State v. PetersonState v. Peterson
Ron O‘Brien, Prosecuting Attorney, and John H. Cousins, IV, for appellee.
L. Leah Reibel, for appellant.
APPEAL from the Franklin County Court of Common Pleas.
McGRATH, J.
{¶1} Defendant-appellant, Terrance Peterson (“appellant“), appeals from a judgment of the Franklin County Court of Common Pleas convicting him of one count of possession of crack cocaine with firearm specification, a fourth-degree felony in violation of
{¶2} The following description of events underlying the charges herein was adduced at trial. At approximately 4:00 p.m. on December 10, 2007, Columbus Police Officers Raymond Hatfield and Ryan Steele observed a blue Ford Taurus fail to use its
{¶3} Seeing appellant exit the vehicle, Officer Hatfield stopped the cruiser in the middle of the street, and the officers exited the cruiser. Officer Hatfield approached appellant and asked for his driver‘s license, to which appellant responded that he did not have one. Officer Hatfield described appellant as extremely nervous, which prompted the officer to ask appellant about his demeanor. Appellant then told Officer Hatfield that there was marijuana in the glove compartment of the car. At this time, Officer Hatfield took appellant back to the cruiser to run a records check in the Law Enforcement Database System (“LEADS“).
{¶4} During this time, Officer Steele did a “clear sweep” of the vehicle to see if there were any signs of “foul play or anything illegal” in plain view. (Tr. 46.) Officer Steele observed a digital scale on the passenger‘s seat of the car. According to Officer Steele, this kind of scale is commonly used in narcotics transactions. Officer Steele went to notify Officer Hatfield of the scale, and Officer Hatfield advised Officer Steele that appellant said
{¶5} According to Officer Hatfield, when the gun was recovered, appellant “began to sob and actually started to cry” and made a statement “that he can‘t do this to his mother again.” (Tr. 112-13.) Officer Hatfield also testified that appellant told them the vehicle belonged to his sister and that he had been borrowing it for about two weeks. Appellant also indicated to Officer Hatfield that he put the marijuana in the glove compartment when he turned onto Leona Avenue. In speaking with the officers, appellant denied having any knowledge of the cocaine or the firearm but, according to Officer Hatfield, did state that he had seen the gun before and that his fingerprints could possibly be on it.
{¶6} Additional testimony at trial revealed no fingerprints were obtained from the firearm, but it was found to be operable. Also, from the three bags taken from the glove compartment, one contained 1.5 grams of cocaine base, also known as crack cocaine, one contained 13.5 grams of marijuana, and one contained 0.8 grams of marijuana. Additionally, the scale that was retrieved from the vehicle contained trace amounts of cocaine base.
{¶8} On appeal, appellant brings two assignments of error for our review:
ASSIGNMENT OF ERROR NO. 1
IT WAS ERROR FOR THE COURT TO CONVICT TERRENCE PETERSON AT A BENCH TRIAL OF HAVING WEAPONS UNDER DISABILITY WHEN THE JURY FOUND HIM NOT GUILTY OF CARRYING A CONCEALED WEAPON, AND THE FACT THAT THE JURY CONVICTED APPELLANT OF A GUN SPECIFICATION BUT FOUND HIM NOT GUILTY OF CARRYING A CONCEALED WEAPON PRODUCED AN INCONSISTENT VERDICT.
ASSIGNMENT OF ERROR NO. 2
APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL, WHEN TRIAL COUNSEL FAILED TO FILE A MOTION TO SUPPRESS THE WARRANTLESS SEARCH CONDUCTED DURING A MINOR MISDEMEANOR TRAFFIC STOP, FAILED TO REQUEST 16(b)(1)(g) MATERIAL, AND FAILED TO MAKE A RULE 29 MOTION.
