State v. TaylorState v. Taylor
Neil P. Agarwal, 3766 Fishcreek Road, #289, Stow, OH 44224-4379 (For Defendant-Appellant).
O P I N I O N
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Dawayne L. Taylor, appeals from the judgment of the Portage County Court of Common Pleas convicting him, after trial by jury, of trafficking in marijuana and having a weapon under disability. For the reasons discussed in this opinion, the judgment of the trial court is affirmed in part, reversed in part, and remanded.
{¶3} Sergeant Richard Soika was also on the scene near the patio when he heard the sound of an object hitting the ground. He looked and noticed a gun had fallen onto the patio amidst the group. The officer shouted “gun!” and advised the individuals not to move. Officer Soika retrieved the weapon, a Glock handgun with a bullet in its chamber and a full magazine, and secured it in his cruiser. Police later found out the weapon had been stolen in Westlake, Ohio.
{¶4} The on-site officers conducted a protective sweep of the duplex and uncovered three nine millimeter shell casings in the kitchen garbage can; a baggie of marijuana on the microwave; a cellophane wrapper containing marijuana; a rolled cigar, marijuana stems, a plate with a white powdery substance and a small straw on it; and a digital scale with marijuana residue on it. The investigation later revealed that Heather Yeager, appellant‘s girlfriend, was house-sitting at the duplex for a friend.
{¶6} Appellant‘s initial charge was dismissed for further review by police. By May of 2011, however, two warrants were issued for appellant‘s arrest based upon facts surrounding the foregoing incident. And, on May 5, 2011, appellant was apprehended and placed into custody. On May 6, appellant asked to speak with officers regarding the charges he was facing. After being Mirandized, appellant told officers that the Glock handgun retrieved on March 27, 2011 was not his weapon and it was never fired in his presence. Appellant admitted, however, that, on the night of his arrest, he possessed a 1997 nine millimeter Argus handgun. Appellant stated he intended to sell the weapon to an individual named Vito. To demonstrate its operability, appellant told police he had fired the gun seven or eight times. After doing so, he stated he hid the weapon under a couch in the duplex Heather Yeager was watching.
{¶7} Appellant told police his decision to speak with them was premised upon his fear that he would be prosecuted for shooting a stolen weapon that he neither fired nor handled. Appellant also stated he did not know what happened to the Argus nine millimeter that he fired on the night of the incident. He suggested, however, one of the
{¶8} As a result of the incident, appellant was indicted on one count of trafficking in marijuana, in violation of
{¶9} Prior to trial, the state moved to dismiss the counts charging receiving stolen property and possession of drug paraphernalia. The motion was granted. A jury was empanelled and, after hearing the evidence, appellant was convicted for trafficking in marijuana and having a weapon under disability. Appellant was sentenced to 12 months imprisonment for trafficking in marijuana and three years imprisonment for having weapons while under disability. The trial court ordered the sentences to be served concurrently with one another for an aggregate prison term of three years. The trial court further ordered a forfeiture of the $390.71 taken at the scene of appellant‘s original arrest.
{¶10} Appellant filed a timely appeal and now alleges seven assignments of error for our review. His first assignment of error provides:
{¶12} “An appellate court reviewing whether the evidence was sufficient to support a criminal conviction examines the evidence admitted at trial and determines whether such evidence, if believed, would convince the average juror of the defendant‘s guilt beyond a reasonable doubt.” State v. Troisi, 179 Ohio App.3d 326, 2008-Ohio-6062, ¶9 (11th Dist.) A reviewing court may not reweigh the evidence; rather, the appropriate inquiry is, after viewing the evidence in a light most favorable to the prosecution, whether the jury could have found the elements of the crime proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 273 (1991).
{¶13} Alternatively, a manifest weight challenge requires an appellate court to consider the entire record, including the credibility of witnesses and potential conflicts in the evidence, and determine whether the jury clearly lost its way such that the verdict of guilty resulted in a manifest miscarriage of justice requiring a new trial. See e.g. State v. Schlee, 11th Dist. No. 93-L-082, 1994 Ohio App. LEXIS 5862, *14-*15 (Dec. 23, 1994). A judgment of a trial court should be reversed as being against the manifest weight of the evidence “only in the exceptional case where the evidence weighs heavily against the conviction.” State v. Thompkins, 78 Ohio St.3d 380, 387 (1997).
{¶14} Appellant‘s first assignment of error does not take issue with his conviction for trafficking in marijuana; instead, appellant challenges the sufficiency and weight of the evidence supporting his conviction for having a weapon while under a disability. In
{¶15} Appellant was charged with having a weapon while under disability in violation of
{¶16} (A) Unless relieved from disability as provided in
section 2923.14 of the Revised Code , no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if any of the following apply:{¶17} * * *
{¶18} (3) The person is under indictment for or has been convicted of any felony offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse * * *.
