State v. TaylorState v. Taylor
ROGERS, P.J.
{¶1} Defendant-Appellant, Megan L. Taylor (“Taylor”), appeals the judgment of the Court of Common Pleas of Seneca County, convicting and sentencing her on two felony counts. On appeal, Taylor argues that the jury verdict was against the manifest weight of the evidence; that she received ineffective assistance of counsel; that the trial court erred in sentencing her for both counts of aggravated trafficking as they were allied offenses; and, that the final judgment entry and the nunc pro tunc judgment entry should be void as the trial court cited the wrong section of the Ohio Revised Code. Finding that the evidence supported the jury’s verdict, that Taylor has failed to establish ineffective assistance of counsel, and that the offenses were not allied offenses, we affirm in part the decision of the trial court. Finding that the trial court committed several clerical errors in the judgment entry and erred in awarding restitution, we reverse in part the judgment of the trial court.
{¶2} On July 29, 2010, the Seneca County Grand Jury indicted Taylor on two counts of aggravated trafficking in drugs in violation of
{¶3} At trial, the State presented five witnesses, including Detective Donald Joseph, a detective sergeant with the Seneca County Sheriff’s Office; Scott Dobransky, a forensic scientist for the Ohio Bureau of Criminal Identification and Investigation; Detective Matthew Armstrong, a detective for the Fostoria Police Department assigned to the Seneca County Drug Task Force; Rachel Eckert (“the CI”) the confidential informant; and, Detective Charles Boyer, a unit coordinator for the Seneca County Drug Task Force. The defense presented Appellant Taylor. The State’s case in chief adduced the following relevant evidence.
{¶4} Detective Joseph testified that he was involved in a controlled buy on
{¶5} Detective Joseph continued to testify regarding the second controlled buy on November 7, 2009. He testified that, at the end of the operation on November 6, 2009, the CI and Taylor arranged for Taylor to sell another five pills
{¶6} Rachel Eckert testified that she “had gotten into some trouble” and “as a way to resolve [her] problems,” she worked as a CI in Seneca County for about one month. Trial Tr., p. 209. She testified that in consideration for her efforts, she was to receive community control and drug rehabilitation. The CI continued
{¶7} The recording of the buy on November 6, 2009 was played for the jury. It revealed that Taylor sold the CI five pills of Percocet for $5.00 each. Children’s voices could be heard clearly on the audio recording. Also, the recording revealed that the CI and Taylor agreed to a second sale of Percocet the following day.
{¶8} The CI continued to testify regarding the buy on November 7, 2009. She explained that the same procedure as the first buy was followed except that Detective Boyer took a video recording of the operation outside of Taylor’s
{¶9} On redirect-examination, the CI testified to the discussion between her and Taylor regarding Taylor selling her the Percocet. The CI explained that she and Taylor had been acquainted for about two years; that, in late Oсtober or early November of 2009, she was leaving the hospital after having undergone a procedure; that as she was waiting for her ride, Taylor entered the hospital with one of her children; that the CI and Taylor began talking about the reasons they were at the hospital when Taylor said that she had Percocet to sell for $5.00 each; and, that the two exchanged phone numbers so that she could buy Percocet from Taylor.
{¶10} The video recording taken by Detective Boyer on November 7, 2009 was played for the jury. It showed the CI drive to and park outside Taylor’s
{¶11} The State moved to admit its exhibits, which the trial court admitted.
{¶12} The defense then presented Taylor on direct-examination. Taylor testified that she has known the CI for a couple of years; that they have spent time together in the past; that they lost contact when she moved; that she ran into the CI at the hospital; that, at the hospital, the CI was in a wheelchair as she had just undergone a procedure; that the CI looked exhausted and said she was taking Percocet; that she was concerned for the CI because she viewed her as a good friend; that she said she also had Percocet for a recent procedure; that she had her four-year old daughter with her; that a nurse was presеnt for their entire interaction; that she suggested they exchange phone numbers so that they could get together; that she did not offer to sell the CI Percocet because she does not sell drugs; that it was the CI who contacted her about buying Percocet; that it was the CI who suggested to buy five Percocet for $25.00; that she just wanted someone to spend time with because she does not have any friends; that she never had it in mind to commit a criminal offense, but that she just wanted to help out a friend; and, that the CI persuaded her to sell her drugs. Taylor also testified that, on November 7, 2009, her son exited their residence with her and rode his bike to his
{¶13} On cross-examination, Taylor testified that on November 6, 2009, her children were in the room with her when she sold the CI the Percocet; that she asked the CI if she was interested in a muscle relaxer; that she sold the CI five pills on November 6, 2009 and five pills on November 7, 2009; and, that she received $25.00 on each day.
