STATE OF OHIO v. JAMES SCOTT, JR.
CASE NO. CA2012-06-052
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO WARREN COUNTY
7/1/2013
[Cite as State v. Scott, 2013-Ohio-2866.]
RINGLAND, J.
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 05CR22106
Brent E. Rambo, 15 West Fourth Street, Suite 250, Dayton, Ohio 45402, for defendant-appellant
RINGLAND, J.
{¶ 1} Defendant-appellant, James Scott, Jr., appeals his convictions and sentence in the Warren County Common Pleas Court for various offenses of trafficking in and possession of crack cocaine and cocaine.1 For the reasons set forth below, we affirm the convictions
{¶ 2} On February 25, 2005, appellant was indicted on nine counts of trafficking and possession of cocaine and crack cocaine including (1) five counts of trafficking in crack cocaine in violation of
{¶ 3} A two-day jury trial was held on October 27-28, 2005. At trial, the state called Detective Dan Schweitzer of the Warren County Drug Task Force as its first witness. Schweitzer testified that he became aware of appellant through confidential informants who stated that appellant was “a large scale cocaine, crack cocaine drug dealer in Warren County.”
{¶ 4} Schweitzer further testified regarding several drug transactions made between appellant and a confidential informant. During each transaction, the confidential informant wore a wireless transmitter that allowed Schweitzer to monitor the transaction. In each transaction, the drugs were exchanged for “prerecorded money” that was provided by the Warren County Drug Task Force.3 Each transaction between appellant and the confidential informant took place at either appellant‘s residence, located at “280 West Pekin Road,
{¶ 5} The first transaction occurred on November 16, 2004 at the Robinson Vail Residence wherein Schweitzer purchased a “half ounce” of crack cocaine from appellant for $400. Brooke J. Dunn, a forensic chemist with the Miami Valley Regional Crime Laboratory, would later testify that the substance purchased by Schweitzer was 13.43 grams of crack cocaine.
{¶ 6} The second transaction occurred on November 29, 2004 at the Robinson Vail Residence wherein Schweitzer purchased “an ounce of crack cocaine” from appellant for $780. Dunn later testified that the substance purchased by Schweitzer was 26.89 grams of crack cocaine.
{¶ 7} The third transaction occurred on December 8, 2004 at the Pekin Road Residence wherein the confidential informant purchased “2 ounces of crack cocaine” from appellant‘s wife. Schweitzer explained that appellant was “out of state, in Florida, at a funeral of his family member.” Therefore, appellant arranged for his wife to supply Schweitzer with the crack cocaine and Schweitzer arranged for the confidential informant to retrieve the drugs. Dunn later testified that the substance purchased by the confidential informant was 26.73 grams of crack cocaine.
{¶ 8} The fourth transaction occurred on December 21, 2004 at the Robinson Vail Residence wherein Schweitzer purchased “one ounce of crack cocaine” for $765 from appellant. Dunn later testified that the substance purchased by Schweitzer was 26.73 grams
{¶ 9} The fifth transaction occurred on December 27, 2004 off of Manchester Road near the Robinson Vail Residence in Schweitzer‘s vehicle. Schweitzer testified that he purchased five ounces of crack cocaine from appellant for $3,600. Dunn later testified that the substance purchased by Schweitzer was 134.82 grams of crack cocaine.
{¶ 10} After the fifth transaction, police followed appellant back to his Pekin Road Residence where he was placed under arrest and his house was searched. During the search several items were seized including two handguns, a safe containing paperwork belonging to appellant and $46,003 in cash, surveillance equipment, cutting agents for cocaine, “miscellaneous drug paraphernalia,” and both crack cocaine and cocaine.4 Dunn later testified that the multiple packages of substances confiscated from appellant‘s Pekin Road Residence contained 1,110.37 grams of cocaine and 445.20 grams of crack cocaine.
{¶ 11} After the case was submitted to the jury for deliberation, but prior to the returning of a verdict, appellant absconded.5 Nevertheless, on October 28, 2005, the jury returned a verdict of guilty against appellant on all nine counts. Seven years later, appellant was apprehended during a traffic stop in Dayton, Ohio and returned to Warren County for sentencing. On May 30, 2012, appellant was sentenced to a total of 18 years in prison.
{¶ 12} From his convictions and sentence, appellant appeals, raising three assignments of error.
{¶ 13} Assignment of Error No. 1:
{¶ 14} APPELLANT‘S TRIAL COUNSEL WAS INEFFECTIVE AND APPELLANT WAS PREJUDICED THEREBY.