{¶19} Preliminarily, the record is clear that, in 2007, appellant was convicted of three counts of felony-four trafficking in marijuana and one count of felony-four trafficking in cocaine. The disability element of the offense was therefore proven beyond a reasonable doubt. Appellant does not dispute this point. Rather, appellant postulates that because the prosecution offered no evidence connecting him to the Glock handgun found at the duplex on March 27, 2011, the only firearm recovered from the scene, it failed to demonstrate he knowingly acquired, had, carried, or used that weapon. While appellant is correct that the prosecution offered no evidence to prove he possessed or used the Glock, this omission is of no legal significance in this case.
{¶21} Instead, appellant told officers that he had fired an Argus nine millimeter between seven and eight times into the air to prove the weapon was operable for sale to a third party. Appellant‘s concession was a result of his concern that he would be charged with shooting a stolen weapon with which he did not have physical contact.
{¶22} Appellant‘s admission that he shot a nine millimeter handgun was consistent with the positive results from the gunshot residue test taken from his hands subsequent to his arrest on March 27, 2011 as well as the evidence of the shell casings recovered from the scene. While the Argus nine millimeter was never found, appellant unequivocally admitted he shot the weapon and hid the gun under a couch in the residence. During his interview, appellant stated he did not know what happened to the weapon after he was arrested, but speculated that one of the individuals who was at the duplex on March 27, 2011 had removed it. Given appellant‘s admission as well as the surrounding circumstantial evidence, there was adequate, credible evidence that he knowingly had, carried, as well as used a firearm on the night of his original arrest.
{¶23} Appellant‘s first assignment of error lacks merit.
{¶24} Appellant‘s second assignment of error provides:
{¶25} “The trial court improperly sentenced Taylor on his conviction for trafficking in marijuana as a felony of the fifth degree instead of a minor misdemeanor in violation of
{¶26}
{¶27} (A) When the presence of one or more additional elements makes an offense one of more serious degree:
{¶28} * * *
{¶29} (2) A guilty verdict shall state either the degree of the offense of which the offender is found guilty, or that such additional element or elements are present. Otherwise, a guilty verdict constitutes a finding of guilty of the least degree of the offense charged.
{¶30} Appellant was charged by indictment with trafficking in marijuana in violation of
{¶32} Here, appellant was charged with a more serious degree of the offense of marijuana trafficking than the least degree of the offense set forth in the statute. Consequently, “pursuant to the clear language of the statute,” the verdict form was required to specifically state the degree of the offense of which the jury found appellant guilty. Because the verdict form was silent on the degree of the crime, by operation of
{¶33} The state argues that, irrespective of the verdict form‘s shortcoming, the felony-five conviction is still valid under Pelfrey and therefore comports with
{¶34} Although the Supreme Court in Pelfrey indicated the judgment entry in that case failed to mention the degree of the offense or that an aggravating element was found by the jury, this does not necessarily imply that
{¶35} Moreover, the Court in Pelfrey specifically stated that the express requirement of
{¶36} Appellant‘s second assignment of error is sustained.
{¶37} Appellant‘s third assignment of error provides:
{¶38} “The trial court committed reversible error in imposing court costs against Taylor without complying with
{¶39}
{¶40} (A) (1) In all criminal cases, including violations of ordinances, the judge or magistrate shall include in the sentence the costs of prosecution, including any costs under
section 2947.231 of the Revised Code , and render a judgment against the defendant for such costs. At the time the judge or magistrate imposes sentence, the judge or magistrate shall notify the defendant of both of the following:
{¶41} (a) If the defendant fails to pay that judgment or fails to timely make payments towards that judgment under a payment schedule approved by the court, the court may order the defendant to perform community service in an amount of not more than forty hours per month until the judgment is paid or until the court is satisfied that the defendant is in compliance with the approved payment schedule.
{¶42} (b) If the court orders the defendant to perform the community service, the defendant will receive credit upon the judgment at the specified hourly credit rate per hour of community service performed, and each hour of community service performed will reduce the judgment by that amount.
{¶43} In State v. Smith, 131 Ohio St.3d 297, 2012-Ohio-781, the Supreme Court of Ohio held the foregoing statutory provisions are mandatory and a trial court must put a criminal defendant on notice of their content at the time of sentencing. Id. at ¶10. In this case, the trial court imposed costs, but did not issue the appropriate statutory notification. The state concedes this error. We therefore hold the matter must be reversed and remanded for resentencing for proper notification pursuant to
{¶44} Appellant‘s third assignment of error is sustained.
