounter), the officers had reasonable and articulable suspicion of criminal activity to detain him. Officers Gotlieb and Hudson had responded to a crash and found a car that had collided with a utility pole. Keister had left the scene and, upon his return, was identified by the passenger as the driver of the vehicle. Further, Officer Gotlieb noticed that Keister showed signs of impairment. The officers were justified in detaining Keister to investigate the circumstances of the crash. That reasonable investigation included ascertaining Keister’s and Ladd’s identities and verifying that information, determining what occurred and the extent of the damage caused, and issuing citations.
{¶ 33} Moreover, Keister’s detention was justified to investigate the location and contents of the Amazon box. Only 13 minutes elapsed between when Keister was placed in the cruiser and his arrest, and the cruiser video shows that the officers were diligently investigating the crash involving Keister and Ladd during that time. And, the investigation of the location of the Amazon box was also ongoing during this 13-minute period. Keister’s first assignment of error is overruled.
III. Sufficiency and Manifest Weight of the Evidence In his second assignment of error, Keister claims that his convictions for
having weapons while under disability, tampering with evidence, and illegal conveyance were based on insufficient evidence and against the manifest weight of the evidence. He does not challenge his conviction for aggravated possession of drugs as against the manifest weight of the evidence. The State presented six witnesses at trial. The testimony of Officers
Miniard, Denlinger, and Gottlieb generally was consistent with their testimony at the suppression hearing. Gage Lesher, a corrections officer with the Montgomery County Sheriff’s Office, testified about the intake procedures for Keister at the Montgomery County Jail on June 15, 2019. Jennifer Watson, a forensic chemist and chemistry technical leader at the Miami Valley Regional Crime Lab (MVRCL), testified that she analyzed a substance submitted by the Dayton Police Department and found it to be 23.56 grams, plus or minus 0.02 grams, of a substance containing methamphetamine, a Schedule II controlled substance. Watson further indicated that the bulk amount of methamphetamine is 3 grams. Finally, Aaron Davies, a firearm examiner at MVRCL, testified that he tested the firearm located on June 15, 2019 – a Hi-Point Model JHP .45 auto caliber pistol – and found it to be operable. The parties stipulated that Keister had a prior conviction for possession of heroin in Montgomery C.P. No. 2015-CR-3032, which was a felony offense involving illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse. Keiser did not present any witnesses or exhibits on his own behalf.
A. Standards of Review
“A sufficiency of the evidence argument disputes whether the State has
presented adequate evidence on each element of the offense to allow the case to go to
the jury or sustain the verdict as a matter of law.” State v. Wilson , 2d Dist. Montgomery
No. 22581,
of the evidence and asks which of the competing inferences suggested by the evidence
is more believable or persuasive.” (Citation omitted.) Wilson at ¶ 12; see Eastley v.
Volkman ,
to the factfinder’s decisions whether, and to what extent, to credit the testimony of
particular witnesses. State v. Lawson , 2d Dist. Montgomery No. 16288, 1997 WL
476684, *4 (Aug. 22, 1997). The fact that the evidence is subject to different
interpretations does not render the conviction against the manifest weight of the evidence.
Wilson at ¶ 14. A judgment of conviction should be reversed as being against the
manifest weight of the evidence only in exceptional circumstances. Martin at 175.
“The legal concepts of sufficiency of the evidence and weight of the
evidence are both quantitatively and qualitatively different.” Thompkins at 386.
However, where an appellate court determines that a conviction is not against the
manifest weight of the evidence, the conviction is necessarily based on legally sufficient
evidence. State v. McLoughlin , 2d Dist. Champaign No. 2017-CA-22,
B. Having Weapons While Under Disability
{¶ 42} Keister claims that the State’s evidence was insufficient to prove that he possessed the gun located inside the Amazon box. He emphasizes that no one observed him with a gun, and he argues that the State’s evidence did not support a conclusion that he constructively possessed the gun. R.C. 2923.13 states in pertinent part: “Unless relieved from disability under
operation of law or legal process, no person shall knowingly acquire, have, carry, or use
any firearm or dangerous ordnance * * *.” To “have” a firearm for purposes of R.C.