{¶14} The defense rested. The jury returned a verdict of guilty on count I and count II, and found that Taylor did commit the offense within the vicinity of a juvenile for count I, but not for count II. Further, the jury found that Taylor did not prove the affirmative defense of unlawful entrapment for either count. The trial court accepted the verdicts and subsequently sentenced Taylor to three years’ imprisonment for count I and twelve months’ imprisonment for count II, to be served concurrently. The trial court also ordered restitution to be paid to the Seneca County Drug Task Force METRICH Enforcement Unit. It is from the conviction and the sentence that Appellant brings her appeal, assigning the following errors for our review.
Assignment of Error No. I
THE JURY VERDICT OF GUILTY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AS WAS THE JURY FINDING OF NO ENTRAPMENT
THE APPELLANT WAS DENIED HER RIGHT TO A FAIR TRIAL BY THE INEFFECTIVE ASSISTANCE OF COUNSEL EVIDENCED BY COUNSEL’S OPENING REMARKS
Assignment of Error No. III
THE TRIAL COURT ERRED IN SENTENCING APPELLANT FOR BOTH COUNTS IN THE INDICTMENT AS THE COUNTS WERE ALLIED OFFENSES OF SIMILAR IMPORT UNDER ORC 2941.25(A)
Assignment of Error No. IV
THE TRIAL COURT ERRED IN ITS SENTENCING ENTRY OF NOVEMBER 23, 2010 AND ITS NUNC PRO TUNC ENTRY OF NOVEMBER 24, 2010 BY CITING THE WRONG OHIO REVISED CODE SECTION
Assignment of Error No. I
{¶15} In her first assignment of error, Taylor alleges that the jury verdict was against the manifest weight of the evidence due to the conflicting testimony regarding the initiation of the contact between the CI and Taylor. Taylor also alleges that the jury’s finding that there was no entrapment was against the manifest weight of the evidence as the evidence established that the CI had initiated аnd arranged for the purchases herself.
{¶16} The State contends that the verdict was not against the manifest weight of the evidence in light of the overwhelming evidence favoring Appellant’s guilt. We agree.
{¶17} When an appellate court analyzes a conviction under the manifest weight standard it must review the entire record, weigh all of the evidence and all of the reasonable inferences, consider the credibility of the witnesses, and determine whether, in resolving conflicts in the evidence, the fact finder clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541, 1997-Ohio-52, superseded by constitutional amendment on other grounds аs stated by State v. Smith, 80 Ohio St.3d 89, 684 N.E..2d 668, 1997-Ohio-335, quoting State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717. Only in exceptional cases, where the evidence “weighs heavily against the conviction,” should an appellate court overturn the trial court’s judgment. Id.
{¶18} Under a manifest weight standard, an appellate court sits as a “thirteenth juror” and may disagree with the fact finder’s resolution of the conflicting testimony. Id. Although the appellate court may act as a thirteenth juror, it should give due deference to the findings made by the fact-finder. Thompkins, 78 Ohio St.3d at 388.
{¶19} The jury found Taylor guilty on two counts of aggravated trafficking in drugs in violation of
{¶20} The manifest weight of the evidence presented at trial clearly established Taylor’s guilt. As Scott Dobransky, the forensic scientist with the Ohio Bureau of Criminal Identification and Investigation, testified, the pills he received as evidence from the two buys contained Oxycodone, which is a Schedule II controlled substance. For the first sale, the audio recording, the testimony of the CI, the officers, and Taylor, and the drugs admitted as evidence оverwhelmingly support the jury verdict of guilty. The audio recording reveals statements made by Taylor that establish that she knowingly sold the drugs to the CI. Taylor stated that she was at first skeptical of the CI as she did not want the CI to turn her into the police, and that she also had other drugs for sale. The testimony of the CI and the officers corroborated that the sale took place. Further, Taylor herself testified that she sold drugs to the CI while her children were in the room. For the second sale, although the audio recording does not reveal a verbal exchange regarding the sale, it does establish that the CI and Taylor had a
{¶21} The defense also asserts that the jury’s finding of no entrapment was against the manifest weight of the evidence. In State v. Doran, the Supreme Court defined the affirmative defense of entrapment as:
The defense of entrapment is established where the criminal design originates with the officials of the government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order to prosecute.
