STATE OF OHIO v. CHARLES L. SHELBY
Case No. 15CA20
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT LAWRENCE COUNTY
Released: 08/31/16
2016-Ohio-5721
APPEARANCES:
Gene Meadows, Portsmouth, Ohio, for Appellant.
Brighаm M. Anderson, Lawrence County Prosecuting Attorney, and Robert C. Anderson, Assistant Prosecuting Attorney, Ironton, Ohio, for Appellee.
McFarland, J.
{¶ 1} Charles Shelby appeals his felony convictions entered by the Lawrence County Court of Common Pleas, after he was found guilty by a jury of aggravated trafficking in drugs and tampering with evidence. On appeal, Appellant contends that 1) the evidence presented at trial is insufficient to support his conviction and also that his conviction is against the manifest weight of the evidence; 2) the State of Ohio failed to bring him to trial within the time required by
{¶ 2} Having found no merit to the assignments of error raised by Appellant and specifically finding that he was brought to trial within speedy trial limits and that his convictions were supported by sufficient evidence and were not against the manifest weight of the evidence, his assignments of error are overruled. Accordingly, the judgment of the trial court is affirmed.
FACTS
{¶ 3} Appellant was arrested on March 20, 2015 and was subsequently indicted for one count of aggravated trafficking in drugs, a first degree felony in violation of
{¶ 4} Law enforcement responded to the incident and went to Appellant‘s hotel room accompanied by hotel staff. Officers Wilson and Lawson knocked on Appellant‘s door. Appellant answered the door, denied that he had drugs in the room and granted the officers permission to search the room. During the search, Captain Bowman arrived on the scene. When officers located marijuana in Appellant‘s coat pocket, Bowman gave Appellant a verbal Miranda warning. The search continued and officers found several small jeweler‘s bags, four cell phones, approximately $2,650.00 in cash, and a marijuana blunt in Appellant‘s luggage. Also, during the search, the hotel manager informed Captain Bowman that a maintenance man had discovered a bag with what appeared to be drugs in the trash can outside the hotel and that Ashley Miller, a hotel employee, reported she saw Appellant go down the stairs and exit the hotel briefly and then return right after Appellant‘s argument with his girlfriend and just before law enforcement arrived.
{¶ 5} Captain Bowman retrieved the drugs from the trash can, which consisted of 159 pills. Upon being confronted, Appellant initially denied
{¶ 6} In his recorded statement, Appellant stated that he was from Keego Harbor, Michigan, which is about a forty minute drive from Detroit. He admitted that he had received approximately 400 oxycodone pills from his girlfriend‘s mother, Bonita Butler, the previous Monday, that he had distributed about 200 of them and had about 200 of them left. He stated that the pills were in quantities of 15 mg. and 30 mg. He stated that he had most recently delivered a portion of the pills to the Thibodaux‘s, who lived “in the projects.” He explained that he would typically drop pills off to Bonita‘s customers and then later pick up money to take to Bonita. He also explained that if he made sales to other individuals he was paid more money. He stated that in exchange for doing this, Bonita took care of him and his girlfriend and provided them with two oxycodone pills per day. He further
{¶ 7} Appellant was arrested and was held in jail on these charges from the date of his arrest on March 20, 2015 until he was brought to trial on August 6, 2015. During this time, Appellant filed several pleadings, including a request for discovery, a request for a bill of particulars, a motion to suppress, and also a motion to dismiss based upon speedy trial grounds. Appellant‘s motion to suppress alleged that he was intoxicated or under the influence of a controlled substance at the time he рrovided statements to law enforcement and that as a result, the statements were involuntary and inadmissible at trial. Detective Aaron Bollinger, the officer who obtained Appellant‘s recorded statement as well Appellant‘s written waiver of his Miranda rights, testified at the suppression hearing. The trial court ultimately denied Appellant‘s motion to suppress as well as his pretrial motion to dismiss and the matter proceeded to trial.