2923.13, a person must actually or constructively possess it. State v. Bursey , 2d Dist.
Montgomery No. 28976,
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.”
R.C. 2925.01(K). A person has constructive possession of an object when he or she is
conscious of the presence of the object and able to exercise dominion and control over
it, even if it is not within his or her immediate physical possession. State v. Hankerson ,
of the facts and circumstances surrounding the incident. Bursey at ¶ 50, citing State v.
Mabry , 2d Dist. Montgomery No. 21569,
Keister possessed the Hi-Point firearm. Officer Miniard testified at trial that he had observed Keister place numerous items, including a blue hoodie with what Miniard believed to be a gun, into an Amazon box following the crash. Miniard stated that Keister “was carefully holding the hoodie and the shape that he was holding it in, was holding it crossways meaning that the barrel, the handle, would be at an angle going out this way, carefully placing it in the back.” Tr. 161. Miniard did not see Ladd, the passenger, place any items in the box. Miniard testified that he then saw Keister take the box and proceed
“eastbound in the grass paralleling Boltin Street and the fence line.” The officer lost sight of Keister when he went into the tree line, but saw Keister return “moments later” without the box. Officer Miniard told Officer Denlinger the approximate location of where Keister had gone. Officer Miniard left the scene to take his family home, returned 10 to 15 minutes later, and went to the vicinity of Boltin and Hulbert Streets. Officer Denlinger had already located a box containing the same items that Miniard had reported. Keister’s wallet with his identification and a gun were among the items located inside the box. Officer Gottlieb testified that, after Keister’s vehicle was towed, he went to Denlinger’s location and looked at the items. Gottlieb described the firearm as a Hi-Point .45 caliber handgun; a .45 caliber magazine with nine bullets also was recovered. Subsequent testing by Aaron Davies, a firearm expert, established that the gun was operable. Prior to leaving the scene, officers searched the nearby area. A red football jersey with the number 3 was found behind a garage on Hulbert Street; Miniard had seen Keister wearing that jersey immediately after the crash. In addition, Officer Miniard testified that he looked at Keister while Keister was seated in the cruiser and confirmed that Keister was the driver he had seen. Based on the totality of the evidence, Keister’s conviction for having
weapons while under disability was based on sufficient evidence and was not against the manifest weight of the evidence. The jury could have reasonably concluded that Keister was the individual who had driven the Oldsmobile, that he had placed a wrapped firearm into an Amazon box, and based on Keister’s handling of that wrapped weapon, that he knowingly had possessed the gun while it was in the car. Moreover, the evidence supported a reasonable conclusion that Keister had taken the firearm and other items in the Amazon box to a location near the fence line and that the firearm located by Officer Denlinger a short time later, an operable Hi-Point .45 caliber handgun, was the gun that Keister had possessed. Keister emphasizes that no one saw him with a firearm, that Officer Miniard
merely assumed that a gun was wrapped inside the sweatshirt, and that Miniard did not have Keister in his line of sight at all times. Direct evidence of possession, however, was not required, and the State’s circumstantial evidence amply supported the conclusion that a firearm was, in fact, wrapped in the sweatshirt, that Keister possessed and hid it, and that it was found shortly thereafter by Officer Denlinger. Moreover, although Officer Gottlieb testified that Keister claimed that he was not the driver of the Oldsmobile and denied knowledge about the Amazon box, the jury was free to believe that those statements by Keister were untruthful. The jury did not lose its way in finding Keister guilty of having weapons while under disability.
{¶ 51} Keister’s second assignment of error is overruled as it pertains to having weapons while under disability.
