778 N.E.2d 101 | Ohio Ct. App. | 2002
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{¶ 2} On May 21, 2001, Mechanicsburg police officer Doug Smith received a radio report that the driver of a vehicle approaching Mechanicsburg might be under the influence of alcohol. It was also reported that the vehicle, a Ford Taurus, had a broken taillight.
{¶ 3} Officer Smith spotted the vehicle and followed it. The vehicle drove into a convenience store drive-through, the Burg One, and emerged shortly after. Officer Smith stopped the vehicle after it had traveled a short distance.
{¶ 4} Defendant Ruby was the operator of the vehicle. He had one passenger. Ruby appeared to Officer Smith to be nervous and hyperactive. Ruby, who identified himself as Ronald Hill, was unable to produce a driver's license, registration, or proof of insurance. Officer Smith saw open and closed alcohol containers in the vehicle, and he smelled an odor of alcohol from inside. He asked Ruby to submit to field sobriety tests.
{¶ 5} When Ruby stepped from the vehicle he told Officer Smith: "I know what this is about. The woman back at the Burg One Stop gave me too much change back." Ruby then handed Officer Smith one hundred and fifty dollars in cash and asked him to return it to the cashier at Burg One and to let him go on his way. It was at that point that the police radio dispatcher called Officer Smith to tell him that the cashier at the Burg One had just reported a theft involving a quick change scheme employed by the driver of a vehicle that had stopped there shortly before.
{¶ 6} Ruby failed the field sobriety tests, and he and his passenger were arrested. Officer Smith returned with Ruby to the Burg One, where the cashier, Lucy Sherman, identified Ruby as the man who had swindled her. Officer Smith then took both men to jail. Ruby was booked under the name he gave Officer Smith, which was Ronald Hill.
{¶ 7} Officer Smith returned to where Ruby's vehicle was parked and searched it. He found a crack pipe and a small rock of crack cocaine on the floor behind the driver's seat, from which they apparently had fallen when Officer *548 Smith probed between the seat and seat back. He also discovered a checkbook belonging to Ruby in the glovebox.
{¶ 8} Officer Smith later learned Defendant Ruby's true name. When Officer Smith called the vehicle's registered owner, Donna Ruby, she confirmed that the driver was her husband, Jeff Ruby. She also said that Ronald Hill is her son's name.
{¶ 9} Defendant was indicted for possession of crack cocaine, R.C.
{¶ 10} At trial, Lucy Sherman identified Ruby as the man who had cheated her out of $179.42 in the fast change scheme. Defendant's wife testified that the car he drove was hers, and that drug users had had access to it that day. Defendant didn't testify.
{¶ 11} Both Officer Smith and another witness, Robert DeWitt, testified that Ruby declined to make a statement after being givenMiranda warnings. DeWitt testified:
{¶ 12} "Well, he was in the holding cell, meaning Officer Smith went to the holding cell. Mr. Smith yelled, asked him, "Mr. Ruby"? Mr. Ruby turned up because he was lying there looking at us. Then he told him that we had found out his real name and told him the item that we found in the car. Mr. Smith began to read him his Miranda rights and then asked him if he wanted to comment about it and he replied, "No, you're gonna do whatever you want. There's nothing I can say is gonna change it." And then he laid back down." (T. 168-169).
{¶ 13} Officer Smith testified:
{¶ 14} ". . . I walked in, and he was laying with a blanket pulled over his head. I said "Mr. Ruby?" and he pulled his blanket down, looked at me, and asked "What." I said "I understand your name is Jeffery Ruby." And he said "Man, leave me alone." And I then proceeded to read him hisMiranda rights. I asked, I informed him that I had found some other items in his car, including the pipe and the suspected crack cocaine. Asked him if he wanted to tell me anything about that. He said "Man, you're gonna do whatever you're gonna do. Just leave me alone. Let me go back to sleep." And he pulled the blanket back over his head." (T. 207-208).
{¶ 15} On cross-examination, Officer Smith conceded that Ruby was merely exercising his constitutional right when he elected not to speak or to deny that the crack and crack pipe found in his car belonged to him. Following that, on re-direct of Officer Smith by the prosecutor, the following colloquy ensued: *549
{¶ 16} "Q. He also had the opportunity at that time to say `I don't know what you're talking about; that stuff wasn't mine'?