{¶10} Initially, we observe that a conviction on one count of an indictment may not be reversed upon the ground that it is inconsistent with an acquittal on another count. State v. Hayes, 166 Ohio App.3d 791, 2006-Ohio-2359, ¶35, citing State v. Brown (1984), 12 Ohio St.3d 147; State v. Washington (1998), 126 Ohio App.3d 264.
{¶11} Furthermore, the offense of CCW, as codified in
(A) No person shall knowingly carry or have, concealed on the person‘s person or concealed ready at hand, any of the following:
* * *
(2) A handgun other than a dangerous ordnance[.]
{¶12} In contrast, the offense of WUD, as codified in
(A) Unless relieved from disability as provided in section 2923.14 of the Revised Code, no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if any of the following apply:
* * *
(2) The person is under indictment for or has been convicted of any felony offense of violence or has been adjudicated a delinquent child for the commission of an offense that, if committed by an adult, would have been a felony offense of violence.
(3) The person is under indictment for or has been convicted of any offense involving the illegal possession, use, sale,
administration, distribution, or trafficking in any drug of abuse or has been adjudicated a delinquent child for the commission of an offense that, if committed by an adult, would have been an offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse.
{¶13}
{¶14} A review of the elements for the two offenses and specification at issue reveals that while “concealment” is a required element for conviction of CCW it is not a required element for either the firearm specification or WUD charge. Thus, it is apparent from the statutes themselves that one could conceivably be acquitted of CCW, but convicted of WUD and/or a firearm specification and the verdicts not be inconsistent. See Hayes, supra. Moreover, to the extent the verdicts could be viewed as inconsistent, “an appellate court is not permitted to speculate about the reason for the inconsistency when it determines the validity of a verdict.” State v. Trewartha, 165 Ohio App.3d 91, 2005-Ohio-5697, ¶16, discretionary appeal not allowed by 108 Ohio St.3d 1475, 2006-Ohio-665.
{¶15} Next under this assigned error, appellant contends the trial court erred in denying his request for two jury instructions relating to the definition of possession. “The court must give all instructions that are relevant and necessary for the jury to weigh the evidence and discharge its duty as the factfinder.” State v. Joy, 74 Ohio St.3d 178, 181, 1995-Ohio-259, citing State v. Comen (1990), 50 Ohio St.3d 206, paragraph two of the syllabus. When reviewing a trial court‘s jury instruction, the proper standard of review for an appellate court is whether the trial court‘s refusal to give a requested instruction was
{¶16} Appellant does not take issue with the instructions that were given to the jury but, rather, argues the trial court should have given the following two instructions that were requested by his trial counsel:
[1.] Constructive possession exists when an individual exercises dominion and control over an object even though that object may not be within his immediate physical control[.]
[2.] The mere presence of an accused in the vicinity of contraband is insufficient to support the element of possession.
(Tr. 160, 164.)
{¶17} Though declining to give the requested instructions, the trial court instead gave the following instruction pertaining to the definition of possession from Ohio Jury Instructions (“OJI“):
Possess or possession means having control over a thing or substance 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.
(Tr. 211.)
{¶18} Notwithstanding the instruction given by the trial court, appellant contends his requested instructions were necessary to show that ” ‘just because they [the contraband] were in the vicinity doesn‘t mean that he actually possessed them.’ ”
{¶19} First we point out the trial court provided adequate jury instructions from OJI regarding the definition of possession. Secondly, appellant does not make clear how either of his proposed instructions would have assisted him further, as the given instructions accurately reflected the evidence adduced at trial. As argued by appellee, the constructive possession instruction actually renders support for appellee rather than appellant, as the instruction establishes that constructive possession exists even though the object is not in the person‘s immediate physical possession. State v. Smith, 10th Dist. No. 08AP-736, 2009-Ohio-2166, ¶41, citing State v. Wolery (1976), 46 Ohio St.2d 316. Thus, the constructive possession instruction actually expands the items that can be possessed by a person and does not render support for appellant under the facts of this case. Therefore, we cannot find the trial court abused its discretion in refusing to give the requested instruction on constructive possession.