C. Tampering with Evidence
Keister next contends that his conviction for tampering with evidence was
based on insufficient evidence and against the manifest weight of the evidence. His
argument is two-fold: (1) he could not have tampered with the firearm because he did not
possess it, and (2) because he did not know that Officer Miniard was a police officer, he
had no way of knowing that there was an official proceeding or investigation occurring.
Keister was convicted of tampering with evidence in violation of R.C.
2921.12(A)(1), which states: “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[.]” As the Supreme Court of Ohio stated, “[t]here are three elements of this
offense: (1) knowledge of an official proceeding or investigation in progress or likely to be
instituted, (2) the alteration, destruction, concealment, or removal of the potential
evidence, (3) the purpose of impairing the potential evidence’s availability or value in such
proceeding or investigation.” State v. Straley ,
circumstantial evidence to support a conclusion that Keister knowingly possessed the firearm and other items that he placed in the Amazon box. Keister secondly argues that the State’s evidence does not support a
conclusion that when he hid the handgun and drug paraphernalia, he knew that an investigation regarding these items was likely, and that he hid the items to impede their availability in such an investigation. We disagree. Straley is the leading case concerning whether the State has presented
sufficient evidence to sustain a tampering with evidence conviction. In Straley , two plainclothes narcotics detectives in an unmarked police vehicle observed a vehicle being driven erratically and conducted a traffic stop for public safety reasons. Upon approaching the driver, Detective Speakman noted the smell of an alcoholic beverage and asked the driver, Straley, to exit the vehicle. Straley could not produce her driver’s license and had slurred speech. With her consent, the detectives searched the vehicle but found no contraband. They decided not to pursue charges against Straley but would not allow her to drive home. As the detectives were arranging transportation for her, she indicated that she needed to use the restroom and went 20 to 30 feet away from Detective Speakman, where she urinated. Straley then returned to the detective. Speakman walked back to the area where she had urinated and located a baggie with what appeared to be crack cocaine. Straley was charged with trafficking in drugs, possession of cocaine, and tampering with evidence. On appeal to this appellate court, we reversed the conviction for tampering
with evidence, concluding that there was nothing in the record to support a finding that
Straley had acted with purpose to impair the value of evidence of any ongoing
investigation, i.e., driving under the influence or driving without a license, or any likely
investigation, i.e. public urination. State v. Straley , 2d Dist. Clark No. 2012-CA-34, 2013-
Ohio-510. The State appealed, arguing that “an investigation involves the process of
gathering facts and information and may grow beyond the scope of initial charges,” and
therefore, “if law enforcement investigates a suspect for possible criminal conduct, that
investigation necessarily encompasses all criminal conduct that law enforcement may
discover.” Straley ,
In this instance, “such” investigation refers back to the investigation just specified, i.e., the one that that the defendant knows is ongoing or is likely to be instituted. Therefore, the evidence must relate to that investigation; otherwise, the word “such” loses all meaning. The state’s argument that all evidence recovered in an investigation should be included in the ambit of the tampering statute would require us to change the language from “such” proceeding or investigation to “any” proceeding or investigation.
Id. at ¶ 16. The supreme court held that “a conviction for tampering with evidence pursuant to R.C. 2921.12(A)(1) requires proof that the defendant intended to impair the value or availability of evidence that related to an existing or likely official investigation or proceeding.” Id. at ¶ 19. “Likelihood is measured at the time of the act of alleged tampering,” and the supreme court concluded that there was nothing in the record to suggest that the officers were conducting or likely to conduct an investigation into trafficking or possession of cocaine when Straley discarded the baggie. Id . Turning, then, to the pending case, consistent with State v. Straley and with
the sufficiency of the evidence standard in mind, we conclude that a juror could have reasonably inferred that Keister knew, [1] based upon the disabled status of his vehicle, that his vehicle would be towed and that, before the tow occurred, the vehicle would be searched. From this, a juror could have rationally concluded that Keister realized that such a search would reveal the handgun and drug paraphernalia and trigger an investigation of these items. Finally, a juror could have reasonably concluded that Keister removed and hid the handgun and drug paraphernalia with the purpose to prevent such an investigation. Moreover, a juror could have rationally concluded that, when Keister placed his state identification card into the Amazon box, he knew that an investigation of the wrecked, disabled vehicle was inevitable, that the identification card could connect him to the vehicle, and that he placed the card into the box with the purpose to prevent this connection and, thus, to impair the investigation into the single-vehicle collision. Thus, the State presented sufficient evidence on each element to support a tampering with evidence conviction. This conclusion is also consistent with our decision in State v. Wilcox , 2d
Dist. Clark No. 2013-CA-94,
tampering with evidence conviction was not against the manifest weight of the evidence. Thus, Keister’s second assignment of error is overruled as it relates to the tampering with evidence conviction.