State v. Doran (1983), 5 Ohio St.3d 187, 449 N.E.2d 1295, paragraph one of the syllabus. In defining entrapment, the Supreme Court adopted a subjective test, which focuses on the predisposition of the accused to commit the offense, emphasizing the accused’s criminal culpability and not the culpability of the police officer. Id. at 192. The Supreme Court held that the following matters, although non-exhaustive, are relevant in establishing the issue of predisposition:
(1) The accused’s previous involvement in criminal activity of the nature charged, (2) the accused’s ready acquiescence to the inducements offered by the police, (3) the accused’s expert knowledge in the area of the criminal activity charged, (4) the accused’s ready access to contraband, and (5) the accused’s willingness to [become involved] in criminal activity.
{¶22} In the present case, Taylor presented evidence through her own testimony that the CI was the one who initiated the discussion of buying Percocet, who followed up with her to buy the Percocet, and who arranged the first and the second sale of the Percocet. Taylor testified that she knew the CI through mutual acquaintances and that a few days before the sales occurred, she ran into the CI at the hospital. Taylor explаined that the CI had just had a procedure done and needed pain medication as the doctor did not give her a prescription. Taylor testified that she agreed to sell the CI Percocet because she had some that she was not taking, and because she was in need of friends and saw this as an opportunity to gain a friend.
{¶23} Notably missing from Taylor’s testimony is any evidence regarding her predisposition to trafficking in drugs, including any previous involvement or lack thereof, her failure to readily acquiesce to the sale, a lack of knowledge of drug trafficking, or her unwillingness to become involved in criminal activity. Rather, the State presented evidence that Taylor readily sold the CI drugs and even offered to sell her other drugs. Because the defense has failed to produce evidence of Taylor’s lack of predisposition, it failed to establish entrapment by a
{¶24} Accordingly, we overrule Taylor’s first assignment of error.
Assignment of Error No. II
{¶25} In her second assignment of error, Taylor asserts that she received ineffective assistance of counsel due to the negative statements made by her counsel about her during his brief opening statement, voir dire, and his longer opening statement. Taylor urges that, assuming these remarks are considered trial strategy, they were faulty and creаted an insulting initial impression, without which, the outcome at trial would have been different.
{¶26} The State contends that counsel’s remarks did not amount to ineffective assistance as they were clearly part of his trial strategy to cast her as a lonely individual who was desperate for companionship.
{¶27} An ineffective assistance of counsel claim requires proof that trial counsel’s performance fell below objective standards of reasonable representation and that the defendant was prejudiced as a result. State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph two of syllabus. To show that a defendant has been prejudiced by counsel’s deficient performance, the defendant must prove that there еxists a reasonable probability that, but for counsel’s errors, the outcome at trial would have been different. Id. at paragraph three of syllabus. “Reasonable
{¶28} Furthermore, the court must look to the totality of the circumstances and not isolated instances of an allegedly deficient performance. State v. Malone (Dec. 13, 1989), 2d Dist. No. 10564. “Ineffective assistance does not exist merely because counsel failed ‘to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it.’” Id., quoting Smith v. Murray (1986), 477 U.S. 527, 535, 106 S.Ct. 2661.
{¶29} An appellate court reviewing an ineffective assistance of counsel claim will not second-guess counsel’s strategy. State v. Fritz, 3d Dist. No. 13-06-39, 2007-Ohio-3138, ¶39, citing State v. Williams (2003), 99 Ohio St.3d 493, 794 N.E.2d 27, 2003-Ohio-4396; State v. Clayton (1980), 62 Ohio St.2d 45, 402 N.E.2d 1189; In re Smith, 3d Dist. No. 9-04-35, 2005-Ohio-149, ¶57, citing State v. Manley, 3d Dist. No. 1-01-159, 2002-Ohio-5582, ¶22. Furthermore, tactical decisions, even if debatable, generally, do not constitute a deprivation of effective counsel. Smith, 2005-Ohio-149, at ¶57, citing Manley, 2002-Ohio-5582, at ¶22.
{¶30} Taylor fails to establish that her counsel’s performance was deficient or that it was anything other than trial strategy. Further, Taylor has failed to show that without her trial counsel’s statements, the outcome would have been different.
