STATE OF OHIO, PLAINTIFF-APPELLEE, v. RENELL R. PEACOCK, DEFENDANT-APPELLANT.
CASE NO. 13-16-26
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY
May 1, 2017
2017-Ohio-2592
Appeal from Seneca County Common Pleas Court, Trial Court No. 15 CR 0173, Judgment Affirmed
Jennifer L. Kahler for Appellant
Stephanie J. Reed for Appellee
PRESTON, P.J.
{¶1} Defendant-appellant, Renell R. Peacock (“Peacock“), appeals the November 1, 2016 judgment entry of sentence of the Seneca County Court of Common Pleas. For the reasons that follow, we affirm.
{¶2} This case stems from incidents that occurred on November 29, 2014 and May 18, 2015. On November 29, 2014, Peacock, having been approached by an officer from the Fostoria Police Department, led that officer on a foot pursuit across a parking lot and through an alley in Fostoria, Ohio. During the chase, Peacock discarded a small plastic bag from his pocket prior to being taken to the ground by the officer. The officer then wrestled with Peacock because Peacock continued to resist the officer‘s attempts to control him, but a civilian aided the officer in apprehending Peacock. A second civilian then arrived, found the item Peacock discarded in the alley, and gave that item to another officer at the scene. On May 18, 2015, Peacock was the target of a controlled-buy operation conducted by law enforcement. During that operation, Peacock sold cocaine to a confidential informant (“CI“).
{¶3} On August 5, 2015, Peacock was indicted on Count One of possession of heroin, a violation of
{¶4} On September 11, 2015, Peacock appeared for a pretrial conference at which the trial cоurt, at Peacock‘s request, relieved Peacock‘s previously appointed counsel and appointed new stand-by counsel to assist Peacock because Peacock wished to represent himself. (Doc. No. 26).
{¶5} On November 24, 2015, a bench trial began, during which Peacock requested that the trial court continue the trial and appoint him counsel, which the trial court did. (Nov. 24, 2015 Tr. at 35, 43). The trial court released Peacock‘s stand-by counsel from his responsibilities and appointed new counsel for Peacock.1 (Doc. No. 60).
{¶6} The bench trial resumed on September 15, 2016. (Sept. 15, 2016 Tr. at 5). On September 20, 2016, the trial cоurt found Peacock guilty of each count of the indictment. (Sep. 20, 2016 Tr. at 3). The trial court then sentenced Peacock to 9 months in prison as to Count One, 30 months in prison as to Count Two, 60 days in jail as to Count Three, and 9 months in prison as to Count Four, with the time for
{¶7} On November 8, 2016, Peacock filed his notice of appeal. (Appeal Doc. No. 1). He raises four assignments of error for our review. For ease of organization, we will address Peacoсk‘s first, second, and third assignments of error together, followed by his fourth assignment of error.
Assignment of Error No. I
The Trial Court Erred In Finding Appellant Guilty Of Tampering With Evidence Where the State Failed to Introduce Sufficient Evidence To Support The Conviction.
Assignment of Error No. III
The Trial Court Erred In Finding Appellant Guilty Of Resisting Arrest Where The State Failed To Introduce Sufficient Evidence To Support The Conviction.
Assignment of Error No. II
The Trial Court Erred In Finding Appellant Guilty Of Possession Of Heroin When The Conviction Was Against The Manifest Weight Of The Evidence.
{¶8} In his first assignment of error, Peacock argues that his tampering-with-evidence conviction is based on insufficient evidence. Specifically, he argues that his tampering-with-еvidence conviction is based on insufficient evidence because the State failed to demonstrate that Peacock knew that an investigation was in
{¶9} “An appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259 (1981), paragraph two of the syllabus, superseded by state constitutional amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997). Accordingly, “[t]he relevant inquiry is 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 crime proven beyond a reasonable doubt.” Id. “In deciding if the evidence was sufficient, we neither resolve evidentiary conflicts nor assess the
{¶10} On the other hand, in detеrmining whether a conviction is against the manifest weight of the evidence, a reviewing court must examine the entire record, “‘weigh[ ] the evidence and all reasonable inferences, consider[ ] the credibility of witnesses and determine[ ] whether in resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.‘” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing court must, however, allow the trier of fact appropriate discretion on matters relating to the weight of the evidence and the credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230, 231 (1967). When aрplying the manifest-weight standard, “[o]nly in exceptional cases, where the evidence ‘weighs heavily against the conviction,’ should an appellate court overturn the trial court‘s judgment.” State v. Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.