{¶ 8} At trial, the State introduced several witnesses, including: Ironton Police Officer and Lawrence County Drug Task Force member, Steven Wilson; Ironton Police Captain and Lawrence County Drug Task Force member, Chris Bowman; Holiday Inn Express employee, Ashley Miller; Lawrence County Engineer, Paul Rubado; Ironton Catholic Schools,
{¶ 9} Officer Wilson and Captain Bowman testified regarding their involvement in the search of Appellant‘s hotel room and obtaining Appellant‘s recorded statement. Ashley Miller testified that she saw Appellant exit the hotel and then return right after the argument with his girlfriend, and just before law enforcement arrived. Paul Rubado and Chris Monty collectively testified that the Holiday Inn Express and specifically the room of the hotel in which Appellant was staying was located within 1000 feet of St. Lawrence/St. Joseph Catholic School, which is an accredited community school established under Chapter 3314 of the Ohio Revised Codе. Megan Snyder testified regarding the testing she performed on the 159 pills submitted to BCI, stating that all of the pills were confirmed to be either 15 or 30 mg. pills of oxycodone. Additionally, Appellant‘s recorded statement was played for the jury as part of the State‘s case.
{¶ 10} Appellant testified in his own defense. He testified that he was intoxicated and had used crack cocaine at 3:00 a.m. the night before providing a statement. He further essentially testified that the pills were not his, but that he cooperated with Captain Bowman to come up with a story that would convince Detective Bollinger that he could provide intelligence that would allow him to be used as confidential informant. He testified that the information contained in his recorded statement did not reflect the truth, that he did not place anything in the trash at the hotel, that he had never sold drugs and did not intend to sell drugs, and that he did not understand the Miranda waiver that he signed. On cross examination, Appellant denied having placed calls from the jail to Bonita Butler and Ashley Thibodaux. As a result, the State then presented Perry Adkins as a rebuttal witness. As part of Adkins’ testimony, recorded jail calls between Appellant, Butler and Thibodaux were played for the jury. The calls with Thibodaux, while somewhat vague, included references to getting “that money” and asking what to do with it. Appellant also states in both calls that he will be going away for a long time.
{¶ 11} After hearing the evidence and the testimony presented at trial, the jury found Appellant guilty of both counts as contained in the indictment. Appellant was convicted and sentenced by the trial court to a
ASSIGNMENTS OF ERROR
- “I. THE EVIDENCE PRESENTED AT TRIAL IS INSUFFICIENT TO SUPPORT DEFENDANT‘S CONVIDITON [SIC], WHICH CONVICTION IS MANIFESTLY AGAINST THE WEIGHT OF THE EVIDENCE AND MUST BE REVERSED.
- II. THE STATE OF OHIO FAILED TO BERING [SIC] THE DEFENDANT-APPELLANT TO TRIAL WITHIN THE TIME REQUIRED BY RC 2945.71 [SIC] AND THEREFORE THE DEFENDANT IS ENTITLED TO A DISMISSAL OF ALL COUTNS [SIC] OF THE INDICTMENT
- III. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT WHEN THE TRIAL COURT ALLOWED THE STATEMENT MADE BY THE DEFENDANT-APPELLANT TO BE USED AGAINST THE DEFENDANT-APPELLANT DUE TO THE FACT THAT SAID STATEMENT WAS NOT VOLUNTARILY GIVEN BY THE DEFENDANT-APPELLANT.
- IV. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT AND ABUSED THE TRIAL COURT‘S DISCRETION WHEN THE TRIAL COURT ALLOWED THE STATE OF OHIO TO INTRODUCE REBUTTAL EVEIDENCE [SIC] IN ACCORDANCE WITH CRIMINAL RULE 16 THEREBY DEPRIVING THE DEFENDANT TO HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL.”
{¶ 12} For ease of analysis, we address Appellant‘s assignments of error out of order. In his third assignment of error, Appellant contends that the trial court erred to his prejudice when it allowed Appellant‘s statement to be used against him, arguing that the statement was not voluntarily given. This particular argument was the subject of a pre-trial motion to suppress, which was denied by the trial court. Thus, Appellant essentially challenges the trial court‘s denial of his motion to suppress his statement.