D. Illegal Conveyance
{¶ 62} Keister further claims that his conviction for illegal conveyance, in violation of R.C. 2921.36(A)(2), was based on insufficient evidence and against the manifest weight of the evidence. He argues that he was not adequately warned, either orally or in writing, against conveying drugs of abuse into the Montgomery County Jail. During his testimony, Officer Gottlieb described the booking process for the
Montgomery County Jail. He stated that, upon taking an arrestee out his cruiser, he walks the person into the intake room of the jail. At that point, a deputy takes the arrestee into a separate room where the individual is searched prior to being booked into the jail. Gottlieb stated that officers are able to observe the search through a window, and if any evidence is found, the corrections officer provides that evidence to the officer so that it can be tagged as evidence and additional charges brought. As for Keister specifically, Gottlieb stated that he (Gottlieb) was in the booking room when a large amount of methamphetamine was recovered from Keister’s buttocks; Gottlieb did not see the drugs pulled from Keister’s buttocks. The corrections officer immediately gave Gottlieb the drugs as evidence. Gottlieb further testified that there are several signs at the jail informing
individuals that bringing contraband (such as drugs and weapons) into the jail is a felony offense. Gottlieb stated that signs are located in the sally port area where officers park their cruisers and where prisoners sit until they are taken into the room to be searched. Gottlieb did not recall pointing out a sign to Keister or reading it to him. Corrections Officer Lesher testified that he was working as an Intake Utility
Officer on June 15, 2019. That position involved searching inmates that enter the facility, running them through a body scanner, and then dressing them in jail-issued uniforms. When Keister was brought in, Lesher told Keister to face a mat on the wall and then conducted a clothed pat-down search before running him through a body scanner. During the pat down search, Lesher felt an object in Keister’s pants. When asked what the object was, Keister responded that he had defecated. Based on the object’s hardness, Lesher did not believe that response, and he called for a sergeant to come in. Lesher then pulled Keister’s waistband back and saw in Keister’s buttocks a clear baggie with a white crystal substance that the officer believed to be methamphetamine. Lesher asked Keister what it was, and Keister replied that he did not know. Lesher placed the baggie in an envelope and gave it to Officer Gottlieb. The MVRCL later determined that the substance contained methamphetamine. Lesher also testified that there are warning signs about bringing items into
the jail. He stated that there are two signs in the outer receiving area when entering the facility – one sign facing the mats and another sign before entering the secondary receiving room where searches are conducted. The State offered photographs of two signs reading “Body Scanner Now in Use!! Contraband found beyond this point can/will result in additional charges for O.R.C. 2921.36 – illegal conveyance into a detention facility.” (Capitalization omitted.) (State’s Ex. 5, 6.) Lesher did not draw Keister’s attention to the signs. Lesher further testified, however, that before conducting the pat- down, he asks arrestees if “they have anything on them that can stick, stab or hurt me or any other contraband or weapons on their person.” Lesher stated that he does this every time and that he asked Keister that question. R.C. 2921.36(A)(2), the illegal conveyance statute, provides that “[n]o
person shall knowingly convey, or attempt to convey, onto the grounds of a detention facility * * * any of the following items: * * * (2) Any drug of abuse, as defined in section 3719.011 of the Revised Code[.]” The State’s evidence established that Keister hid a baggie containing methamphetamine in his buttocks, brought it into the Montgomery County Jail, and lied to a corrections officer when asked what it was. That evidence was sufficient to prove that Keister violated R.C. 2921.36(A)(2).
