State v. SheldonState v. Sheldon
David P. Fornshell, Warren County Prosecuting Attorney, and Kirsten A. Brandt, Assistant Prosecuting Attorney, for appellee.
PIPER, J.
{¶ 1} In April 2022, appellant, Brandi Sheldon, was indicted on multiple counts after a search of her vehicle revealed that she was in possession of a large quantity of methamphetamine and other instrumentalities indicating drug trafficking. The indictment included three charges related to drugs and one charge involving two concealed knives in Sheldon‘s possession which she conveyed into the county jail.
{¶ 2} On March 13, 2022, at approximately 12:40 a.m., Officer Darcie Kunka observed a suspicious vehicle in an empty church parking lot. When it reentered the roadway Officer Kunka observed that the vehicle had an excessively loud exhaust system. Therefore, Officer Kunka initiated a traffic stop based upon an equipment violation.
{¶ 3} Sheldon was the sole occupant of the vehicle. When Officer Kunka approached, Sheldon opened her door and told Officer Kunka that the window was not operational. However, when Sheldon opened the door, Officer Kunka smelled a strong odor of raw marijuana. Officer Kunka asked Sheldon if she had a medical marijuana card or hemp inside the vehicle. Sheldon responded in the negative. Officer Kunka noticed that Sheldon had bloodshot eyes and appeared excessively nervous. In addition, Officer Kunka observed marijuana “shake” plainly visible on the floor of the vehicle.
{¶ 4} Officer Kunka ordered Sheldon out of the vehicle and conducted a brief weapons pat-down. Another officer arrived on scene to assist. Officer Kunka then searched Sheldon‘s vehicle. On the passenger side, Officer Kunka found a bag containing a wallet with credit cards and identification cards belonging to Sheldon. The same bag also held, among other things, a digital scale, plastic baggies, $359 in cash, and an unlocked black magnetic bоx. The magnetic box contained a crystal-like substance and white powder, which Officer Kunka identified as a large quantity of methamphetamine.
{¶ 5} Sheldon was arrested and read her Miranda rights. While being transported to the Warren County Jail, Sheldon told Officer Kunka that she had additional methamphetamine in her bra. She stated it was “different” from the methamphetamine found in her vehicle. Officer Kunka asked Sheldon whether she had any аdditional contraband, which Sheldon denied. Officer Kunka testified that she provided Sheldon with ample opportunity to disclose any other contraband and warned her that taking items into
{¶ 6} The methamphetamine was sent to the Miami Valley Crime Lab where it was tested and weighed. The results of the testing confirmed that both the substance found in the vehicle and the substance found in Sheldon‘s bra were methamphetamine and had a combined weight of 42.03 grams.
{¶ 7} On April 11, 2022, Sheldon was indicted on four counts:
Count 1: Aggravated trafficking in drugs in violation of
R.C. 2925.03(A)(2) , a second-degree felony,Count 2: Aggravated possession of drugs in violation of
R.C. 2925.11(A) , a second-degree felony,Count 3: Illegal conveyance of weaрons onto the grounds of a government facility in violation of
R.C. 2921.36(A)(1) , a third-degree felony, andCount 4: Illegal use of drug paraphernalia in violation of
R.C. 2925.14(C)(1) , a fourth-degree misdemeanor.
Sheldon pled not guilty. She later filed a motion to suppress, which the trial court denied.
{¶ 8} The case proceeded to a jury trial beginning on November 21, 2022. Sheldon was found guilty as charged and sentenced to a mandatory prison term of five-to-seven-and-one-half years in prison. Sheldon timely appeals her conviсtion, raising four assignments of error for review.
Appeal
{¶ 9} Assignment of Error No. 1:
{¶ 10} THE COURT ERRED WHEN IT OVERRULED THE DEFENSE‘S MOTION TO SUPPRESS.
{¶ 11} In her first assignment of error, Sheldon argues the trial court erred by denying
{¶ 12} When reviewing a trial court‘s decision on a motion to suppress, this court accepts the trial court‘s findings of fact if they are supported by competent, credible evidence. State v. Lynn, 12th Dist. Butler Nos. CA2017-08-129 and CA2017-08-132, 2018-Ohio-3335, ¶ 15. “An appellate court, however, independently reviews the trial court‘s legal conclusions based on those facts and determines, without deference to the trial court‘s decision, whether as a matter of law, the facts satisfy the appropriate legal standard.” State v. Cochran, 12th Dist. Preble No. CA2006-10-023, 2007-Ohio-3353, ¶ 12.
{¶ 13} Sheldon does not dispute the validity of the initial traffic stop but makes two general arguments that her motion to suppress should have been granted. She first argues that her vehicle was searched without a warrant and without sufficient probable cause. Further, she maintains the statements she made to law enforcement and the evidence recovered following her arrest should have been suppressed.