{¶ 15} In his first assignment of error, appellant asserts that his 2005 trial counsel was
{¶ 16} “To establish a claim of ineffective assistance of counsel, a defendant must show that his or her counsel‘s actions were outside the wide range of professionally competent assistance, and that prejudice resulted by reason of counsel‘s actions.” State v. Dominguez, 12th Dist. No. CA2011-09-010, 2012-Ohio-4542, ¶ 19, citing State v. Ullman, 12th Dist. No. CA2002-10-110, 2003-Ohio-4003, ¶ 43; Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984). Trial counsel‘s performance will not be deemed ineffective unless appellant demonstrates that “counsel‘s representation fell below an objective standard of reasonableness and that there exists a reasonable probability that, were it not for counsel‘s errors, the result of the proceeding would have been different. Id.; Strickland at 688; State v. Bradley, 42 Ohio St.3d 136, 143 (1989). “A reasonable probability is ‘a probability sufficient to undermine confidence in the outcome of the proceeding.‘” State v. Fields, 102 Ohio App.3d 284 (12th Dist.1995), quoting Strickland at 694. “A defendant bears the burden of demonstrating ineffective assistance of counsel.” Dominquez at ¶ 19, citing State v. Bishop, 12th Dist. No. CA97-07-081, 1998 WL 102994, * 1 (Mar. 9, 1998); State v. Hamblin, 37 Ohio St.3d 153, 155-156 (1988)
Hearsay Testimony
{¶ 17} Appellant first contends trial counsel was ineffective in failing to object to several hearsay statements made during the course of Schweitzer‘s testimony. Specifically, appellant argues trial counsel was ineffective for failing to object to hearsay statements regarding (1) the initiation of the investigation into appellant, (2) the confidential informant, and (3) a bill of lading found in appellant‘s Pekin Road Residence.
1. Initiation of Investigation
STATE: And how did [appellant] first come on the radar with the Warren County Drug Task Force?
SCHWEITZER: I met with Detective Back, who had met with a source of information. This source of information provided a lot of details in reference to [appellant,] including where he lives, vehicles that he drove, motorcycles that he had, and that he had not worked in some time, and that he was a large scale cocaine, crack cocaine drug dealer in Warren County.
{¶ 19} According to
{¶ 20} However, out-of-court statements may be admissible as non-hearsay if they are used to explain a witness‘s actions. Penwell at ¶ 13. “As the Ohio Supreme Court has stated, ‘it is well established that extrajudicial statements made by an out-of-court declarant are properly admissible to explain the actions of a witness to whom the statement was directed.‘” Id., quoting State v. Thomas, 61 Ohio St.2d 223, 232 (1980). “‘For example, where statements are offered to explain an officer‘s conduct while investigating a crime, such statements are not hearsay.‘” Id., quoting State v. Blevins, 36 Ohio App.3d 147, 149 (10th Dist.1987).
{¶ 21} In his testimony, Schweitzer did not relay any out-of-court statements to the jury but, rather, discussed why the Warren County Drug Task Force had begun an investigation
2. Confidential Informant
{¶ 22} Appellant next argues trial counsel was ineffective in failing to object to “full areas of hearsay testimony” by Schweitzer regarding drug transactions that occurred between appellant and the confidential informant on October 26, 2004, November 8, 2004, and December 8, 2004. Specifically, appellant takes issue with testimony from Schweitzer that the confidential informant “purchased” crack cocaine from “Mr. Scott.” Appellant claims that the only way Schweitzer could have known that the confidential informant actually purchased drugs from appellant was if the confidential informant told this to Schweitzer. As the statements of the confidential informant would be inadmissible hearsay, appellant contends that trial counsel should have objected.
{¶ 23} In this case, trial counsel did, in fact, object and request a “continuing objection” as to all testimony regarding the confidential informant. When Schweitzer first began to discuss the confidential informant, trial counsel objected stating, “The confidential informant is not going to appear. We would object to any hearsay as to what Detective Schweitzer has to say.” This objection was overruled by the trial court. After further testimony by Schweitzer, the following exchange took place:
TRIAL COUNSEL: Your honor, we ask for a continuing objection on the confidential informant.
THE COURT: What the confidential informant did?
TRIAL COUNSEL: No. Any discussion about the confidential informant if the confidential informant is not going to
appear. THE COURT: Is your objection as to what the confidential informant did?
TRIAL COUNSEL: Correct.
THE COURT: What he did?
TRIAL COUNSEL: Yes.