{¶ 68}
Nothing in the statute requires law enforcement officers to provide Keister
warnings of the consequences of bringing drugs into the jail. State v. Cole , 8th Dist.
Cuyahoga No. 91305,
conveyance.
IV. Assistance of Counsel Keister’s third assignment of error claims that he was “denied his right to [a]
fair trial by not having access to his counsel or the assistance of his counsel in building his defense.” Keister appears to assert that, due to lack of communication with his attorney, he was denied the effective assistance of counsel. To establish an ineffective assistance of counsel claim, a defendant must
satisfy the two-pronged test in Strickland v. Washington ,
Henderson , 2d Dist. Montgomery No. 28975,
communicating with his attorney. During a pretrial conference on April 16, 2020, the trial court informed the parties that it was postponing the trial date. Defense counsel told the court that Keister had said “as recently as, I believe, last week that he wished to keep this trial date and move forward.” After the trial court stated that it understood but a new trial date had been selected, Keister asked:
THE DEFENDANT: – would you take into consideration for me to be able to be placed back on EHDP so I can be preparing myself for trial? Because in here I have no contact with my attorney as I should be able to. It’s almost impossible for me to develop some kind of rapport with him and at least some kind of, you know, decent form of, you know, rebuttal for trial.
Tr. 76. Defense counsel responded that he had visited with Keister “a couple times in the last couple weeks. In addition, I have dropped off legal paperwork at the property room.” Tr. 76. When the trial court said that it would encourage defense counsel to continue to meet with him, Keister clarified: “What I was saying that it’s hard for me to be able to reach out to him. It’s not him not responding to me.” Tr. 77. The trial court then responded:
THE COURT: Gotcha. And I understand that. And that’s what happens if you’re waiting for trial while in custody. There’s nothing I can do about what’s in the jail as far as communication but I can always make sure that your attorney is visiting you in order to prepare, so. We’ll move forward and you can meet with Mr. Keister at your earliest convenience.
Tr. 77. In his appellate brief, Keister highlights the following exchange between
defense counsel and the trial court, which occurred following the completion of the questioning of potential jurors on the first day of trial (June 29, 2020):
[DEFENSE COUNSEL]: Mr. Keister has brought a couple concerns to my attention. I don’t know if the Court would entertain to address them quickly before moving on or not.
THE COURT: Okay. Go ahead.
[DEFENSE COUNSEL]: He believes he has been denied contacting me, his family, as well as getting law library at reasonable times. He has mentioned that he has hasn’t received medical treatment for his eye. I think those are the big issues.
I’m prepared for trial but it seems my understanding, if I’m reading all that correctly, that Mr. Keister may not feel as if he’s prepared.
THE COURT: Okay. Well, we’ve been having this matter set for a long time. [Defense counsel] has, from my understanding, is more than capable, has been prepared to address and handle this case. He’s the one that is going to try this case. I will make sure, though, that [defense counsel] stays in constant communication throughout this trial as we move forward.
When we take a break and we come back tomorrow, I’m sure that – I will make sure that the deputies address any issues with his health. If you are having issues with your health, let us know so we can take a break to address that issues but we’re going to move forward with this trial today. And then we are going to select the jury today, proceed to – after we select the jury, we will take a break and that will give you-all some time to discuss, give some time for him to attend whatever he needs to attend to. Okay? [DEFENSE COUNSEL]: Thank you, sir.