{¶ 17} "A. That's correct." (T. 229-230).
{¶ 18} The prosecutor exploited the fact of Defendant's silence in his statements to the jury. In his opening statements the prosecutor told the jury:
{¶ 19} "We believe that the evidence will show, and that the defendant will be convicted not only by what he said on May 21st, 2001, but also by what he did not say." (T. 119).
{¶ 20} In his closing argument the prosecutor said:
{¶ 21} "I told you that the defendant would be convicted on what he said and what he didn't say." (T. 266).
{¶ 22} "We know that the defendant, when confronted with the crack pipe and the cocaine, didn't deny that it was his crack pipe. Didn't deny that it was his cocaine. The judge will instruct you that — use your common sense, and if, in fact, you're using your common sense, what are you going to do? You're going to deny it." (T. 271).
{¶ 23} The jury returned verdicts of guilty, and Defendant was convicted and sentenced. He filed a timely notice of appeal.
FIRST ASSIGNMENT OF ERROR
{¶ 24} "The trial court committed reversible error in allowing the state to use evidence of appellant's silence after receiving hisMiranda warnings as evidence of his guilt in its opening statement, case-in-chief and summation."
{¶ 25} The
{¶ 26} If a defendant's exercise of the
{¶ 27} R.C.
{¶ 28} R.C.
{¶ 29} "`Possess' or `possession' means that 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."
{¶ 30} Possession may be actual or constructive. When possession is alleged to be constructive, the crucial issue is not whether the accused had actual physical contact with the article concerned, but whether the accused was capable of exercising dominion or control over it. State v.Brooks (1996),
{¶ 31} The evidence the State offered concerning Defendant's exercise of his
{¶ 32} Had the evidence that Defendant exercised his
{¶ 33} The first assignment of error is overruled. *551
SECOND ASSIGNMENT OF ERROR
{¶ 34} "Appellant's convictions for possession of a controlled substance and possession of drug paraphernalia are against the manifest weight of the evidence."
{¶ 35} Defendant points out that the only evidence the State presented to demonstrate that he knowingly possessed the crack pipe and crack cocaine in question was that those items were found inside the vehicle Defendant was driving. Defendant also points out that the State failed to prove that he was the only person who had access to that vehicle that day. Further, the evidence demonstrates that the vehicle belonged to Defendant's wife, that Defendant frequently loaned the vehicle to other people, including known drug dealers, and that when he was arrested a known drug dealer who had used the car earlier that day was in the car with him. Thus, Defendant argues, the evidence is insufficient to prove that he knowingly possessed the crack pipe and crack cocaine, and his convictions for those offenses are against the manifest weight of the evidence.
{¶ 36} Constructive possession exists when an individual is able to knowingly exercise dominion or control over an object, even though it is not within his immediate physical possession. State v. Hankerson
(1982),
{¶ 37} A sufficiency of the evidence argument challenges 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. Thompkins,
{¶ 38} "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." *552
{¶ 39} A weight of the evidence argument challenges the believability of the evidence, and asks which of the competing inferences suggested by the evidence is more believable or persuasive. State v. Hufnagle (Sept. 6, 1996), Montgomery App. No. 15563, unreported. The proper test to apply to that inquiry is the one set forth in State v. Martin (1983),
{¶ 40} "The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered."
{¶ 41} This court will not substitute its judgment for that of the trier of facts on the issue of witness credibility unless it is patently apparent that the factfinder lost its way. State v. Bradley (October 2, 1997), Champaign App. No. 97-CA-03, unreported.
{¶ 42} The evidence demonstrates that Defendant frequently loaned his wife's vehicle to other people, including known drug dealers, and that Defendant's wife often found and removed drug paraphernalia from her vehicle. On the day Defendant was arrested, he had loaned the vehicle to a known drug dealer earlier in the day, and the drug dealer was in the vehicle with Defendant when Officer Smith stopped them. Defendant was driving that vehicle when Officer Smith stopped it. A crack pipe and piece of crack cocaine was recovered from the vehicle's floor of the rear passenger compartment, behind the driver's seat in which Defendant was seated. Defendant's checkbook was found in the glove box.