THE COURT: On what basis is that objectionable?
TRIAL COUNSEL: It‘s tantamount to hearsay because—
THE COURT: As to what the detective observed the confidential informant to do (sic)?
TRIAL COUNSEL: Well, when he was making the buy, [Schweitzer] was obviously not there.
THE COURT: The objection is overruled.
{¶ 24} Appellant claims these objections were “not made articulately enough to glean exactly what the objection asserted” and, therefore, trial counsel was ineffective. However, from our reading of the record, trial counsel‘s objections clearly argue that Schweitzer‘s testimony regarding the confidential informant is hearsay. There is no requirement of how well an objection must be articulated so long as trial counsel‘s conduct does not fall below an objective standard of reasonableness. See Strickland, 466 U.S. at 668. In this case, trial counsel‘s objections to the admission of testimony regarding the confidential informant did not fall below an objective standard of reasonableness for not being “articulate enough.” The arguments appellant is making before this court are synonymous to the arguments addressed by trial counsel to the trial court. Therefore, as trial counsel did object to testimony regarding the confidential informant, we find appellant‘s ineffective assistance of counsel argument without merit.
{¶ 25} Nevertheless, even if trial counsel had failed to make said objections, we would
{¶ 26} In this case, Schweitzer never testified as to statements made by or to the confidential informant. Rather, Schweitzer explained that, prior to each drug transaction with appellant, he and another officer patted down the confidential informant, put a wireless transmitter on his person, and gave the confidential informant “prerecorded buy money.” Schweitzer then testified that he observed the confidential informant drive to either the Pekin Road Residence or the Robinson Vail Residence and enter the residence. After the confidential informant entered the residence and was no longer visible to Schweitzer, he could still listen to the confidential informant through the wireless transmitter. Detective Michael Back of the Franklin Police Department confirmed during his testimony that officers could listen through the wireless transmitter to the transactions as they occurred and that he and Schweitzer listened to the December 8, 2004 transaction while it took place. Schweitzer further testified that he knew appellant‘s voice and was able to identify it based upon his personal contact with appellant and through telephone conversations. Finally, Schweitzer testified that after each drug transaction he would meet with the confidential informant and retrieve any drugs as well as the wireless transmitter. Thus, Schweitzer‘s testimony related to what he visibly and aurally observed during the October 26, 2004, November 8, 2004, and December 8, 2004 drug transactions involving the confidential informant.
{¶ 27} From our review of the record, it is clear that Schweitzer testified regarding details that he visibly saw or heard over the wireless transmitter. Schweitzer never testified as to what the confidential informant said or attempted to use the confidential informant‘s out-
{¶ 28} Therefore, we find that trial counsel was not ineffective for failing to object to statements made by Schweitzer as trial counsel did object to this testimony and Schweitzer‘s testimony regarding the confidential informant did not include hearsay.
3. Bill of Lading
{¶ 29} Appellant additionally claims that trial counsel was ineffective in failing to object to testimony regarding a bill of lading found in appellant‘s Pekin Road Residence. Specifically, appellant argues that the following testimony should have been objected to by trial counsel:
SCHWEITZER: This is a J&S Trucking bill of lading. It basically is where [appellant] had the BMW that he purchased from Texas shipped from Texas to his residence at 280 West Pekin Road, a BMW 318i, a 2000. It has the VIN. And has that it‘s paid in full, $550, to have it delivered from Texas to Ohio.
Appellant contends that, as the bill of lading had not been authenticated by its maker, or authenticated as a business record, and was used as an out-of-court statement to prove the truth of the matter asserted—that appellant had a BMW delivered from Texas to his home in Ohio—the evidence was inadmissible hearsay.
{¶ 30} Schweitzer‘s testimony regarding the bill of lading was not offered to prove that appellant did, in fact, purchase a 2000 BMW 318i and shipped it from Texas to Ohio. Rather, the testimony was elicited to demonstrate that appellant earned so much money trafficking in cocaine and crack cocaine that he was able to afford expensive vehicles including the BMW. Thus, Schweitzer‘s testimony was not hearsay, as it was not used to prove the truth of the matter asserted.
