State v. KendrickState v. Kendrick
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: August 7, 2009
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, Assistant Prosecuting Attorney, for Appellee,
Michaela M. Stagnaro, for Appellant.
Please note: This case has been removed from the accelerated calendar.
{¶1} Defendant-appellant, Terry Kendrick, appeals the judgment of the Hamilton County Court of Common Pleas convicting him of four counts of dogfighting and six counts of trafficking in marijuana. He was convicted after a jury trial.
Gabrielson is Introduced to Kendrick
{¶2} During a regional investigation of dogfighting, Sergeant Michael Gabrielson of the Kettering, Ohio, Police Dеpartment came into contact with Cory Burnett. Burnett was associated with Hung Jury Kennel, an illicit dogfighting operation in Dayton, Ohio. Feigning an interest in dogfighting, Gabrielson ostensibly became an investing partner in the operation with Burnett and Larontay Bennett.
{¶3} On March 31, 2006, Burnett introduced Gabrielson to Kendriсk, the operator of the OG Posse Kennel, at Kendrick‘s residence in Hamilton County. The parties arranged a dogfighting event between the respective kennels to take place on May 20, 2006, in Cincinnati.
{¶4} As a preliminary matter to the fight, Bennett paid Kendrick a sum of “forfeit money,” in the event that Hung Jury failed to attend the fight or failed to bring an eligible dog. Kendrick described one of the fights that he had arranged for the May 20 event. And during their meeting, Kendrick showed Gabrielson an underground dogfighting magazine as well as a trophy that OG Posse had won in a previous dogfight.
The Dogfighting Events
{¶5} On May 20, 2006, Gabrielson witnessed a dоgfighting event on Central Avenue in Cincinnati. When nearly 100 patrons had congregated in the basement of the building, Kendrick instructed everybody to leave so that they could properly reenter by paying an admission fee. Prior to the start of the fighting, Kendrick announced over
{¶6} Kendrick then described the imрending show, which was to include six fights. While the third fight was in progress, somebody yelled “police,” and the patrons quickly fled from the basement. Cincinnati police raided the event, and the fights were not resumed that night.
{¶7} But the three remaining fights occurred the following day in Dayton, Ohio, which is in Montgomery County. Becаuse Kendrick had placed a dog in the first of the remaining fights, he closely monitored that fight. When Kendrick‘s dog lost to a Hung Jury dog, Kendrick paid Burnett for their bet. Kendrick stayed and watched the second fight. Before he left, Gabrielson gave Kendrick $50 for a subscription to a dogfighting magazine.
{¶8} Later, Gаbrielson selected a warehouse for dogfighting in Moraine, Ohio, which is also in Montgomery County. Gabrielson had the warehouse outfitted for police surveillance. He showed Kendrick the warehouse on October 2, 2006, and Kendrick said that he wanted to use it for a dogfighting event.
{¶9} Kendrick scheduled a fight to occur at the warehouse on October 7. At the October 7 fight, Kendrick was involved in the weighing of the dogs, he accepted money, he provided money for the fight‘s purse, and he gave the referee two bite sticks that were used to separate the dogs.
{¶10} A dogfighting event аlso occurred on October 28 at the warehouse. Kendrick arrived with a dog for the first scheduled fight, along with others from the OG Posse. Kendrick gave the referee $2000 for a bet he had placed with Burnett. Kendrick witnessed the weighing of the dogs and gave instructions to the handler of the OG Posse
{¶11} A dogfight took place on December 30, 2006, in Cincinnati. At that fight, Kendrick was in the pit and acted as the referee.
{¶12} At a dogfighting event on March 24, 2007, at the Moraine warehouse, Kendrick directed his wife to cоllect the entrance fees, directed his son to walk one of the dogs prior to its fight and to retrieve medical supplies, and directed Gabrielson to bring items to wash the dogs. Police raided that event, arresting Kendrick and others.
{¶13} When officers executed a search warrant аt Kendrick‘s house, they recovered a large number of confined dogs, many of which appeared to have suffered fight-related injuries. Officers also found an extensive array of paraphernalia commonly used to train dogs for fighting, as well as a large quantity of marijuana.
Trafficking in Marijuana
{¶14} Gabrielson also testified about a number of drug transactions. In June 2006, Gabrielson witnessed Kendrick sell marijuana to a juvenile. Then, on a December 13, 2006, visit to Kendrick‘s residence, Gabrielson mentioned that he wanted to pick up some “product.” Kendrick responded that he “dealt in green,” he hаnded Gabrielson a bag containing several ounces of marijuana, and he asked if Gabrielson could buy marijuana in ounces at $110 per ounce. Thereafter, Gabrielson purchased marijuana from Kendrick with the understanding that he would resell it.
Trial and Sentencing
{¶15} At trial, Kendrick rested without presenting evidence. The jury found him guilty of engaging in dogfighting for the fights that had occurred in Hamilton County on May 20, 2006, and on December 30, 2006. He was also found guilty of promoting the May 20, 2006, event, and of training dogs for dogfighting. He was not
{¶16} The jury also found Kendrick guilty of the drug offenses, and the trial court sentenced him to an aggregate prison term of 13 1/2 years.