{¶20} Similarly, appellant does not set forth how the second instruction he requested was applicable here. The evidence at trial established more than appellant‘s “mere presence” in the vicinity of contraband. Rather, the evidence demonstrated that when stopped, appellant was the sole occupant of a car containing contraband. Further, though the car did not belong to him, there was evidence appellant had been the sole user of the car for at least two weeks prior to being stopped by the police. Most notable perhaps is the evidence that appellant admitted he put marijuana in the glove compartment. Moreover, as mentioned by appellee, the trial court did instruct the jury that appellant must have acted “knowingly” with respect to the possession, CCW, and
{¶21} Lastly under his first assignment of error, appellant contends the trial court should have sustained his objections to his identification for purposes of the WUD charge.
{¶22} As is relevant here, to establish appellant was guilty of WUD, appellee had to prove beyond a reasonable doubt that appellant “is under indictment for or has been convicted of any offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse.”
{¶23} It is not entirely clear from appellant‘s brief, however, whether appellant is making an evidentiary challenge, arguing the officers’ testimony is insufficient to establish identification, or both. Regardless, we will address both issues.
{¶24} To the extent appellant suggests the trial court erred in overruling his objections to the officers’ testimony, we note that the trial court has broad discretion in the admission or exclusion of evidence. State v. Gray, 10th Dist. No. 06AP-15, 2007-Ohio-
{¶25} In addition, the WUD charge here was tried to the bench, rather than to a jury. ” ‘We indulge in the usual presumption that in a bench trial in a criminal case the court considered only the relevant, material, and competent evidence in arriving at its judgment unless it affirmatively appears to the contrary.’ ” State v. Chatman, 10th Dist. No. 08AP-803, 2009-Ohio-2504, ¶17, quoting State v. White (1968), 15 Ohio St.2d 146, 151; State v. Nasser, 10th Dist. No. 02AP-1112, 2003-Ohio-5947, ¶57, appeal not allowed by 101 Ohio St.3d 1490, 2004-Ohio-1293. Appellant has not shown, or even alleged, such circumstance here. Accordingly, we are not able to find the trial court abused its discretion in allowing the officers to testify. However, rather than argue the trial court abused its discretion in permitting the officers to testify as set forth in his brief‘s subheading, appellant states in the body of his brief that the testimony admitted over objection is “simply insufficient identification for purposes of the [WUD] statute.” (Appellant‘s brief at 9.)
{¶26} The Supreme Court of Ohio described the role of an appellate court presented with a sufficiency of the evidence argument in State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus:
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. The 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. (Jackson v. Virginia [1979], 443 U.S. 307, followed.)
{¶27} Whether the evidence is legally sufficient is a question of law, not fact. State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52. In determining the sufficiency of the evidence, an appellate court must give “full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson v. Virginia, 443 U.S. at 319. Consequently, the weight of the evidence and the credibility of the witnesses are issues primarily determined by the trier of fact. State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, ¶79; State v. Thomas (1982), 70 Ohio St.2d 79, 80. Thus, a verdict will not be disturbed unless, after viewing the evidence in a light most favorable to the prosecution, it is apparent that reasonable minds could not reach the conclusion reached by the trier of fact. State v. Treesh, 90 Ohio St.3d 460, 484, 2001-Ohio-4; Jenks at 273.
{¶28} Officers Adam Hicks and James Howe testified appellant was stopped for a traffic violation on May 1, 2005, that resulted in appellant being arrested for cocaine possession. Officer Hicks testified appellant was subsequently indicted and convicted on a possession charge. Diane Smalley, employee of the Franklin County Clerk of Courts, confirmed the authenticity of the judgment entry indicating a Terrance E. Peterson entered a guilty plea to possession of cocaine as a fourth-degree felony on November 3, 2006, in the Franklin County Court of Common Pleas.
{¶29} In this case, if believed, the evidence presented supports each element of the WUD offense for which appellant was found guilty beyond a reasonable doubt.