{¶ 13} “Appellate review of a motion to suppress presents a mixed question of law and fact. When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8; citing State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). “Consequently, an appellate court must accept the trial court‘s findings of fact if they are supported by competent, credible evidence.” Id., citing State v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982). “Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard.” Burnside at ¶ 8; citing State v. McNamara, 124 Ohio App.3d 706, 707 N.E.2d 539 (4th Dist.1997). See also State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, ¶ 100. Preliminarily, “[w]here factual issues are involved in determining a motion, the court shall state its essential findings on the record.”
{¶ 14} Prior to initiating a custodial interrogation, law enforcement must “inform an accused ‘that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desirеs.’ ” State v. Ulery, 4th Dist. Athens No. 07CA28, 2008-Ohio-2452, ¶ 7; quoting Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602 (1966). Neither party in this case argues that Appellant was not subject to a custodial interrogation or that Miranda warnings were not provided to him. Thus, no further analysis is required on this issue.
{¶ 15} To use a statement made by the accused during a custodial interrogation, the prosecution must show: “(1) the accused, prior to any interrogation, was given the Miranda warnings; (2) at the receipt of the warnings, or thereafter, the accused made ‘an express statement’ that he desired to waive his Miranda constitutional rights; (3) the accused effected a voluntary, knowing, and intelligent waiver of those rights.” State v. Edwards, 49 Ohio St.2d 31, 38, 358 N.E.2d 1051 (1976) (overruled on other grounds); citing Miranda. However, contrary to the second prong in Edwards, the Supreme Court recently held that the prosecution “does not need to show that a waiver of Miranda rights was express. An ‘implicit waiver’ of the ‘right to remain silent’ is sufficient to admit a suspect‘s statement into evidence.” Berghuis v. Thompkins, 560 U.S. 370, 130 S.Ct. 2250, 2261 (2010) (Citation omitted). “Where the prosecution shows that a Mirandа warning was given and that it was understood by the accused, an accused‘s uncoerced statement establishes an implied waiver of the right to remain silent.” Id. at 2262. That is because “the law can presume that an individual who, with a full understanding of his or her rights, acts in a manner inconsistent with their exercise has made a deliberate choice to relinquish the protection those rights afford.” Id.
{¶ 16} In the case presently before us, Appellant challenges the voluntariness of his statement, which was essentially a confession. Voluntariness of a confession and compliance with Miranda are analytically two separate inquires. Dickerson v. United States, 530 U.S. 428, 120 S.Ct. 2326, (2000). “[E]ven when Miranda warnings are not required, a confession may be involuntary if on the totality of the circumstances the
{¶ 17} Here, the record reflects that Appеllant was provided Miranda warnings not once, but twice. He was verbally advised in his hotel room by Captain Chris Bowman during the initial search and was again advised orally and in writing by Sergeant Aaron Bollinger while he was being questioned in the police cruiser. Again, Appellant does not argue on appeal that he was not properly Mirandized. Instead, Appellant‘s motion to suppress was based upon his contention that he was intoxicated or under the influence of a controlled substance at the time he made his statements, thus rendering his statements involuntary.
{¶ 18} A review of the record reflects that the State presented testimony by Sergeant Bollinger at the suppression hearing. Sergeant Bollinger testified regarding the “Miranda form” that he completed and advised Appellant of before giving his statement and the signed form was admitted into evidence. When asked if Appellant appeared to be intoxicated at the time he gave his statement, Sergeant Bollinger testified “No sir. Absolutely not.” He testified that he did not ask him if he was intoxicated
{¶ 19} The record before us further reflects that the trial court listened to Appellant‘s recorded statement prior to issuing its decision on the suppression motion. In its decision, the trial court stated that it listened to the recorded statement “for the purpose of listening to the Defendant‘s voice, diction, and any other evidence of being under the influence of a controlled substance at the time the statement was being recorded.” Ultimately, the trial court detected no evidence that would have interfered with Appellant‘s voluntary, knowing and intelligent waiver of his Miranda Rights and agreement to give a statement, and denied Appellant‘s motion.