{¶ 43} Viewing the circumstantial evidence in this case in a light most favorable to the State, a rational trier of fact could conclude beyond a reasonable doubt that Defendant constructively possessed the drug paraphernalia and crack cocaine found in the vehicle. Defendant's conviction for those offenses is supported by legally sufficient evidence.
{¶ 44} Moreover, despite Defendant's claim that he did not know there was contraband in the vehicle and his suggestion that those items were put there by the known drug dealer who was also in the vehicle, in reviewing the record as a whole we cannot say that the evidence weighs heavily against a conviction, that the jury lost its way, or that a manifest miscarriage of justice was resulted. It was within the province of the jury as triers of fact to determine the credibility of the witnesses.State v. DeHass (1976),
{¶ 45} The second assignment of error is overruled. *553
THIRD ASSIGNMENT OF ERROR
{¶ 46} "The trial court committed reversible error in allowing a witness to identify appellant in court based on prior prejudicially suggestive identifications."
{¶ 47} Defendant argues that the trial court abused its discretion in not excluding his identification by Lucy Sherman, the clerk at the Burg One Stop, because her identification was based upon two impermissibly suggestive pretrial identification procedures. The first occurred after Defendant was stopped and taken into custody by Officer Smith, and was then taken back to the Burg One Stop and presented to Lucy Sherman who identified him in a "show-up" procedure. The second occurred the night before Defendant's trial began, when the prosecutor showed Lucy Sherman a single photograph of Defendant to aid her in identifying him.
{¶ 48} First, we note that Defendant failed to file any pretrial motion to suppress the identification testimony in this case. Thus, Defendant has waived all but "plain error" regarding that issue. Crim.R. 12(C), (H).
{¶ 49} The critical inquiry with respect to pretrial identifications is whether on the totality of the circumstances the identification was reliable, notwithstanding that the identification procedure may have been suggestive. Neil v. Biggers (1972),
{¶ 50} The evidence demonstrates that the transaction between Defendant and Lucy Sherman at the Burg One Stop lasted several minutes, during which time Sherman talked to Defendant and exchanged money with him. Sherman realized Defendant had swindled her after he drove away. Officer Smith stopped Defendant a short distance from the Burg One Stop. Lucy Sherman could see that police had stopped Defendant down the street. Just minutes after Defendant left the Burg One Stop he was returned there by Officer Smith. Lucy Sherman then identified Defendant as the perpetrator, saying she remembered his face. Moreover, before Defendant was returned to the Burg One Stop by police he admitted he had been there shortly before and had been given too much change by the clerk.
{¶ 51} On the totality of these facts and circumstances, Lucy Sherman's identification of Defendant at this show-up procedure was reliable. Accordingly, we see no error, much less plain error, in admitting this identification evidence. *554
{¶ 52} With respect to the prosecutor's conduct in showing Lucy Sherman a single photograph depicting only Defendant the night before trial in order to aid her in-court identification, we believe that this procedure is much more suggestive and might well create a substantial likelihood of misidentification. We strongly disapprove of such tactics. However, Defendant made statements to Officer Smith implicating him in the incident at the Burg One Stop. Therefore, any prejudice to Defendant arising from Sherman's view of the single photograph is not a basis for reversible error. We cannot say that but for Sherman's identification of Defendant after seeing a single photograph, the outcome of this trial would clearly have been different. Plain error has not been demonstrated.
{¶ 53} The third assignment of error is overruled.
FOURTH ASSIGNMENT OF ERROR
{¶ 54} "Appellant received ineffective assistance of counsel in violation of the
{¶ 55} Defendant complains that his trial counsel was ineffective for failure to object to (1) the prosecutor's use of Defendant's invocation of his
{¶ 56} "A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or setting aside of a death sentence requires that the defendant show, first, that counsel's performance was deficient and, second, that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial.