Hearsay and Confrontation Clause
{¶17} In his first assignment of error, Kendrick now argues that the trial court erred in admitting into evidence the statements of Burnett implicating Kendrick in the offenses. He first argues that the statements were inadmissible hearsay.
{¶18} Under
{¶19} The Supreme Court of Ohio has rejected this argument, holding that statements of a co-conspirator may be admitted even though conspiracy is not charged as a substantive offense.1 Here, the state established that Kendrick, Burnett, and others were part of a conspiraсy to stage dogfights. Burnett‘s statements were made when he was bringing Gabrielson into the dogfighting operation and when the fights were being planned and conducted. The statements were therefore made in furtherance of the conspiracy, and they were admissible under
{¶20} Moreover, virtually all of the challenged statements were confirmed by Gabrielson‘s observations and the statements of Kendrick himself. Burnett‘s statements were therefore merely cumulative to other evidence.
Other Acts
{¶22} In his second assignment of error, Kendrick contends that he was denied a fair trial because of inadmissible “other acts” evidence. He first argues that it was erroneous to admit evidence of the fights that had been staged outside of Hamilton County.
{¶23}
{¶24} But the general inadmissibility of “other acts” evidence does not prevent the state from demonstrating “the ‘setting’ of a case.”4 Thus, the state may present other acts that are “inextricably interwoven with the crime charged in the indictment”5 and that are “necessary to give the complete picture of what occurred.”6
{¶25} In this case, the state presented evidence that significant parts of the planning and preparation for the Montgomery County fights had occurred in
{¶26} Kendrick also argues that the trial court erred in admitting evidence of his guilty pleas to federal dogfighting-related charges.
{¶27} Under
{¶28} Next, Kendrick argues that the trial court erred in admitting evidence of contraband that was not related to dogfighting. Specifically, he challenges the admissibility of “bootleg” DVDs that were in his possession.
{¶29} The state offered the DVDs in response to Kendrick‘s assertion that he had been entrapped into engaging in dogfighting and trafficking in marijuana. The state contended that the ready access to the contraband demonstrated that Kendrick was not averse to engaging in criminal activity and that he had not been entrapped. As the Supreme Court of Ohio has held, evidence is properly admitted for that purpose.7 Acсordingly, there was no error in the admission of the DVDs.
{¶30} Finally, Kendrick challenges the admission of video recordings depicting dogfights in which, he contends, he did not participate. Kendrick refers to the fights on October 28, 2006, and to a fight on February 3, 2007.
{¶31} The trial court did not err. Kendrick was present as the “host” of the October 28 dogfighting event, and there was evidence that he had placed a bet on the
Sufficiency and Weight of the Evidence
{¶32} In his third assignment of error, Kendrick maintains that his convictions were based on insufficient evidence and were against the manifest weight of the evidence.
{¶33} In the review of the sufficiency of the evidence to support a conviction, the relevant inquiry for the appellate court “is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”8 To reverse a conviction on the manifest weight of the evidence, a reviewing court must review the entire record, weigh thе evidence and all reasonable inferences, consider the credibility of the witnesses, and conclude that, in resolving the conflicts in the evidence, the trier of fact clearly lost its way and created a manifest miscarriage of justice.9
{¶34} The dogfighting statute,
{¶35} In this case, the state presented overwhelming evidence of Kеndrick‘s guilt. Kendrick had participated in dogfighting by organizing and scheduling fights,
{¶36} Gabrielson captured a large portion of the alleged criminal activity on hidden surveillance equipment, and the state presented compelling physical evidence to establish the crimes. Accordingly, we overrule the third assignment of error.
Jury Instructions
{¶37} In the fourth and final assignment of error, Kendrick argues that the trial court erred in instructing the jury. He first argues that the court erred in defining certain statutory terms for the jury. He does not arguе that the definitions were inaccurate or misleading; rather, he contends that the jurors should have been permitted to define the terms themselves.
{¶38} This argument is not persuasive. The trial court‘s definitions of the terms “promoted,” “engaged,” and “employed” were taken from a dictionary аnd were in accordance with standard definitions of the terms. Because the jury was not misled, Kendrick can demonstrate no prejudice to have arisen from the instructions.
{¶39} Kendrick next argues that the trial court erred in giving an instruction on complicity. This argument is also without merit. The state presented ample evidence that Kendrick had aided and abetted others in staging the dogfights in addition to having engaged in the offenses as a principal.
{¶40} Finally, Kendrick argues that the court erred in giving an instruction on “conspiracy.” He argues that, because dogfighting is not one of the spеcified offenses under the conspiracy statute, the instruction was improper.
Judgment affirmed.
HENDON, P.J., and SUNDERMANN, J., concur.
Please Note:
The court has recorded its own entry on the date of the release of this decision.