{¶ 20} Based upon the record before us, and based upon the totality of the circumstances, we cannot conclude that the trial court erred in denying Appellant‘s motion to suppress. As this Court has previously noted, “a trial court must consider drug influence when assessing voluntariness.” State v. Fox, 4th Dist. Washington No. 03CA63, 2004-Ohio-6972, ¶ 18. However, Appellant‘s argument is based upon factual issues presented to the trial court and the trial court clearly resolved this factual question in favor of the State. Id. We find no error in that determination.
{¶ 21} We further note Appellant argues, for the first time on appeal, that his statements were not voluntary because he decided to speak to law enforcement as a result of promises of leniency, or a promise to be used as a confidential informant. First, we note that Appеllant‘s motion to suppress claimed only that his statement was involuntary due to his intoxication or being under the influence. The argument that he had been promised leniency was not included in his motion. Second, when the State introduced Appellant‘s statement at trial, Appellant objected on the same grounds set forth in his motion to suppress. The trial court noted it had already ruled on those specific grounds, denied Appellant‘s motion, and then granted Appellant a continuing objection. Thus, Appellant did not move to suppress his statement on these grounds and did not object to the use of his statement on these grounds at trial.
{¶ 22} Having failed to raise the issue in the trial court, Appellant has forfeited the right to raise it on appeal. State v. Merryman, 4th Dist. Athens No. 12CA28, 2013-Ohio-4810, ¶ 43; citing State v. Marcinko, 4th Dist. Washington No. 06CA51, 2007-Ohio-1166, ¶ 23; see also State v. Shindler, 70 Ohio St.3d 54, 58, 636 N.E.2d 319 (1994) (“By requiring the defendant to state with particularity the legal and factual issues to be resolved, the prosecutor and court are placed on notice of those issues to be heard and
{¶ 23} Accordingly, because we find no error with regard to the trial court‘s denial of Appellant‘s motion to suppress his statement, Appellant‘s third assignment of error is overruled.
ASSIGNMENT OF ERROR II
{¶ 24} In his second assignment of error, Appellant contends that the trial court erred in denying his motion to dismiss based upon speedy trial grounds. Appellant argues that the State failed to bring him to trial within
{¶ 25} Appellate review of a trial court‘s decision on a motion to dismiss for a speedy-trial violation involves a mixed question of law and fact. State v. Sinkovitz, 2014-Ohio-4492, 20 N.E.3d 1206, ¶ 6 (4th Dist.). We defer to the trial court‘s factual findings if some competent, credible evidence supports them, but we review de novo the court‘s application of the law to those facts. Id.
{¶ 26}
{¶ 27} Here, it appears that Appellant remained incarcerated on the underlying charges from the time of his arrest on March 20, 2015, until he was brought to trial on August 6, 2015. Thus, the triple count provision contained in
{¶ 28} Specificаlly, Appellant filed a request for discovery and request for bill of particulars on April 7, 2015. While the State responded to the request for discovery the very next day, on April 8, 2015, it did not respond to Appellant‘s request for a bill of particulars until July 30, 2015. Under
{¶ 29} Based upon the foregoing, time was tolled against Appellant from the date he filed his request for a bill of particulars until the State filed the bill on July 30, 2015, resulting in 114 days of the 139 days being tolled.1 Finally, we are mindful that a defendant‘s motion to dismiss also tolls the running of the speedy trial statute. State v. Radabaugh at ¶ 13; citing State v. DePue, 96 Ohio App.3d 513, 645 N.E.2d 745 (1994) (stating “the Supreme Court held that the speedy trial time period is tolled upon a defendant‘s motion to dismiss on double jeopardy grounds); citing State v. Broughton, 62 Ohio St.3d 253, 581 N.E.2d 541 (1991); see also
ASSIGNMENT OF ERROR IV
{¶ 31} In his fourth assignment of error, Appellant contends that the trial court erred to his prejudice and abused its discretion when it allowed the State to introduce rebuttal evidence without properly disclosing the evidence in acсordance with Crim.R. 16, thereby depriving him of his constitutional right to a fair trial.