Vehicle Search
{¶ 14} We begin with the search of the vehicle. Sheldon argues that her motion to suppress should have been granted because law enforcement lacked probable cause to conduct a warrantless search. “In general, ‘[t]he Fourth Amendmеnt of the United States Constitution, applied to the states through the Fourteenth Amendment, protects persons against unreasonable searches and seizures.‘” State v. Richardson, 10th Dist. Franklin No. 15AP-870, 2016-Ohio-5801, ¶ 18, quoting State v. Jones, 9th Dist. Lorain No. 12CA010270, 2013-Ohio-2375, ¶ 8. For a search or seizure to be reasonable, it must be based on
{¶ 15} One of the exceptions to the Fourth Amendment mandates is the automobile exception. State v. Welch, 18 Ohio St.3d 88, 91 (1985). Under the automobile exception, a warrantless search of a lawfully stopped automobile is not unreasonable within the meaning of the Fourth Amendment when law enforcement has probable cause to believe the vehicle contains contraband and exigent circumstances nеcessitate a search or seizure. Id. at 91; State v. Young, 12th Dist. Warren No. CA2011-06-066, 2012-Ohio-3131, ¶ 34.
{¶ 16} On appeal, Sheldon does not discuss the automobile exception to the warrant requirement and fails to address several critical facts. Sheldon‘s analysis does not include a discussion of the fact that Officer Kunka smelled raw marijuana when Sheldon opened her door and makes only passing reference to the faсt that Officer Kunka actually observed marijuana in the vehicle.1 Nevertheless, Sheldon argues that she was cooperative when Officer Kunka pulled her over and that once she provided her license and insurance “the officer should have issued an equipment violation citation and moved on.”
{¶ 17} Following review, we find Sheldon‘s arguments are without merit. The supreme court hаs held that the smell of marijuana alone by an officer experienced in smelling it is sufficient probable cause to search a vehicle. State v. Moore, 90 Ohio St.3d 47, 50-51 (2000); State v. Lynn, 12th Dist. Butler Nos. CA2017-08-129 and CA2017-08-132, 2018-Ohio-3335, ¶ 20. The evidence in this case was even stronger than the facts before the supreme court in Moore, as Officer Kunka both smelled marijuana and observed it in plain view. State v. Owensby, 12th Dist. Butler No. CA2021-08-092, 2022-Ohio-1702,
Statements Made and Evidence Taken Following Arrest
{¶ 18} Sheldon next argues that the evidence recovered following her arrest and the statements she made to Officer Kunka should have been suppressed. As noted above, after she arrested Sheldon, Officer Kunka provided Sheldon with her Miranda rights and placed her in the cruiser. On the way to Jail, Sheldon volunteered that she had additional methamphetamine in her bra to Officer Kunka. Officer Kunka then asked Sheldon if she had anything else in her possession and warned her that taking any other items of contraband into the jail may subject her to additional penalties. Sheldon said she had “just the meth.”
{¶ 19} Sheldоn provides no persuasive authority to support her claims that the statements she made should be suppressed. She claims to have had a right to counsel and submits that oral statements “obtained by law enforcement in violation of the guarantees of the Fifth, Sixth, and Fourteenth Amendments” are inadmissible in court proceedings. However, Sheldon does not dispute that Officer Kunka prоvided her with her
{¶ 20} Notwithstanding, Sheldon then generally suggests that the statements should have been suppressed because the search of her vehicle was improper and therefore “any such statement made or subsequent material recovered (the drugs and knives in her bra) are all fruit of the proverbial poisonous tree.” However, Sheldon fails to apply the facts and circumstances in any convincing way and further fails to articulate any persuasive authority supporting her conclusions.
{¶ 21} Following rеview, we find the trial court did not err by denying Sheldon‘s motion to suppress. The evidence from the stop and search, and subsequent statements, were permissible at trial. The evidence submitted during the suppression hearing is that after Officer Kunka provided Sheldon with her Miranda rights, Sheldon provided voluntary statements about the methamphetamine in her bra and that she had nothing else in her possession. All asрects of the stop and search were permissible and any statement Sheldon provided was not “fruit of the poisonous tree.” There is simply no constitutional violation, as Sheldon was permitted to waive any right against self-incrimination and make a statement. State v. Wesson, 137 Ohio St.3d 309, 2013-Ohio-4575, ¶ 34. Sheldon has not established any constitutional infirmity supporting suppression. Sheldon‘s first assignment of error is overruled.
{¶ 23} THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT-APPELLANT AS THERE WAS INSUFFICIENT EVIDENCE TO CONVICT.
{¶ 24} Assignment of Error No. 3:
{¶ 25} THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT-APPELLANT BECAUSE THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 26} Sheldon‘s second and third assignments of error allege her convictions are not supported by sufficient evidence and are against the manifest weight of the evidence. Sheldon does not contest the guilty finding on Count 2 involving the charge of possession of methamphetamine. However, she argues that Counts 1 and 4 for drug trafficking and the possession of drug paraphernalia are not supported by evidence. She further argues that Count 3 for illegally conveying weapons into the grounds of a detention facility is unsupported.