{¶ 57} "The proper standard for judging attorney performance is that of reasonably effective assistance, considering all the circumstances. When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness. Judicial scrutiny of counsel's performance must be highly deferential, and 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. A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland v. Washington (1984),
{¶ 58} In Strickland, the court expressly rejected the standard employed by the plain error rule when determining whether the accused was sufficiently *555
prejudiced by counsel's deficient performance that reversal is required. The Court pointed out that the plain error standard "presupposes that all the essential elements of a presumptively accurate and fair proceeding were present in the proceeding whose result is challenged (while) an ineffective assistance claim asserts the absence of one of the crucial assurances that the result of the proceeding is reliable, so finality concerns are somewhat weaker and the appropriate standard of prejudice should be somewhat lower. The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." The court went on to state that, instead, "in order to show the prejudice which an ineffective assistance of counsel claim requires "[t]he defendant must show that 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
{¶ 59} The lesser standard for reversible error that Strickland defines is significant. The reasonable probability it requires the defendant to show is necessarily weighed against the burden imposed on the state to prove its case "beyond a reasonable doubt." If, then, confidence in a conviction based on that finding is undermined, the defendant must be given a new trial.
{¶ 60} As we previously discussed, the weakness in the State's case with respect to the drug charges was proving whether Defendant "knowingly possessed" the crack pipe and the crack cocaine. Those items were not discovered on Defendant's person, but on the floor of the rear passenger compartment of the vehicle Defendant drove. There was evidence that vehicle was not his, and that other people, including known drug dealers, had access to that vehicle that day.
{¶ 61} The prosecutor deliberately used Defendant's exercise of his right to remain silent as evidence that those articles found in the car were Defendant's, arguing that an innocent person would have denied that the contraband was his when confronted with them. That argument provided the nexus required for the jury to find that Defendant knowingly possessed those items, and thus was guilty.
{¶ 62} Applying the Strickland standard, we conclude that defense counsel's failure to object to the prosecutor's improper use of Defendant's post Miranda warnings silence fell below an objective standard of reasonableness and constitutes deficient performance. Moreover, in our view, absent counsel's failure to challenge the admission of that improper evidence under these facts and circumstances, there exists a reasonable probability of a different outcome on those possession charges, one sufficient to undermine our confidence in the outcome of this trial. Prejudice, under the Strickland standard, has therefore been demonstrated. *556 Defendant's conviction and sentence for possession of crack cocaine and possession of drug paraphernalia will be reversed and remanded for further proceedings.
{¶ 63} With respect to the theft offense, as we discussed, Lucy Sherman's identification of Defendant as a result of the show-up procedure was reliable and therefore admissible. Defense counsel's failure to object to that evidence cannot constitute deficient performance. Counsel's failure to object to the identification made after Sherman was shown a single photograph of Defendant the night before trial commenced, and his failure to move to suppress that identification, does constitutes deficient performance, in our view. However, given that Defendant made statements to police implicating himself in the incident that occurred at the Burg One Stop, there is not a reasonable probability of a different outcome on the theft charge had defense counsel moved to suppress Lucy Sherman's identification testimony. Prejudice resulting from counsel's omission has therefore not been shown.
{¶ 64} The fourth assignment of error is sustained in part and overruled in part.
FIFTH ASSIGNMENT OF ERROR
{¶ 65} "The trial court erred in imposing the maximum sentence upon appellant."
{¶ 66} Defendant argues that this record fails to demonstrate that the trial court made the findings necessary to impose the maximum sentence.
{¶ 67} Defendant was found guilty of possessing a small amount of crack cocaine, a fifth degree felony. The trial court sentenced him to one year imprisonment, the maximum sentence authorized for that offense. R.C.
{¶ 68} The trial court's journal entry imposing sentence states:
{¶ 69} "The court has considered and weighed the statutory sentencing factors and makes these findings.
{¶ 70} "* * *
{¶ 71} "The factors that determine that recidivism is more likely are: *557
{¶ 72} "1. Defendant's history of criminal convictions.
{¶ 73} "2. The Defendant has not responded favorably to sanctions previously imposed.
{¶ 74} "3. Defendant's drug abuse pattern is related to the offense and the Defendant does not acknowledge the pattern."