{¶30} For the foregoing reasons, we overrule appellant‘s first assignment of error.
{¶31} In his second assignment of error, appellant contends he was denied effective assistance of counsel. Specifically, appellant argues his trial counsel failed to file a motion to suppress, failed to request
{¶32} “The benchmark for judging any claim of ineffectiveness must be whether counsel‘s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington (1984), 466 U.S. 668, 686. In order to establish a claim of ineffective assistance of counsel, a defendant must first demonstrate that his trial counsel‘s performance was so deficient that it was unreasonable under prevailing professional norms. Id. at 687. The defendant must then establish “there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.
{¶33} According to Strickland:
A convicted defendant‘s claim that counsel‘s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel‘s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel‘s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
{¶34} “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel‘s challenged conduct, and to evaluate the conduct from counsel‘s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. at 689, quoting Michel v. Louisiana (1955), 350 U.S. 91, 101. A verdict adverse to a criminal defendant is not of itself indicative that he received ineffective assistance of trial counsel. State v. Hester (1976), 45 Ohio St.2d 71, 75.
{¶35} Appellant first contends his counsel was ineffective for failing to file a motion to suppress the evidence. “Failing to file a motion to suppress does not constitute ineffective assistance of counsel per se.” State v. Brown, 115 Ohio St.3d 55, 2007-Ohio-
{¶36} Because appellant was initially stopped for a traffic violation that constituted only a non-arrestable, minor misdemeanor, appellant contends there was no basis for the police to have searched the vehicle. In support of his position, appellant relies on the recent United States Supreme Court decision in Arizona v. Gant (2009), 556 U.S. 332, decided after the trial in this case. However, not only does appellant not accurately depict the evidence of the events surrounding appellant‘s arrest, Gant is not applicable here. In Gant, the Supreme Court held:
Police may search a vehicle incident to a recent occupant‘s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee‘s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.
{¶38} Appellant next contends his trial counsel failed to request materials in chambers pursuant to
Upon completion of a witness’ direct examination at trial, the court on motion of the defendant shall conduct an in camera inspection of the witness’ written or recorded statement with the defense attorney and prosecuting attorney present and participating, to determine the existence of inconsistencies, if any, between the testimony of such witness and the prior statement.
{¶39} According to appellant, there are inconsistencies between the testimony of Officers Steele and Hatfield and that requesting “an in camera inspection of the officers’ statements would have preserved these issues for appeal.” (Appellant‘s brief at 14.) However, appellant‘s complaint to us concerns inconsistencies in the officers’ testimony, not inconsistencies in the officers’ testimony and their prior respective statements to which
{¶40} Lastly under this assigned error, appellant states, “[a]dditionally, no Rule 29 motion for judgment of acquittal was made at the close of the state‘s evidence.” (Appellant‘s brief at 14.) This, however, is the extent of appellant‘s argument.
{¶41}
{¶42} ” ‘[F]ailure to comply with the rules governing practice in the appellate courts is a tactic which is ordinarily fatal.’ ” Lias v. Beekman, 10th Dist. No. 06AP-1134, 2007-Ohio-5737, ¶6, quoting State ex rel. Petro v. Gold, 166 Ohio App.3d 371, 2006-Ohio-943, ¶51, appeal not allowed, 110 Ohio St.3d 1439, 2006-Ohio-3862, reconsideration denied, 111 Ohio St.3d 1418, 2006-Ohio-5083. “It is not the duty of [an appellate] court to search the record for evidence to support an appellant‘s argument as to alleged error.” Id. at ¶94, citing Slyder v. Slyder (Dec. 29, 1993), 9th Dist. No. 16224;
{¶43} For the foregoing reasons, we overrule appellant‘s second assignment of error.
{¶44} In conclusion, appellant‘s two assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas is hereby affirmed.
Judgment affirmed.
TYACK and CONNOR, JJ., concur.
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