{¶ 27} The concepts of sufficiency of the evidence and weight of the evidence are legally distinct. State v. Wright, 12th Dist. Butler No. CA2012-08-152, 2014-Ohio-985, ¶ 10. Nonetheless, as this court has observed, a finding that a conviction is supported by the manifest weight of the evidence is also dispositive of thе issue of sufficiency. State v. Jones, 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150, ¶ 19. “Because sufficiency is required to take a case to the jury, a finding that a conviction is supported by the weight of the evidence must necessarily include a finding of sufficiency.” State v. Hart, 12th Dist. Brown No. CA2011-03-008, 2012-Ohio-1896, ¶ 43.
{¶ 28} A manifest weight challenge scrutinizes the proclivity of the greater amount of credible evidence, offered at a trial, to support one side of the issue over another. State v. Barnett, 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, ¶ 14. In assessing whether
Count 1 and Count 4 Trafficking and Paraphernalia Charges
{¶ 29} The trafficking in drugs statute provides that “[n]o person shall knowingly * * * [p]repare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance or controlled substance analog, when the offender knows or has reasonable cause to believe that the controlled substancе or controlled substance analog is intended for sale or resale by the offender or another person.”
{¶ 30} Sheldon makes the same argument for Count 1 and Count 4. Namely, she claims there was insufficient evidence to show she was trafficking in drugs (or possessing drug paraphernalia). In her argument, Sheldon states that if she had known there were drugs in the magnetic box “it is reasonable to conclude” that she would havе either locked the magnetic box or placed it somewhere else. Presumably, she means that she would have placed the drugs in a location where she could have better concealed her crime. In sum, Sheldon argues that her actions on the night of her arrest “show a lack of awareness” regarding the drugs and drug paraphernalia found in the magnetic box because she pulled her vehicle over and was cooperative.
Count 3 Illegal Conveyance Charge
{¶ 32} Additionally, Sheldon was convicted of illegal conveyance of weapons into a detention facility in violation of
{¶ 33} However, Sheldon‘s argument as to this count is similarly without merit. In
{¶ 34} Following review, we find Sheldon‘s convictions are supported by sufficient evidence and are not against the manifest weight of the evidence. Sheldon‘s second and third assignments of error are overruled.
{¶ 35} Assignment of Error No. 4:
{¶ 36} THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL AS GUARANTEED BY SECTION 10, ARTICLE 1, OF THE OHIO CONSTITUTION AND THE SIXTH AND FOURTEENTH AMENDMENTS.
{¶ 37} In her fourth assignment of error, Sheldon argues she received ineffective assistance of counsel because her trial counsel failed to present expert testimony regarding drug trafficking. Sheldon stаtes “[i]t would have helped the jury to hear from an expert other than the police as to if [sic] the items recovered from the car were indicative of drug trafficking.” Sheldon further argues that counsel should have had items in the car dusted for fingerprints.
{¶ 38} To prevail on an ineffective assistance of counsel claim, Sheldon must show her trial counsel‘s performance was dеficient, and that she was prejudiced as a result. State v. Petit, 12th Dist. Madison No. CA2016-01-005, 2017-Ohio-633, ¶ 39. Trial counsel‘s
{¶ 39} The failure to call an expert and instead rely оn cross-examination does not typically constitute ineffective assistance of counsel. State v. Green, 12th Dist. Warren No. CA2017-11-161, 2018-Ohio-3991, ¶ 43. It is generally a legitimate trial strategy for defense counsel not to present expert testimony and instead rely upon cross-examination to rebut evidence of a crime. State v. Cooperstein, 12th Dist. Warren No. CA2018-09-117, 2019-Ohio-4724, ¶ 27. In many criminal cases, such a decision by trial counsel is unquestionably tactical because suсh an expert might uncover evidence that further inculpates the defendant. Green at ¶ 43. Further, even if the wisdom of such an approach is debatable, “debatable trial tactics” do not constitute ineffective assistance of counsel. State v. Clayton, 62 Ohio St.2d 45, 49 (1980).
{¶ 40} We find nothing to suggest that trial counsel‘s failure to call an expert was anything other than a reasonable, tactical decision. Sheldon‘s speculation that her trial counsel could have created doubt if counsel would have obtained an expert or requested fingerprint dusting is entirely that—speculation. Sheldon cannot establish that there is a reasonable probability that the outcome of the trial would have been different, particularly in light of all the evidence eliminating any doubt as to her guilt. In this case, thеre was substantial evidence that Sheldon was found in possession of large amounts of methamphetamine, cash, a digital scale, and baggies. Sheldon‘s identification cards were found in the same bag. Accordingly, Sheldon was not denied effective assistance of counsel. Sheldon‘s fourth assignment of error is overruled.
S. POWELL, P.J., and BYRNE, J., concur.