State v. LyonsState v. Lyons
{¶ 1} Tony Lyons appeals his convictions following a jury trial on one count of possession of drugs in violation of
{¶ 2} On the afternoon of November 28, 2003, and after receiving several anonymous complaints, Cleveland police detectives Luther Roddy and Traci Nickerson enlisted the help of a confidential informant to target the area of East 124th Street and Corlett Avenue for suspected drug activity.
{¶ 3} The detectives observed Lyons standing on the street corner and engaging in suspected drug activity by approaching people as they walked by, and not appearing to have any other business in the area. The detectives instructed the informant to buy drugs from Lyons and gave her $10 in marked “buy money.” The informant then exited the undercover car and approached Lyons. After a brief conversation, the informant handed Lyons the marked money and received what appeared to be crack cocaine. The informant then walked back to the undercover vehicle, indicated to
{¶ 4} When additional police support arrived, Lyons was arrested and found carrying the marked buy money. He was indicted and after a jury trial, was convicted on one count of possession of drugs and two counts of drug trafficking. He appeals to this court challenging his convictions in the assignments of error set forth in the appendix to this opinion.
{¶ 5} In his first two assignments of error, Lyons claims error in the trial court‘s denial of his motion for acquittal arguing the state presented insufficient evidence to sustain a conviction. He further claims his conviction was against the manifest weight of the evidence. We address these assignments of error together for purposes of appeal.
{¶ 6} A challenge to the sufficiency of evidence is a matter of law to be determined by the trial court based upon only a favorable interpretation of the evidence produced by the prosecution. Therefore, sufficiency requires this court view the matters adduced in the light most favorable to the prosecution and determine whether a rational fact finder could have found all the material elements of the offense beyond a reasonable doubt. State v. Bridgeman (1978), 55 Ohio St.2d 261, 381 N.E.2d 184; State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492. Once the trial court has made its ruling on the sufficiency of the evidence, the issues become a matter for the fact finder who weighs all the evidence,
{¶ 7} Upon the informant‘s return to the undercover car, Detective Nickerson personally searched her and removed one bag of what appeared to be crack cocaine. The detective put the drugs into an evidence bag where it remained under the control of the Cleveland police department. The substance was later tested and determined to contain .07 grams of cocaine.
{¶ 8} Detective Michael Raspberry testified that he personally marked the undercover buy money, inserting a circular mark on the face of the bill, and further testified that after he arrested Lyons, he removed the same marked bill from Lyons‘s front pocket.
{¶ 9} Based on the evidence presented at trial, it was neither insufficient nor against the manifest weight of the evidence to establish the elements of both drug possession and drug trafficking.
{¶ 10} Lyons’ first and second assignments of error are overruled.
{¶ 12}
“Except as provided in division (G) of this section or in
Chapter 2925. of the Revised Code , the court imposing a sentence upon an offender for a felony may impose the longest prison term authorized for the offense pursuant to division (A) of this section only upon offenders who committed the worst forms of the offense, upon offenders who pose the greatest likelihood of committing future crimes, upon certain major drug offenders under division (D)(3) of this section, and upon certain repeat violent offenders inaccordance with division (D)(2) of this section.”
{¶ 13} In imposing the maximum sentence, the trial court was required to make a finding that Lyons fit within one of the categories set forth in
{¶ 14} Appellant‘s third assignment of error is overruled.
{¶ 16}
{¶ 17} Here, the trial court found that consecutive sentences were necessary to protect the public, that consecutive sentences were not disproportionate to the seriousness of appellant‘s conduct, and that consecutive sentences were not disproportionate to the danger appellant posed to the public. Although the trial
{¶ 18} Appellant‘s fourth assignment of error is sustained.
{¶ 19} In his fifth and final assignment of error, Lyons contends that the two counts of drug trafficking were allied to the drug possession count and, as a result, the trial court erred when it ordered the two counts of drug trafficking to be served consecutively to the count of possession. We disagree. We initially note that appellant failed to raise this issue in the trial court and has therefore waived it for purposes of appeal. See, e.g., State v. Fort, Cuyahoga App. No. 80604, 2002-Ohio-5068, at ¶52. Appellant‘s substantive argument lacks merit in any event.
{¶ 20} Ohio‘s allied offenses statute protects against multiple punishments for the same criminal conduct in violation of the Double Jeopardy Clause of the United States Constitution and the
{¶ 21} Appellant‘s fifth assignment of error is overruled.
{¶ 22} We affirm the judgment in part, and reverse the judgment in part to modify appellant‘s sentence under
{¶ 23} This cause is affirmed in part and reversed in part.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
JOSEPH J. NAHRA*
JUDGE
ANTHONY O. CALABRESE, JR., J., CONCURS.
SEAN C. GALLAGHER, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE OPINION.
(*SITTING BY ASSIGNMENT: Judge Joseph J. Nahra, Retired, of the Eighth District Court of Appeals.)
N.B. This entry is an announcement of the court‘s decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R.22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court‘s decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court‘s announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1).
APPENDIX: ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT ERRED IN DENYING APPELLANT‘S MOTION FOR ACQUITTAL AS TO THE CHARGES WHEN THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION.
III. THE TRIAL COURT ERRED WHEN IT SENTENCED APPELLANT TO MAXIMUM SENTENCE WITHOUT MAKING THE APPROPRIATE FINDINGS.
IV. THE TRIAL COURT ERRED BY ORDERING CONSECUTIVE SENTENCES WITHOUT MAKING THE APPROPRIATE FINDINGS.
V. THE TRIAL COURT ERRED WHEN IT ORDERED TWO COUNTS OF DRUG TRAFFICKING TO BE SERVED CONSECUTIVELY TO THE COUNT OF POSSESSION ALTHOUGH THE OFFENSES WERE ALLIED OFFENSES PURSUANT TO
{¶ 24} I respectfully dissent from the majority opinion with respect to the fourth assignment of error. I concur with the majority on the remaining assignments of error.
{¶ 26} The majority acknowledges that the trial court made the required findings that consecutive sentences were necessary to protect the public, were not disproportionate to the seriousness of appellant‘s conduct and were not disproportionate to the danger appellant posed to the public, satisfying the basic requirements of
{¶ 27} The statute at issue does not adequately define any of the terms required to impose consecutive sentences. Thus, the interpretation of the terms is left largely to the individual determination of the trial judge. This case simply points out the inadequacy of an “a la carte” sentencing system based on nebulous terms that defy definition.
{¶ 28} “The law is well settled that we will not reverse a trial court on sentencing issues unless the defendant shows by clear and convincing evidence that the trial court has erred. State v. Douse, Cuyahoga App. No. 82008, 2003-Ohio-5238, citing
{¶ 29} Here the trial court specifically referenced Lyon‘s extensive criminal history as the underlying basis for the consecutive sentence.
{¶ 30} In light of numerous previous holdings supporting the imposition of consecutive sentences where the required findings and reasons are stated on the record, I would affirm the decision of the trial court.