{¶45} Appellant‘s fourth assignment of error asserts:
{¶47}
{¶48} We first point out that court costs are not financial sanctions. See e.g. State v. Jennings, 2d Dist. No. 24559, 2012-Ohio-1229, ¶6. Consequently,
{¶50} Appellant‘s fourth assignment of error lacks merit.
{¶51} Appellant‘s fifth and sixth assignments of error shall be addressed together, they provide:
{¶52} “[5.] The Trial Court committed reversible error in ordering forfeiture of Taylor‘s property because it was not properly specified in the indictment, and the jury was never instructed nor found that the property was subject to forfeiture. (T.d. 1, 65, 10/24/11 Sentencing Hearing, T.p. 7, 10/27/11 Journal Entry).
{¶53} “[6.] The Trial Court committed reversible error in ordering forfeiture to the Kent Police Department Law Enforcement Trust Fund because it is not a proper party to receive forfeiture proceeds. (T.d. 62, 65, 10/24/11 Sentencing Hearing, T.p. 7, 10/27/11 Journal Entry, 11/8/11 Journal Entry).”
{¶55}
{¶56} (A) Property is not subject to forfeiture in a criminal case unless the indictment, count in the indictment, or information charging the offense specifies, to the extent it is reasonably known at the time of filing, the nature and extent of the alleged offenders interest in the property, a description of the property, and, if the property is alleged to be an instrumentality, the alleged use or intended use of the property in the commission or facilitation of the offense. The specification shall be stated at the end of the body of the indictment, count, or information and shall be in substantially the following form:
{¶57} “SPECIFICATION (or SPECIFICATION TO THE FIRST COUNT). The grand jurors (or insert the person‘s or prosecuting attorney‘s name when appropriate) further find and specify that (set forth the alleged offender‘s interest in the property, a description of the property subject to forfeiture, and any alleged use or intended use of the property in the commission or facilitation of the offense).”
{¶58} (B) The trier of fact shall determine whether the property is subject to forfeiture.
{¶59} Moreover,
{¶60} The record in this case indicates that the indictment properly charged the forfeiture specification with the trafficking in marijuana charge. After evidence was taken, however, the trial court failed to instruct the jury on the necessary law relating to the specification. Consequently, the jury did not enter a finding on the specification. Furthermore, there is nothing in the record to suggest appellant, through counsel, moved the trial court to make a determination on the forfeiture issue. As the jury made no determination vis-à-vis the forfeiture specification and the matter was not, by motion, committed to the judge, the trial court erred in issuing an order of forfeiture as a matter of law. We therefore hold both the forfeiture order and the order distributing the $390.71 must be vacated.
{¶61} Appellant‘s fifth assignment of error is sustained and, as a result, his sixth assignment of error is rendered moot.
{¶62} Appellant‘s final assignment of error asserts:
{¶63} “The cumulative effect of the Trial Court‘s errors denied Taylor a fair trial. (10/27/11 Journal Entry, 11/8/11 Journal Entry).”
{¶65} A defendant does not have the right to an error-free trial; rather, the constitution simply confers the right to a fair trial. State v. Stoutamire, 11th Dist. No. 2007-T-0089, 2008-Ohio-2916, ¶100. Accordingly, “a conviction will be reversed where the cumulative effect of errors in a trial deprives a defendant of the constitutional right to a fair trial even though each of numerous instances of trial court error does not individually constitute cause for reversal.” State v. Garner, 74 Ohio St.3d 49, 64 (1995).
{¶66} In this case, any error committed in this case occurred after both parties rested and, as discussed above, each error constitutes an independent basis for reversal. Further, as discussed under appellant‘s first assignment of error, the trial court did not err in overruling appellant‘s Crim.R. 29 motion nor did the jury lose its way in convicting appellant of the crime of having weapons while under disability. Appellant has therefore failed to demonstrate any, let alone multiple, harmless errors warranting the application of the cumulative error doctrine. State v. Theisler, 11th Dist. No. 2005-T-0106, 2007-Ohio-213, ¶123. This court has previously observed that the doctrine of cumulative error is inapplicable to cases where there are not multiple errors each of which, on their own, would be otherwise harmless. Id. at ¶124. In short, the doctrine of cumulative error does not apply to this case.
{¶67} Appellant‘s final assignment of error lacks merit.
{¶68} For the reasons discussed in this opinion, appellant‘s first, fourth, and seventh assignments of error are overruled. Appellant‘s second, third, and fifth
DIANE V. GRENDELL, J.,
MARY JANE TRAPP, J.,
concur.