{¶ 32} Crim.R. 16 governs discovery and provides in section (A) that “all parties have a continuing duty to supplement their disclosures.” Under
{¶ 33} Here, the State represents that it did not become aware of the jail calls until the night before the first day of trial. As such and because they did not intend to use the calls in their case-in-chief, the State provided the calls to the defense at the conclusion of the first day of trial, and before Appellant testified the next day. Thus, the record indicates that these calls were newly discovered and Appellant presented no evidence to the contrary. Based upon this record, there is no indication that the State willfully withheld these telephone recordings.
{¶ 34} Further, when previously reviewing a similar scenario, this Court reasoned that because the appellant was the one who made the calls, he knew that the evidence existed and could be used against him. State v. Payton, 4th Dist. Scioto No. 14CA3628, 2015-Ohio-1796, ¶ 11; citing State v. Lewis, 1st Dist. Hamilton Nos. C-840596, C-840607, 1985 WL 8865, *3 (“defendant should have moved for disclosure of the ‘statement;’ he knew of
its existence. [ ] His failure to do so was fatal to his claim of error“). Additionally, in Payton this Court also reasoned that “statements contained in jail phone calls are not statements within the meaning of
{¶ 35} This Court‘s prior reasoning in State v. Payton applies herein and leads us to conclude that the trial court did not err or abuse its discretion in allowing the recorded jail calls to be used as evidence against Appellant. Appellant knew he had placed these calls when he denied having placed them on cross-examination during trial. Even if the State had not produced them at all, Appellant was on notice that they existed. Accordingly, Appellant‘s fourth assignment of error is overruled.
ASSIGNMENT OF ERROR I
{¶ 36} In his first assignment of error, Appellant contends that the evidence presented at trial was insufficient to support his convictions, and that his convictions were against thе manifest weight of the evidence. “When a court reviews a record for sufficiency, ‘[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the
{¶ 37} In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate court must review 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. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997); State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 119. “Althоugh a court of appeals may determine that a judgment is sustained by sufficient evidence, that court may nevertheless conclude that the judgment is against the weight of the evidence.” Thompkins at 387, 678 N.E.2d 541. But the
{¶ 38} Appellant was indicted and found guilty by a jury of aggravated trafficking in drugs and tampering with evidence.
“(A) No person shall knowingly do any of the following:
* * *
(2) Prepare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance or a сontrolled substance analog, when the offender knows or has reasonable cause to believe that the controlled substance or a controlled substance analog is intended for sale or resale by the offender or another person.
* * *
(C) Whoever violates division (A) of this section is guilty of one of the following: (1) If the drug involved in the violation is any compound, mixture, preparation, or substance included in schedule I or schedule II, with the exception of marihuana, cocaine, L.S.D., heroin, hashish, and controlled substance analogs, whoever violates division (A) of this section is guilty of aggravated trafficking in drugs. The penalty for the offense shall be determined as follows:
* * *
(d) Except as otherwise provided in this division, if the amount of the drug involved equals or exceeds five times the bulk amount but is less than fifty times the bulk amount, aggravated trafficking in drugs is a felony of the seсond degree, and the court shall impose as a mandatory prison term one of the prison terms prescribed for a felony of the second degree. If the amount of the drug involved is within that range and if the offense was committed in the vicinity of a school or in the vicinity of a juvenile, aggravated trafficking in drugs is a felony of the first degree, and the court shall impose as a mandatory
prison term one of the prison terms prescribed for a felony of the first degree.”2
{¶ 39} Thus, for the trafficking charge, the State had to prove that Appellant knowingly prepared for shipment, shipped, transported, delivered, prepared for distribution, or distributed a controlled substance or a controlled substance analog, in this case oxycodone, in an amount equaling or exceeding five times the bulk amount but less than fifty times the bulk amount, knowing or having reasonable cаuse to believe that the oxycodone was intended for sale or resale by himself or another person. The State also alleged and therefore had to prove that Appellant‘s acts in drug trafficking were committed in the vicinity of a school.