Tr. 128-129. The record thus reflects that Keister had continuing concerns regarding his
ability to reach out to defense counsel for trial preparation, which were relayed to the trial court. However, the content and extent of Keister’s communications with his attorney are not detailed in the record, and there is nothing in the record to support Keister’s contention that his communications with defense counsel were inadequate to enable him to assist with his defense. The record further reflects that defense counsel made efforts to communicate with Keister, and in April 2020, Keister expressly stated that he had no complaints with his attorney’s responsiveness. In the discussion on the first day of trial, the trial court told Keister and defense counsel that they would have time to converse after jury selection was completed, and there is nothing to suggest that Keister’s concerns were not allayed. Keister does not identify any deficient performance by defense counsel at trial or articulate how he was prejudiced by the extent of the communications. On this record, Keister has not demonstrated that his attorney acted deficiently or that he was prejudiced by his attorney’s conduct prior to or during trial. To the extent that Keister’s claim regarding lack of communication relies on evidence outside the record, the claim is more properly raised in a petition for post-conviction relief. Keister’s third assignment of error is overruled.
V. Keister’s Sentence In his fourth assignment of error, Keister claims that the record “does not
clearly and convincingly support” his sentence. Keister focuses on his sentence for aggravated possession of drugs, for which he received a maximum term. Pursuant to the Reagan Tokes Act, that sentence consisted of a mandatory indefinite term of a minimum of 8 years and a maximum of 12 years in prison. When reviewing felony sentences, we must apply the standard of review
set forth in R.C. 2953.08(G). Under that statute, an appellate court may increase,
reduce, or modify a sentence, or vacate it all together and remand for resentencing, if it
“clearly and convincingly finds either (1) the record does not support certain specified
findings or (2) that the sentence imposed is contrary to law.” State v. Worthen , 2d Dist.
Montgomery No. 29043,
statutory range, and it is not required to make any findings or give its reasons for imposing
a maximum or more than minimum sentence. State v. Jones , 2d Dist. Clark No. 2020-
CA-8,
{¶ 81}
In exercising its discretion, a trial court must consider the statutory policies
that apply to every felony offense, including those set out in R.C. 2929.11 and R.C.
2929.12. State v. Leopard ,
improperly considered whether he had engaged in trafficking in methamphetamine, a crime for which he was not charged, and his conduct during the pendency of the case, both of which the State discussed in its sentencing memorandum. Keister asserts that a lesser term of incarceration could have been imposed that would have adequately met the purposes and principles of felony sentencing. The record contradicts Keister’s assertion that the court considered
uncharged allegations of trafficking in methamphetamine or his conduct during the pendency of the case. At sentencing, the trial court expressly stated that it “is only taking into account what Mr. Keister was convicted of and does not – has reviewed the pre- sentence investigation as well as the sentence memorandum, is not considering anything exterior that may or may not have taken place throughout the trial as well as any indication of trafficking.”
{¶ 85}
Regardless, Keister’s sentence was not contrary to law. The stated
minimum term of eight years in prison was within the statutory range for a felony of the
second degree, see R.C. 2929.14(A)(2)(a), and the court correctly calculated the
corresponding maximum term, see R.C. 2929.144(B)(1). Keister acknowledges that the
court was required to impose a mandatory sentence. Keister’s claim that his sentence
was unsupported by the record is foreclosed by the Ohio Supreme Court’s decision in
Jones . See State v. Matthews , 2d Dist. Montgomery No. 29079,
VI. Conclusion Having overruled each assignment of error, the trial court’s judgment is
affirmed.
. . . . . . . . . . . . .
WELBAUM, J., concurs.
EPLEY, J., concurs in part and dissents in part: I concur with the majority opinion save for the conviction of tampering with
evidence. In my view, the State’s evidence did not support a conclusion that Keister had
known of an actual or likely official investigation and acted with the purpose of impairing
the firearm’s availability “in such proceeding or investigation.”