{¶31} Taylor asserts ineffective assistance based on the following statements made by her trial counsel during his mini-opening statement, voir dire, and his opening statement:
[Trial counsel]: Megan entertained this [CI] at Megan’s white trailer-trash trailer at Brook Park Estates. And Megan has a run – run – running mouth. A machine gun mouth.
Trial Tr., p. 18.
[Trial cоunsel]: I’m going to be very blunt and very graphic and very explicit with you prospective jurors . . . if it is disclosed to you that Megan Taylor has a libido 10 times greater than Madonna, are you gonna (sic) hold that against her? In other words, she likes sex.
Trial Tr., p. 81.
[Trial counsel]: In that interim, she was left to her own devices and went about living her life as a single homemaker and mother of two young children, struggling, in a white trailer-trash trailer, Brook Park Estates.
Trial Tr., p. 113.
{¶32} A review of the entire trial transcript and audio recordings reveals that trial counsel made the above statements as part of his trial strategy, which was to cast Taylor as an impoverished, single mother who was struggling to raise children on her own and who was desperate for a friend. His goal was to create
{¶33} An often-used trial strategy is to preempt the prosecution by introducing harmful character evidence first, thereby lessening its impact. State v. Baskerville, 5th Dist. No. 2007 CA 00353, 2008-Ohio-3114, ¶17, citing State v. Delgado (June 11, 1992), 8th Dist. Nos. 60587, 60588. We, therefore, cannot say the statements made by trial counsel in his mini-opening statement, voir dire, and opening statement were anything other than trial strategy. Accord Baskerville (holding that trial counsel’s reference to defendant’s criminal history during opening statements did not amount to ineffective assistance of counsel), State v. Reed, 8th Dist. No. 93346, 2010-Ohio-1866, ¶60-64 (holding that trial counsel’s reference to his client as a “drug dealer” during opening statements did not result in ineffective assistance of counsel).
{¶34} Further, Taylor has failed to establish that, absent the harmful statements, the outcome would have been different, in light of the evidence adduced at trial as discussed in our analysis of her first assignment of error. While we do not dispute that these statements were crass and offensive, and would highly suggest trial counsel find a more eloquent manner of presenting his case, we
{¶35} Accordingly, we overrule Taylor’s second assignment of error.
Assignment of Error No. III
{¶36} In her third assignment of error, Taylor argues that the trial court erred in sentencing her for both counts in the indictment as they were allied offenses of similar import. Specifically, Taylor asserts that since the offer to sell drugs was made at the same time the first offense of drug trafficking was committed, her conduct on November 6, 2009 provided the basis for the commission of the crime for both counts. Since that conduct could result in a conviction on both counts, Taylor claims they are allied offenses of similar import and she can only be convicted and sentenced on one count.
{¶37} The State contends that the trial court did not err as the two counts are not allied offenses. Specifically, the State asserts that each count was based on different conduct, was a separate transaction, occurred on different occasions, and had a different operation number, and therefore the two counts do not fit the definition of allied offenses under State v. Cabrales, 118 Ohio St.3d 54, 886 N.E.2d 181, 2008-Ohio-1625, at ¶14 quoting State v. Blankenship (1988), 38 Ohio St.3d 116,117, 526 N.E.2d 816.
{¶38} We initially note that Taylor failed to raise the issue of allied offenses in the trial court, thus waiving all but plain error on this issue.
{¶39}
(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant’s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of аll of them.
In determining whether offenses are allied offenses of similar import under
R.C. 2941.25(A) , the question is whether it is possible to commit one offense and commit the other with the same conduct * * * If the offenses correspond to such a degree that the conduct of the defendant constituting commission of one offense constitutes commission of the other, then the offenses are of similar import.If the multiple offenses can be committed by the same conduct, then the court must determine whether the offenses were committed by the same conduct, i.e., “a single act, committed with a single state of mind.” Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, at ¶50 (Lanzinger, J., dissenting).
If the answer to both questions is yes, then the offenses are allied offenses of similar import and will be merged.
Conversely, if the court determines that the commission of one offense will never result in the commission of the other, or if the offenses are committed separately, or if the defendant has separate animus for each offense, then, according to
R.C. 2941.25(B) , the offenses will not merge.
Siefer, 2011-Ohio-1868, at ¶21-22, citing Johnson, 128 Ohio St.3d at ¶48-51.