{¶ 75} The foregoing language, while not identical to that of R.C.
{¶ 76} The fifth assignment of error is overruled.
SIXTH ASSIGNMENT OF ERROR
{¶ 77} "The cumulative errors described above so prejudiced appellant that a new trial is required."
{¶ 78} Defendant argues that the cumulative effect of the errors that occurred during his trial deprived him of a fair trial. State v. Moore,
{¶ 79} The sixth assignment of error is overruled.
SEVENTH ASSIGNMENT OF ERROR
{¶ 80} "The trial court incorrectly calculated appellant's jail time credit."
{¶ 81} The written judgment of conviction and sentence that the trial court entered on January 30, 2002, states: "there is no jail time credit." Defendant filed a timely notice of appeal from that judgment on February 8, 2002.
{¶ 82} Subsequently, Defendant filed two motions, on February 13 and June 6, 2002, asking the court to credit him with time he served in jail following his convictions and until he was sentenced.1 The court denied both motions. Defendant filed a timely notice of appeal following the second denial. *558
{¶ 83} Defendant's second appeal was docketed as Case No. 02-CA-22. Defendant's prior appeal, founded on the notice of appeal he filed on February 8, 2002, was docketed as Case No. 02CA06.
{¶ 84} The State argues that the second appeal, Case No. 02CA22, is barred by the doctrine of res judicata. We agree with Defendant, however, that res judicata doesn't apply because both appeals arise from the proceedings in but one underlying action, and res judicata applies to subsequent actions.
{¶ 85} Nevertheless, two other problems confront Defendant in Case No. 02CA22. The first is that the notice of appeal that Defendant filed on February 8, 2002, deprived the trial court of jurisdiction to grant the relief Defendant sought in his subsequent motions of February 13 and June 6, 2002. State ex rel. Special Prosecutors v. Judges (1978),
{¶ 86} Defendant's second problem is that, not having raised this issue in the error he assigned in the merit brief he filed in Case No. 02CA06, Defendant may have waived his right to complain of it further. However, waiver is a discretionary doctrine, and we may decline to apply it in the interests of justice. We do that here, believing that if Defendant is again convicted on remand, the same issue may again arise. Therefore, the two cases are consolidated for purposes of review and the issue Defendant raises will be considered as the seventh assignment of error.
{¶ 87} The jail time credit of which Defendant complains involves the time between his conviction on November 20, 2001, and the judgment entry of conviction and sentence the court journalized on January 30, 2002, a period of seventy-one days. Defendant remained incarcerated during that time after the court exercised the discretion conferred on it by Crim.R. 32(A) to commit him rather than set a bond. The same rule requires that "[s]entence shall be imposed without unnecessary delay."
{¶ 88} Defendant relies on R.C.
{¶ 89} "The adult parole authority shall reduce the minimum and maximum sentence or the definite sentence of a prisoner by the total number of days that the prisoner was confined for any reason arising out of the offense for which he was convicted and sentenced, including confinement in lieu of bail while awaiting trial, confinement for examination to determine his competence to stand trial or sanity, confinement in a community based correctional facility and program or district community based correctional facility and program, and confinement while awaiting transportation to the place where he is to serve his sentence." *559
{¶ 90} The relief that R.C.
{¶ 91} We have encouraged the trial courts of this appellate district to state in their sentencing entries the amount of jail time credit to which a defendant is entitled, as an aid to the Adult Parole Authority in discharging the duty imposed on it by R.C.
{¶ 92} The court stated no basis for its holding here. It appears that the court may have adopted the State's contention that Defendant was not entitled to jail time credit for the term between his conviction and sentence because he was then also incarcerated on independent misdemeanor charges. R.C.
{¶ 93} The seventh assignment of error is overruled.
{¶ 94} Defendant's conviction and sentence for possession of cocaine and possession of drug paraphernalia will be reversed, and that cause remanded to the trial court for further proceedings pursuant to our disposition of the fourth assignment of error. Defendant's conviction and sentence for theft will be affirmed.
Judgment reversed in part, affirmed in part and cause remanded.
WOLFF, P.J. and FREDERICK N. YOUNG, J., concur.