{¶12} “Knowledge that a сriminal investigation is under way or is imminent is based upon a reasonable person standard.” State v. Hicks, 3d Dist. Union Nos. 14-07-26 and 14-07-31, 2008-Ohio-3600, ¶ 54, citing State v. Mann, 12th Dist. Clermont No. CA2006-05-035, 2007-Ohio-1555, ¶ 11. In order to tamper with evidence within the meaning of the statute, one must intend to impair the value or availability of evidence that is related to an existing or likely investigation, with the likelihood of the investigation measured at the time of the act of alleged tampering. State v. Straley, 139 Ohio St.3d 339, 2014-Ohio-2139, ¶ 19.
{¶13}
{¶14} Therefore, the key inquiries in this case are whether the evidence, when viewed in the light most favorable to the prosecution, is such that any rational trier of fact could have found that (1) a reasonable person in Peacock‘s position would have known that an official investigation was in progress or was about to be or likely to be instituted, and (2) Peacock removed a bag of drugs from his person with the intention оf impairing its availability as evidence in the investigation. As such, we will address whether a reasonable person in Peacock‘s position would have known an official investigation was in progress or was about or likely to be instituted first, and whether he concealed or removed a bag of drugs from his person with intention of impairing their availability in the investigation second.
{¶15} At trial, Fostoria Police Officer Nate Elliot (“Officer Elliot“) testified that, on November 29, 2014, at approximately 4:22 p.m., he drove past Fort Ball Pizza on West Center Street, having previously become aware that Peacock was staying at an apartment in the area. (Nov. 24, 2015 Tr. at 22). Officer Elliot averred that, at that location, he observed a vehicle registered to Aubrey Jones, a man whose license was suspended and whose description matched that of the man who was
{¶16} Officer Elliot testified that Peacock falsely identified himself as Kewan Hayes. (Id. at 26-27). Officer Elliot testified that he then grabbed Peacock by the arm and indicated that he knew Peacock was not Kewan Hayes, at which point Peacock put his right hand in his coat pocket and fled on foot. (Id. at 27). Officer Elliot testified that a chase then ensued. (Id. at 27). He testified that, during that pursuit and while he was approximately five or six feet behind Peaсock and running through an alley, he observed Peacock remove his right hand from his pocket and discard an item. (Id.). That item appeared to be a clear plastic bag with lottery papers inside. (Id. at 28). Officer Elliot testified that he saw where Peacock threw the item. (Id.).
{¶18} On cross examination, Officer Elliot testified that he worked approximately ten hours on the day in question by the time he encountered Peacock. (Nov. 24, 2015 Tr. at 8). He further admitted that he has a medical condition that fatigues him quickly if his heart rate increases and also blurs his vision. (Id. at 23). Officer Elliot conceded that a great deal of drug activity takes place in the alley through which Peacock ran. (Id. at 30). Officer Elliot asserted that, at the time he saw Peaсock discard the bag of drugs in the alley, he was four or five yards behind Peacock. (Id. at 32).2 Officer Elliot went on to explain that, once the chase was concluded and Jeremiah McDonald arrived and searched the alley, Officer Elliot yelled to McDonald from some distance away to stop McDonald from picking up any potential evidence. (Sept. 15, 2016 Tr. at 35). Despite this, Officer Elliot said McDonald picked up a bag of drugs and gave it to Officer Marchetto. (See id. at
{¶19} This case presents a set оf facts strikingly similar to those we addressed in State v. Rock, 3rd Dist. Seneca No. 13-13-38, 2014-Ohio-1786. In Rock, a police officer approached three individuals while operating his cruiser at approximately 2:45 a.m. Id. at ¶ 15. As he did so, the officer observed one of the three individuals toss something from his pocket to the ground. Id. at ¶ 15. After some questioning, Rock admitted to the officer that one of his companions passed the drugs to him as the officer approached, and Rock discarded the drugs under the belief that they were Vicodin. Id. at ¶ 17. When addressing whether the evidence in Rock was sufficient to show that a reasonable person in the defendant‘s position would have known an investigation was about or was likely to be instituted, we held that “passing illegal drugs in front of others in public would put a reasonable person on notice that this illegal activity would be reported to law enforcement and an investigation instituted.” Id. at ¶ 19. We further held that “a reasonable person in Rock‘s position would not have felt the need to toss the pills aside * * * if that person did not believe an investigation was about or was likely to be instituted.” Id. at ¶ 20.
{¶20} Here, Peacock did as Rock did—passed illegal drugs in view of the public by removing the drugs from his person in the hope that the approaching
{¶21} Viewing the evidence in the light most favorable to the prosecution, we conclude that a reasonable person in Peacock‘s position would have knоwn that an official investigation was in progress or was about to be or likely to be instituted at the time he discarded the item in question.
{¶22} Second, we will address whether the State presented sufficient evidence to demonstrate that Peacock concealed or removed any record, document, or thing to impair its value or availability in such proceeding or investigation. We conclude that a rational trier of fact could have found that Peacock removed the drugs from his person and concealed them by throwing them with the intention of impairing their availability as evidence in an investigation. Officеr Elliot saw Peacock throw an item from his pocket during the chase, saw where the item landed, and later was able to determine that said item was a bag of drugs.