{¶41} Here, where Taylor was indicted for and convicted of two counts of aggravated trafficking in drugs in violation of
{¶42} Accordingly, we overrule Taylor’s second assignment of error.
Assignment of Error No. IV
{¶43} In her fourth assignment of error, Taylor argues that the sentencing entries should be void as they list the wrоng Ohio Revised Code section in violation of
{¶44} The State acknowledges the mistake, but asserts that the incorrect Code sections in the sentencing entries are the result of a scrivener’s error, and as
{¶45} A review of the record reveals that the indictment charged Taylor with two counts of aggravated trafficking in drugs in violation of
{¶46} The trial court issued a judgment entry dated November 23, 2010, which stated that the trial court found that Taylor was convicted of “[a]ggravated [t]rafficking in [d]rugs with specification (sic)2, in violation of Revised Code Section 2925.02(A)(1), (C)(1)(b), both being felonies of the Third Degree”, and also found that Taylor was convicted of “[a]ggravated [t]rafficking in [d]rugs, in
{¶47} This was erroneous for three reasons. First, the entry erroneously stated convictions for violations
{¶48} In its nunc pro tunc judgment entry entered November 24, 2010, the trial court corrected the first count to the extent that it changed the wording from the plural to the singular. However, the trial court failed to correct the other errors. It should also have corrected the reference to the subsection from .02 to .03 on both counts, and also should have corrected the Revised Code Section for count II to read
{¶49} Further, a review of the verdict forms reveals that these also contained errors.
{¶50} Both verdict forms read as follows:
We, the jury, find the defendant, Megan L. Taylor *___________, of the charge of Aggravated Trafficking in Drugs, a felony of the Third Degree.
(*Insert in ink: guilty or not guilty)We do further find that the defendant ** ____________ commit the offense in the vicinity of a juvenile.
(** Insert in ink: did or did not)
{¶51} However, aggravated trafficking is only a felony of the fourth degree unless the jury makes an additional finding that enhances the offense to an offense of the third degree. Therefore, the verdict forms should not have referred to aggravated trafficking as a felony of the third degree. In count I the jury did make the additional finding, and the conviction was enhanced to a felony of the third degree. But in Count II, the jury did not find that the State had proven the additional finding, so the offense remained a felony of the fourth degree.
{¶52} Despite the innumerable errors in the verdict forms and judgment entries, it cannot be said that Taylor incurred any prejudice, and therefore we hold that her judgment entries are not void. A review of the trial transcript clearly shows that the defense was aware of the charges against Taylor and prepared and presented its defense at trial for the two offenses of aggravated trafficking in drugs and its defense of the additional findings. It cannot be said that the errors were anything other than clerical.
{¶53} “The term clerical mistake refers to a mistake or omission, mechanical in nature and apparent on the record, which does not involve a legal
{¶54} Accordingly, we sustain her fourth assignment of error and remand for corrective action consistent with the foregoing analysis.
{¶55} In addition to Taylor’s assignments of error, we, sua sрonte, address plain error in her sentencing, particularly the trial court’s award of restitution to the Seneca County Drug Task Force METRICH Enforcement Unit. In its judgment entry, the trial court ordered Taylor to “pay restitution in the amount of
{¶56}
* * * Financial sanctions that may be imposed pursuant to this section include, but are not limited to, the following:
Restitution by the offender to the victim of the offender’s crime or any survivor of the victim, in an amount based on the victim’s economic loss. * * *
{¶57} This Court has held that the plain language of
{¶58} In light of this plain error, we hereby vacate the order of restitution.
{¶59} Having found no error prejudicial to Taylor herein, in the particulars assigned and argued in her first three assignments of error, but having found error in the fourth аssignment of error and plain error in the trial court’s award of restitution, we affirm in part, and reverse in part, the judgment of the trial court, and remand for further proceedings consistent with this opinion.
Judgment Affirmed in Part,
Reversed in Part and
Cause Remanded
SHAW and WILLAMOWSKI, J.J., concur.
/jlr
Notes
A specification, on the other hand, typically refers to a Revised Code section separate from that of the offense. See generally R.C. 2941.14 et seq. A specification is an additional factual question that must be stated separately in an indictment, proven beyond a reasonable doubt, requires separate instructions to the jury for each specification attached to a count of the indictment, and requires a separate finding in the jury’s verdict.