{¶ 40} Appellant was also convicted of tampering with evidence.
“(A) No person, knowing that an official proceeding or investigation is in progress, or is about to be or likely to be instituted, shall do any of the following:
(1) Alter, destroy, conceal, or remove any record, document, or thing, with purpose to impair its value or availability as evidence in such proceeding or investigation[.]”
As the Supreme Court of Ohio recently held, “[t]here are three elements of this offense: (1) knowledge of an official proceеding or investigation in progress or likely to be instituted, (2) the alteration, destruction, concealment, or removal of the potential evidence, (3) the purpose of impairing the potential evidence‘s availability or value in such proceeding or investigation.” State v. Straley, 139 Ohio St.3d 339, 2014-Ohio-2139, 11 N.E.2d 1175, ¶ 11.
{¶ 41} With regard to both of the crimes for which Appellant was charged, we note that “[a] person acts knowingly, regardless of purpose, when the person is aware that the person‘s conduct will probably cause a certain result or will probably be of a certain nature.” Further, “[a] person has knowledge of circumstances when the person is aware that such circumstances probably exist.”
{¶ 42} “‘Actual possession exists when the circumstances indicate that an individual has or had an item within his immediate physical possession.‘” State v. Kingsland, 177 Ohio App.3d 655, 2008-Ohio-4148, 895 N.E.2d 633, ¶ 13 (4th Dist.); quoting State v. Fry, 4th Dist. Jackson No. 03CA26, 2004-Ohio-5747 ¶ 39. “Constructive possession exists when an individual knowingly exercises dominion and control over an object, even though that object may not be within his immediate physical possession.” State v. Hankerson, 70 Ohio St.2d 87, 434 N.E.2d 1362, syllabus (1982); State v. Brown, 4th Dist. Athens No. 09CA3, 2009-Ohio-5390, ¶ 19. For constructive possession to exist, the State must show that the defendant was conscious of the object‘s presence. Hankerson at 91, 434 N.E.2d 1362; Kingsland at ¶ 13. Both dominion and control, and whether a person was conscious of the object‘s presence may be established through circumstantial evidence. Brown at ¶ 19.
{¶ 44} The record presently before us indicates that law enforcement was called to the hotel in Lawrence County, Ohio, in which Appellant was a guest, after his girlfriend left the room they occupied and reported to hotel staff that she had been assaulted and that Appellant had drugs in the room. When Officers Wilson and Lawson initially arrived they went to Appellant‘s room whereupon Appellant granted them permission to search the room. Appellant initially denied having any narcotics in the room. While the search was being conducted by those officers, Sergeant Bowman arrived on the scene. At this point the officers performing the search located a small baggie of marijuana and Appellant received a verbal Miranda warning from Sergeant Bowman. Officers proceeded to locate several small jewelers’ bags, which they later testified are used to re-package narcotics for sale, four
{¶ 45} Further, during the search of the hotel room, Sergeant Bowman testified that the hotel manager motioned him into the hallway and told him that a worker had reported that she saw Appellant exit the hotel down a back staircase just prior to police arriving and that the maintenance man had found narcotics in the outside trash can where Appellant had exited. Sergeant Bowman left the room and retrieved a baggie of pills from the trash can. When Bowman confronted Appellant about finding the pills in the trash Appellant initially denied they were his. Bowman then told Appellant that he watched Appellant on video as he put the pills in the trash, at which point Appellant admitted the pills were his. Appellant told Bowman that he thought the police would be coming after his girlfriend yelled out in the hallway and he wanted to get rid of the pills, so he “stashed” them in the trash can. The pills were later tested by BCI and determined to consist of 159 oxycodone pills in amounts of 30 mg. and 15 mg., totaling approximately 3,825 mg., which is more than five times the bulk amount and have a street value of approximately $7,000.00.