In a 6-1 decision, after finding a certified conflict existed among the Second
and Ninth Districts, the Ohio Supreme Court confirmed there are three elements of
tampering with evidence in violation of R.C. 2921.12(A)(1): “(1) knowledge of an official
proceeding or investigation in progress or likely to be instituted, (2) the alteration,
destruction, concealment, or removal of the potential evidence, (3) the purpose of
impairing the potential evidence’s availability or value in such proceeding or
investigation.” Straley ,
App.3d 615,
to be related to the investigation, stating: “The fact that officers initially were following Skorvanek for a traffic violation does not detract from the evidentiary value of the pill bottle filled with heroin and multiple prescription drugs that he threw from this car.” Id . at ¶ 23. Because the Ohio Supreme Court did not side with Skorvanek’s argument, I agree with Keister that the State’s evidence did not support a conclusion that Keister knew of an actual or likely official investigation and acted with the purpose of impairing the firearm’s availability “in such proceeding or investigation.” The Ohio Supreme Court emphasized the statute’s language that the action must be taken “with purpose to impair its value or availability as evidence in such proceeding or investigation .” (Emphasis added.) The court noted:
In this instance, “such” investigation refers back to the investigation just specified, i.e., the one that that the defendant knows is ongoing or is likely to be instituted. Therefore, the evidence must relate to that investigation; otherwise, the word “such” loses all meaning. The state’s argument that all evidence recovered in an investigation should be included in the ambit of the tampering statute would require us to change the language from “such” proceeding or investigation to “any” proceeding or investigation.
Straley ,
with evidence based on the defendant’s hiding a weapon while the vehicle in which he
was a passenger was pulling over for a traffic stop. State v. Wilcox , 2d Dist. Clark No.
2013-CA-94,
Here, there was arguably an investigation in progress when Wilcox hid the handgun. The police officers’ testimony shows that when they saw Wilcox lean over they immediately suspected a weapon. This suggests, at best, that an investigation regarding Wilcox’s possession of a weapon was initiated a split-second before he actually placed the handgun under the driver’s seat. The problem is that there is no evidence that Wilcox knew about this investigation or knew that it was likely. Therefore a reasonable juror could not find that Wilcox’s purpose in putting the handgun under the seat was to impair its availability in the officer’s investigation. Given the Supreme Court’s decision in Straley , we must conclude that the record here does not support a conviction for tampering with evidence.
Id. at ¶ 26. Since Straley , the supreme court has acknowledged the difference between
the concealment of evidence that would support a possession charge from the
concealment of evidence related to a violent offense. In State v. Barry , 145 Ohio St.3d
354,
St.3d 470,
conviction for tampering with evidence. Keister was involved in a single-car crash that caused damage to a utility pole. Immediately afterward, Miniard, who as far as Keister knew was an unknown private citizen, stopped to check on his welfare. At that point, Keister could have reasonably expected that an official investigation of the car crash was likely. However, the firearm and other contraband with which Keister allegedly tampered was unrelated to the crash. As in Wilcox and Barry , the record does not support a conclusion that an investigation of possession offenses was under way or was likely when Keister put the gun and other items into the Amazon box and removed the box from the crash scene. Additionally, the State’s evidence did not square with or support a belief that Keister’s purpose in putting the gun and other contraband in the Amazon box and taking the box to the fence line was to impair its availability in an officer’s official investigation of the crash. I note that, because Keister received concurrent sentences, this conclusion
may be pyrrhic and has no effect on the length of Keister’s aggregate sentence. Nonetheless, I respectfully dissent from the majority opinion in this respect.
. . . . . . . . . . . .
Copies sent to:
Mathias H. Heck, Jr.
Andrew T. French
Jon Paul Rion
Catherine H. Breault
Hon. Gerald Parker
Notes
[1] R.C. 2901.22(B) defines knowingly as follows: “A person acts knowingly, regardless of purpose, when the person is aware that the person's conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when the person is aware that such circumstances probably exist. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person subjectively believes that there is a high probability of its existence and fails to make inquiry or acts with a conscious purpose to avoid learning the fact.”