{¶ 32} Appellant additionally makes a one-sentence argument that certain testimony by Schweitzer regarding non-indicted drug transactions should have been excluded at trial under
{¶ 33} Based upon the foregoing, we conclude that trial counsel was not ineffective in failing to object to hearsay testimony at trial, as trial counsel did object to said testimony, the testimony was not hearsay used to prove the truth of the matter asserted, and appellant has
Admission of Unauthenticated Photographs
{¶ 34} We now turn to appellant‘s argument that trial counsel was ineffective in failing to object to the admission and discussion of photographs that were not properly authenticated pursuant to
{¶ 35} Pursuant to
{¶ 36} Photographic and video evidence is generally authenticated in two ways. Pertinent to this case, a photograph may be authenticated by having a person with knowledge state that the photograph represented a “fair and accurate depiction of the actual item at the time the picture was taken.” Id. at ¶ 66, citing
4. Photograph of “Buy Money”
{¶ 37} First, appellant contends that trial counsel was ineffective for failing to object to the admission of an unauthenticated photograph allegedly depicting “buy money” from a transaction between Schweitzer, acting undercover, and appellant.
{¶ 38} Schweitzer testified that, on December 27, 2004, he provided appellant $3,600 in prerecorded money wrapped in a rubber band in exchange for five ounces of cocaine. After the transaction, Schweitzer observed appellant enter his vehicle, a “white Chevy Extreme truck,” and drive to his Pekin Road Residence where appellant was arrested. Upon arriving at the Pekin Road Residence, Schweitzer testified that he observed the money he had given appellant “laying in the front passenger seat of the white Chevy Extreme truck exactly how I handed it to him, in a rubber band, just laying on the seat.” Schweitzer was then shown a photograph of the money and testified that the photograph was a true and accurate photograph of the “money laying on the front seat of [appellant‘s] Chevy truck.”
{¶ 39} Based upon this testimony, the photograph of the money was properly authenticated by a witness with knowledge that the photograph is a true and accurate depiction of what it claims to be. Therefore, trial counsel was not ineffective in failing to object to the admission of the photograph of the “buy money,” as the objection would have been overruled.
5. Photograph of Handgun
{¶ 40} Appellant further argues trial counsel was ineffective for failing to object to the admission of an unauthenticated photograph of a handgun found near a safe in appellant‘s
{¶ 41} Based upon this testimony, the photograph of the handgun was properly authenticated by a witness with knowledge that the photograph is a true and accurate depiction of what it claims to be. Therefore, trial counsel was not ineffective in failing to object to the admission of the photograph of the handgun, as the objection would have been overruled.
Prejudicial Speculation by Detectives
{¶ 42} Finally, appellant alleges that trial counsel was ineffective for failing to object to testimony by Schweitzer wherein the detective “speculates” that items found in appellant‘s Pekin Road Residence were “cutting agents” and drug paraphernalia used in the sale of cocaine. Specifically, appellant objects to the following line of testimony regarding a bag found in appellant‘s residence:
STATE: Okay. And were you able to determine what was in that bag?
SCHWEITZER: I think the crime lab did an analysis and found no controlled substance. A cutting agent for cocaine is what I believe it to be.
STATE: All right. With your experience and training in the drug trafficking area, and in dealing with cocaine or crack cocaine, could you tell the jury what a
cutting agent is? SCHWEITZER: A cutting agent is something that is used to double the volume of cocaine, thus making more profit. Let‘s say, for example, that you buy a kilo of cocaine and you add a cutting agent to it so you can turn it into could [sic] 2 kilos of cocaine. So, basically, when you start selling it, breaking it down, you‘re making a lot more profit.
Most people use baby formula or an inositol powder, which is a dietary supplement. That‘s what most of the time is used. Baking soda sometimes.
Appellant further takes issue with additional testimony from Schweitzer that a scale found in appellant‘s residence was “used to weigh out marijuana and cocaine.”
{¶ 43}
{¶ 44} “To satisfy the first requirement of
{¶ 46} As to these matters, Schweitzer testified as to how he interpreted the evidence collected from appellant‘s Pekin Road Residence based upon his eight and one-half years of experience in law enforcement with the Warren County Drug Task Force. He testified that, as a member of the task force, he is involved in surveillance, working with confidential informants, and working undercover to “buy drugs in the Warren County community.”
{¶ 47} Schweitzer demonstrated personal knowledge of these observed facts that assisted the jury in better understanding the meaning and significance of cutting agents and triple beams scales. Therefore, Schweitzer‘s testimony was not prejudicially speculative and trial counsel was not ineffective in failing to object to said testimony.
{¶ 48} Nevertheless, even if a portion of Schweitzer‘s testimony was speculative, and therefore should not have been admitted, appellant has failed to demonstrate how the admission of such evidence was prejudicial, as the outcome of the trial would have remained the same based upon the overwhelming evidence against him.