{¶ 46} Sergeant Bowman testified that in an attempt to gain intelligence from Appellant, Officer Wilson transported Appellant to another
{¶ 47} We have already determined above that Appellant‘s statement or confession given to law enforcement on the day of his arrest was voluntary and admissible as evidence against him. We further determined that subsequent calls made from the jail by Appellant to both Bonita Butler
{¶ 48} Appellant argues, with respect to the drug trafficking charge, “[t]he evidence below simply does not support any conviction for trafficking or possession of drugs[,]” and therefore, “the State of Ohio must prove constructive possession in order for the Defendant-Appellant to traffic in drugs.” We disagree. Initially, we note that Appellant was not charged or convicted of possession of drugs. However, understanding that possession is implicit in trafficking, we acknowledge Appellant‘s argument. Appellant seems to base this argument on the premise that his confession was involuntary and inadmissible. Because we have already determined that Appellant‘s recorded statement, which was essentially a confession, was voluntary and admissible, we reject Appellant‘s argument. By Appellant‘s own account he received 400 pills to distributе for sale, he had distributed approximately 200 of them and still had in his possession approximately 200 of them. He also admitted that the pills found in the trash were his. Thus, there is evidence that Appellant had actual possession of the drugs at issue.
{¶ 50} After reviewing the record, weighing the evidence and all reasonable inferences, and considering the credibility of witnesses, we find that the jury did not clearly lose its way and create such a manifest miscarriage of justice that we must reverse Appellant‘s convictions. Moreover, “‘[w]hen an appellate court concludes that the weight of the evidence supports a defendant‘s conviction, this conclusion necessarily also includes a finding that sufficient evidence supports the conviction.‘” State v. Crocker, 2015-Ohio-2528, 38 N.E.3d 369, ¶ 29 (4th Dist.); citing State v. Adkins, 4th Dist. Lawrence No. 13CA17, 2014-Ohio-3389,
JUDGMENT AFFIRMED.
{¶ 51} I concur in judgment only in the majority‘s opinion on Shelby‘s second and fourth assignments of error, concur in judgment and opinion on the Shelby‘s first and third assignments of error, and dissent from the failure to require the trial court to correct the clerical error in its sentencing entry.
{¶ 52} Shelby‘s second assignment of error asserts that the state failed to bring him to trial within the time required by
{¶ 53} The majority concludes that the state‘s 114-day delay in responding to Shelby‘s request for a bill of particulars tolled the speedy-trial clock. This ignores the requirement that any delay in responding to the defendant‘s request be a reasonable time, which is often interpreted to mean
{¶ 54} Nevertheless, I agree with the state‘s alternate contention that Shelby‘s motion to suppress tolled the speedy-trial because it necessitated the continuance of the original trial date so that when combined with a reasonable 30-day period to respond to the request for a bill of particulars, Shelby was tried within the 90-day speedy-trial period. Therefore, I concur in overruling Shelby‘s second assignment of error, albeit for different reasons than that expressed in the majority opinion.
{¶ 55} In his fourth assignment of error Shelby contends that the trial court erred when it allowed the state to introduce rebuttal evidence in
{¶ 56} I would go no further in the analysis of Shelby‘s fourth assignment of error, i.e., I would not address the additional question of whether the statements are discoverable under
{¶ 57} Finally, as the majority opinion notes in footnote 2, the trial court erred by stating that Shelby was convicted of trafficking in drugs in violation of
It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Lawrence County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Abele, J.: Concurs in Judgment and Opinion.
Harsha, J.: Concurs in Part and Dissents in Part with Opinion.
For the Court,
BY: Matthew W. McFarland, Judge
NOTICE TO COUNSEL: Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.