{¶24} Viewing the evidence in a light most favorable to the prosecution, we conclude that a rational trier of fact could have found it proven beyond a reasonable doubt that a reasonable person in Peacоck‘s position knew that an official investigation was about or likely to be instituted and that Peacock removed or concealed a bag of drugs with the specific intention of impairing its availability as evidence in the investigation.
{¶25} For the foregoing reasons, Peacock‘s first assignment of error is overruled.
{¶27}
{¶28} At trial, Officer Elliot testified that he told Peacock to stop during the pursuit and that, when Officer Elliot eventually detained Peacock, Peacock did not comply with his efforts to restrain him. (Nov. 24, 2015 Tr. at 29). According to Officer Elliot, he had to wrestle with Peacock on the ground until a civilian—
{¶29} Schalk also testified on the State‘s behalf. (Sept. 15, 2016 Tr. at 79). He testified that, on Nоvember 29, 2014, he observed Officer Elliot interacting with Peacock in a parking lot on the corner of Wood Street and Tiffin Street. (Id.). According to Schalk, he saw the police officer reach for Peacock, at which point both took off running. (Id.). Schalk said that the two men than ran through an alley and, the next time Schalk saw them, they were on the ground as Officer Elliot struggled to control Peacock; Schalk approached and helped Officer Elliot place Peacock in restraints. (Id. at 80).
{¶30} This case presents facts similar to those in State v. Dice, 3rd Dist. Marion No. 9-04-41, 2005-Ohio-2505. In that case, Dice was the object of a police investigation because he allegedly threatened his wife with a firearm. Id. at ¶ 5. When the officers located Dice, he fled despite their instructions to stop, and they pursued him. Id. at ¶ 8. One of the officers eventually tackled Dice, despite which Dice continued to struggle so much that the officer could not complete the arrest without help from another officer who assisted in subduing Dice. Id. at ¶ 27. When Dice came before this Court arguing that there was insufficient evidence of resisting arrest at trial, we concluded that, based on the facts above, sufficient evidence existed to convict Dice of resisting arrest. Id.
{¶32} Viewing the evidence in a light most favorable to the prosecution, we conclude that a rational trier of fact could have found proven beyond a reasonable doubt that Peacock recklessly or forcefully resisted or interfered with a lawful arrest. Therefore, Peacock‘s resisting arrest conviction is based on sufficient evidence.
{¶33} For the foregoing reasons, Peacock‘s third assignment of error is overruled.
{¶34} In his second assignment of error, Peacock argues that his conviction for possession of heroin is against the manifest weight of the evidence. Specifically, he argues that his conviction for possession of heroin is against the manifest weight of the evidence because, though Officer Elliot believes he saw Peacock discard an item while running through the alley, the officer was also suffering from a health condition that impaired his vision. (Appellant‘s Brief at 10). Further, he argues that his possession-of-heroin conviction is against the manifest weight of the evidence because the alley in which the bag of heroin was found is one known for extensive drug activity, meaning that there could very easily have been drugs in the alley before Peacock came on the scene. (Id.). Peacock further argues that his conviction
{¶35} The offense of possession of heroin is set forth in
{¶36} “No person shall knowingly obtain, possess, or use a controlled substance or a controlled substance analog. * * * If the drug involved in the violation is heroin or a compound, mixture, preparation, or substance containing heroin, whoever violates division (A) of this section is guilty of possession of heroin.”
{¶37} Many of the facts weighing in favor of Peacock‘s possession-of-heroin conviction are summarized аbove in our discussion of his first assignment of error. We find it unnecessary to review them in their entirety. We will simply note that Officer Elliot testified that, while pursuing Peacock from a distance of five to six feet behind him, he saw Peacock discard an item from his pocket, suspected the item
{¶38} McDonald testified on the State‘s behalf. (Sept. 15, 2016 Tr. at 85). McDonald was handed State‘s Exhibit 2 and identified that item as the item he saw discarded on the day in question and as the item that he picked up before handing it to another officer. (Id. 87-88). That item was previously identified as the bag containing heroin. (Nov. 24, 2015 Tr. at 34-36; State‘s Ex. 3.). McDonald testified that the officer on the scene had told him Peacock discarded something in the alley and that McDonald should go look for it. (Id. at 96). McDonald then said he went to the alley and picked up a bag that appeared to him to contain bubble gum. (Id. at 96-97). McDonald also said that he did not hear Officer Elliot call out to him as he walked down the alley. (Id. at 98). He testified that he gave the bag containing the drugs to the first officer he saw. (Id. at 100).
{¶39} Kelsey Degen (“Degen“), a forensic scientist with the Bureau of Criminal Investigation (“BCI“), testified on behalf of the State. (Sept. 15, 2016 Tr. at 116). She conducted an analysis on State‘s Exhibit 2. (Id. at 123). According to her findings, that exhibit contained heroin. (Id.; State‘s Ex. 3).