{¶ 49} At trial, the state presented eyewitness testimony from Schweitzer that he personally made four purchases of crack cocaine from appellant. Schweitzer further testified that he observed, visibly and aurally, the sale of crack cocaine from appellant to a confidential informant. The state presented additional evidence from Dunn, the forensic
{¶ 50} In addition, Special Agent Ausbacher testified that while appellant‘s residence was being searched on December 27, 2004, appellant told Ausbacher that he had been selling cocaine for the past 11 years, that there was cocaine in the Pekin Road Residence, and that the approximately $40,000 that was found in the safe in the bedroom closet was made by appellant “from selling cocaine.” Appellant also told Ausbacher that all of the vehicles at the Pekin Road Residence were purchased with money made selling cocaine.
{¶ 51} Based upon the overwhelming evidence against appellant presented at trial, our confidence in the outcome of the trial is not undermined. We find that it is not reasonably probable that, had trial counsel objected to Schweitzer‘s statements, the result of appellant‘s jury trial would have been different.
{¶ 52} Therefore, based upon the foregoing, we find that trial counsel was not ineffective in the representation of appellant and appellant was not prejudiced by said representation. Accordingly, appellant‘s first assignment of error is overruled.
{¶ 53} Assignment of Error No. 2:
{¶ 54} THE TRIAL COURT ERRED IN OVERRULING APPELLANT‘S MOTION FOR CRIMINAL RULE 29 ACQUITTAL WHEN VENUE WAS NOT ESTABLISHED AS TO COUNTS ONE (1) THROUGH FIVE (5) OF THE INDICTMENT.
{¶ 55} In his second assignment of error, appellant argues that the trial court erred in overruling his
{¶ 56} “When reviewing the trial court‘s denial of a motion for acquittal under
{¶ 57} “Venue commonly refers to the appropriate place of trial for a criminal prosecution within a state.” State v. Stone, 12th Dist. No. CA2007-11-132, 2008-Ohio-5671, ¶ 16, citing State v. Meridy, 12th Dist. No. CA2003-11-091, 2005-Ohio-241, ¶ 12. “Venue is not a material element of the offense, yet it is a fact that must be proved beyond a reasonable doubt, unless it is waived by the defendant.” Birt at ¶ 27, citing State v. Headley, 6 Ohio St.3d 475, 477 (1983). “[I]t is not essential that the venue of the crime be proved in express terms, provided it be established by all the facts and circumstances, beyond a reasonable doubt, that the crime was committed in the county and state as alleged in the affidavit.” Id. at ¶ 27, citing State v. Behanan, 12th Dist. No. CA2009-10-266, 2010-Ohio-4403, ¶ 19; State v. Chintalapalli, 88 Ohio St.3d 43, 45 (2000).
{¶ 58} As to Counts One through Five, appellant argues the state failed to prove that venue was proper in Warren County because “all that was offered by Detective Schweitzer at trial, as to the location of the alleged drug transactions, was, at most, a street address.”
{¶ 59} As to Counts One, Two, and Four, Schweitzer testified that he conducted controlled buys with appellant at the Robinson Vail Residence. When asked if the “Robinson Vail address that there were some transactions at” was located “in Warren County, Ohio,” Schweitzer replied “Yes, it is.” Therefore, venue was established for Counts One, Two, and Four in Warren County, Ohio.
{¶ 60} With respect to Count Three, Schweitzer testified that the confidential informant
{¶ 61} As to Count Five, Schweitzer testified that he conducted a controlled buy with appellant on Manchester Road just off of Robinson Vail Road. Specifically, he stated that the transaction occurred in his vehicle when he was parked on Manchester Road, “in the main stretch of a road in Warren County.” As Schweitzer testified that he turned off of Robinson Vail Road onto Manchester Road, and that Robinson Vail Road is located in Warren County, Ohio, the evidence is sufficient to establish that Manchester Road is also located in Warren County, Ohio. Therefore, venue was established for Count Five in Warren County, Ohio.
{¶ 62} Thus, the trial court did not err in overruling appellant‘s
{¶ 63} Assignment of Error No. 3:
{¶ 64} THE TRIAL COURT ERRED IN IMPOSING A SENTENCE ON COUNT ONE (1) THAT EXCEEDED THE APPLICABLE SENTENCING RANGE FOR THE CONVICTION.