{¶41} Weighing the evidence above, we conclude that the fact-finder did not clearly lose its way in convicting Peacock of the offense of possession of heroin. Officer Elliot saw Peacock discard a bag during the chase. McDonald retrieved a bag from the alley, which Officer Elliot identified as the same bag he saw Peacock throw, and that bag contained heroin. Mr. Peacock‘s argument amounts to an assertion that the fact-finder should not have believed the state‘s witnesses because Peacock‘s version is more credible under the circumstances, but the mere fact that the officer‘s eyesight was less than perfect or that the heroin may have belonged to someone еlse does not weigh heavily against Peacock‘s conviction. State v. McCary, 10th Dist. Franklin No. 10AP-881, 2011-Ohio-3161, ¶ 16 (noting that a conviction is not against the manifest weight of the evidence simply because the fact-finder chose to believe one version of events over another). Nor does the fact that McDonald did not follow Officer Elliot‘s instructions to the letter in handling the contraband he found; regardless of the route he took to give the evidence to the police, McDonald testified that he picked up the item he saw Peacock discard, and McDonald testified that he then gave that item to law enforcement. (Sept. 15, 2016 Tr. at 87-88). The faсt-finder was permitted to believe McDonald. State v. Green, 10th Dist. Franklin No. 11AP-526, 2012-Ohio-950, ¶ 11. Therefore, Peacock‘s possession-of-heroin conviction is not against the manifest weight of the evidence.
{¶42} For the foregoing reasons, Peacock‘s second assignment of error is overruled.
Assignment of Error No. IV
Appellant Was Not Provided Effective Assistance Of Counsel When Appellant‘s Attorney Failed To Provide A Warning To Appellant Prior to Making A Statement And To Advise Appellant Regarding His Fifth Amendment Right to Remain Silent Prior To The Attorney‘s Release As Counsel of Record For Appellant.
{¶43} In his fourth assignment of error, Peacock argues that he was denied the effective assistance of counsel at trial. Specifically, he argues that his trial counsel was ineffective because his trial counsel provided no warnings to Peacock about his right to remain silent or that the statements he made at the pretrial conference could be used against him at trial. (Appellant‘s Brief at 13).
{¶44} A defendant asserting a claim of ineffective assistance of counsel must establish: (1) the counsel‘s performance was deficient or unreasonable under the circumstances; and (2) the deficient performance prejudiced the defendant. State v. Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668, 687 (1984). Prejudice results when “‘there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.‘” State v. Bradley, 42 Ohio St.3d 136, 142, quoting
{¶45} We conclude that Peacock failed to demonstrate that prejudice resulted from his trial counsel‘s alleged failures. In light of our dispositions of Peacock‘s other three assignments of error, which pertained to Counts One, Two, and Three, Peacock has not demonstrated a reasonable likelihood that the results as to those counts would have been different. We thus сonclude that Peacock has not demonstrated prejudice and that his trial counsel was not ineffective as to those counts. State v. Six, No. 98CA9, 1999 WL 339233 (May 28, 1999) (concluding that a trial counsel‘s allowing certain statements into evidence did not demonstrate prejudice where “a significant amount” of other evidence had been introduced to prove the defendant‘s guilt).
{¶46} We will now address whether Peacock has demonstrated a reasonable likelihood that the outcome as to Count Four would have been different but for his admission.
{¶47} At trial, Detective Gabriel Wedge of the Seneca County Drug Task Force (“Detective Wedge“) testified that he was involved in a controlled-buy operation that took place May 18, 2015. (Sept. 15, 2016 Tr. at 140). He said that, prior to the operation, a CI contacted him and indicated that he intended to carry out a drug transaction with someone identified as “Freak P.” (Id. at 143). “Freak P” is
{¶48} Detective Charles Boyer (“Detective Boyer“) of the Tiffin Police Department testified that, at the conclusion of the operation, he picked up the CI, and the CI provided to him a rock-like substance that Detective Boyer suspеcted was cocaine, which Detective Boyer then provided to Detective Wedge. (Sept. 15, 2016 Tr. at 210). Detective Boyer identified State‘s Exhibit 4 as the substance he provided to Detective Wedge. (Id. at 210-211).
{¶49} Larry Rentz (“Rentz“), a forensic scientist with BCI, testified that he analyzed State‘s Exhibit 4. (Id. at 188). He further identified State‘s Exhibit 5 as the report indicating that State‘s Exhibit 4 contained cocaine. (Id. at 189); (State‘s Ex. 5).
{¶51} For the foregoing reasons, Peacock‘s fourth assignment of error is overruled.
{¶52} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
ZIMMERMAN and SHAW, J.J., concur.
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