{¶ 65} In his third assignment of error, appellant contends the trial court improperly sentenced appellant on Count One of the indictment to a sentence that was beyond the applicable statutory sentencing range. Specifically, appellant argues that 2011 Am.Sub.H.B. No. 86 (“H.B. 86“), which went into effect after appellant was convicted but prior to appellant‘s sentence, mandates that appellant could only receive a maximum sentence of 36 months in prison, as the charge in Count One would have dropped to a felony of the third
{¶ 66} In 2005, appellant was indicted and convicted of Count One, trafficking in crack cocaine, in violation of
{¶ 67} The amendments to
{¶ 68} Appellant contends the trial court erred by failing to impose a reduced sentence consistent with the reduced penalties enacted by H.B. 86. He argues that, because he was sentenced after the effective date of H.B. 86,
The amendments to sections ***
2925.03 *** of the Revised Code *** that are made in this act apply to a person who commits an offense involving *** cocaine *** on or after the effective date of this act [September 30, 2011] and to a person to whom division (B) of section1.58 of the Revised Code makes the amendments applicable.
{¶ 70}
{¶ 71} Appellant committed the offense of trafficking in drugs specified in Count One on November 16, 2004. H.B. 86 went into effect on September 30, 2011. The trial court sentenced appellant on May 30, 2012. Because appellant committed the offense prior to H.B. 86‘s effective date, but was sentenced after the effective date, he would normally be entitled to the reduced penalty for a third-degree felony based upon
{¶ 72} Nevertheless, in good conscious, we cannot apply H.B. 86 to Count One, as such an application would give appellant the benefit of a lower sentence—at least five years lower—due to his conduct of fleeing and absconding for seven years. To allow appellant to flee from the law for seven years only to return and receive a more beneficial sentence due to a change in the law is absurd and would promote this type of conduct in other defendants.
{¶ 73} The Eighth Appellate District addressed the tolling of the statute of limitations for the filing of a criminal indictment when the accused purposely avoids prosecution. State v. Bess, 126 Ohio St.3d 350, 2010-Ohio-3292, ¶ 1. In Bess, upon learning about an investigation against him for sexually abusing his wife‘s minor daughter, the defendant “began making plans to change his identity and leave town.” Id. at ¶ 5. The defendant fled town in 1989 but was still indicted by a grand jury in the same year. Id. at ¶ 7. A capias was eventually issued for his arrest, but the defendant “successfully concealed his identity and his whereabouts until March 5, 2007,” when he was arrested approximately 18 years after being indicted. Id. After the defendant was apprehended, he was also indicted for sexually abusing his wife‘s minor son. Id. at ¶ 8-9. The defendant sought to dismiss the indictment against the son, arguing that the six-year statute of limitations had expired. Id. at ¶ 11. The case was eventually appealed to the Ohio Supreme Court. In interpreting the General Assembly‘s intent behind
In this case, to allow defendant to reopen his suppression motion on the ground of newly-discovered evidence would be to reward him for not returning to court to be sentenced. If defendant had returned to court in 1993 and been sentenced, the arresting officers’ corrupt conduct would have been discovered too late to provide a legal basis *** to reopen his suppression hearing. The only reason that defendant had not been sentenced on his guilty plea when the District Attorney learned about the officers’ corrupt conduct was because he had delayed his sentencing by absconding.
{¶ 75} As “public policy prohibits a defendant from benefitting from his own misconduct,” and in order to “avoid the unjust result of rewarding [a] defendant for having
{¶ 76} Here, the General Assembly provided that the benefit of a reduced sentence will apply to those defendants who committed the offense prior to the effective date of H.B. 86 but were sentenced afterward. Yet, just as in Bess and Ortega, the only reason appellant could receive the benefit of a sentencing reduction was due to his absconding. Appellant would have no right to seek the benefits of H.B. 86 had he been sentenced in 2005 when he was convicted.
{¶ 77} To allow H.B. 86 to apply to an offender who avoids sentencing until after the effective date would be “illogical” and allow an offender to “benefit from absconding.” We agree with the Ortega court that public policy prohibits a defendant from “benefiting from his own misconduct.”9 Therefore, in order to “avoid the unjust result” of rewarding appellant for absconding by reducing his sentence on Count One from eight years to a maximum of 36 months, we find that H.B. 86 cannot, and does not, apply in this case.
{¶ 78} Accordingly, appellant‘s third and final assignment of error is overruled.
{¶ 79} Judgment affirmed.
HENDRICKSON, P.J., and PIPER, J., concur.
Notes
Other crimes, wrongs or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. In criminal cases, the proponent of evidence to be offered under this rule shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.