2005 Ohio 1962 | Ohio Ct. App. | 2005
Lead Opinion
{¶ 2} On April 10, 2003, detectives from the Lakewood Police Department, Cleveland Police Department, agents from the West Shore Enforcement Narcotics Task Force, and the Ohio Attorney General's Office set up a "controlled purchase" detail at the Best Hotel, 3614 Euclid Avenue, Cleveland, Ohio. The "controlled purchase" detail involved a confidential informant ("CI") who was going to purchase a large sum of crack cocaine from a suspected drug dealer named Jay in room 1016 of the hotel. The CI was wired with a listening device so that the officers could monitor and record the transaction and given $500 in marked currency.
{¶ 3} Agent Thomas Verhiley ("Agent Verhiley") of the Ohio Attorney General's Office and Detective Todd Allen ("Det. Allen") of the Lakewood Police Department went to the Best Hotel before the CI to set up the surveillance. They observed a man fitting the description of the suspected drug dealer leave room 1020 and enter room 1016. Agent Verhiley and Det. Allen informed the other surveillance team that two rooms might be involved. Subsequently, a search warrant for both rooms was obtained. Agent Verhiley and Det. Allen went back inside the hotel and took position in the stairwell to wait until they received the signal from the "bug" placed on the CI.
{¶ 4} Lakewood Vice Detective John Joseph Guzik ("Det. Guzik") drove the CI to the Best Hotel. Prior to her arrival, Det. Guzik patted her down to ensure that she did not have any drugs or money on her person other than the marked currency. Upon entering the lobby of the hotel, an agent stationed inside the lobby informed Det. Guzik that a man, later identified as the defendant, met the CI in the lobby and escorted her to room 1016. Therein, the CI purchased 3.6 grams of a substance later determined to be crack cocaine.
{¶ 5} After receiving a signal from the CI that the deal was completed, two teams of officers entered rooms 1016 and 1020. Room 1020 was empty. In room 1016, there were three males and four females. Sergeant Terrence Shoulders ("Sgt. Shoulders") of the Cleveland Police Department and Detective Patrick Fiorilli ("Det. Fiorilli") of the Lakewood Police Department ran directly into the bathroom of room 1016 and observed the defendant along with another suspect flushing money down the toilet. Sgt. Shoulders was able to retrieve $450 before it was flushed. The money recovered from the toilet was the same marked currency used for the "controlled purchase."1
{¶ 6} In room 1016, the search team found approximately 100 wax paper baggies. They also found marijuana, a crack pipe, a spoon, three syringes, a handgun, and a shoebox containing a crack pipe, plastic sandwich bags, crack pipe cleaners, syringe caps, and a razor blade. Det. Fiorilli testified that the spoon and wax paper baggies had white residue that appeared to be heroin. Defendant was arrested and taken into custody.
{¶ 7} On June 18, 2003, defendant was indicted for two counts of trafficking in drugs, in violation of R.C.
{¶ 8} On January 9, 2004, the matter was called to trial and defendant was convicted of all counts except the firearm specifications. On January 23, 2004, defendant agreed to a three year sentence on all counts and waived his appellate rights with regard to his sentence.
{¶ 9} Defendant appeals his convictions and raises four assignments of error for our review, which will be addressed together where appropriate.
{¶ 10} "I. The trial court committed an abuse of discretion and deprived the appellant of due process by denying his request to continue the trial."
{¶ 11} The decision to grant or deny a motion to continue a trial lies within the discretion of the trial court and will not be reversed on appeal unless the trial court has abused its discretion. Burton v. Burton
(1999),
{¶ 12} Under the circumstances presented in this case, we find that defendant has failed to establish that the trial court abused its discretion by denying his request for a continuance. First, defense counsel requested, and was granted, numerous continuances during the pendency of the proceedings. The pretrial was continued and rescheduled on four separate occasions.2 The trial was continued and rescheduled from December 12, 2003 until December 17, 2003, at which time the defendant failed to appear for trial. On January 9, 2004, three weeks after the scheduled trial date, defendant turned himself in and the matter was called to trial. Second, defendant contributed to the circumstances which gave rise to the request for a continuance; namely, his failure to appear for the scheduled trial date of December 17, 2003. See Heard v. Sharp (1988),
{¶ 13} Defendant's first assignment of error is overruled.
{¶ 14} "II. The trial court deprived the appellant of effective assistance of counsel by denying his request for a continuance.
{¶ 15} "IV. The accused was deprived of effective assistance of counsel when the trial court set a fee schedule for court appointed counsel that was inadequate to fairly compensate the court appointed attorney for his time and efforts."
{¶ 16} In his second and fourth assignments of error, defendant contends that he was denied his constitutional right to effective assistance of counsel.
{¶ 17} In order for this Court to reverse a conviction on the grounds of ineffective assistance of counsel, we must find that (1) counsel's performance was deficient and (2) that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial.Strickland v. Washington (1984),
{¶ 18} Defendant first argues that he was denied his constitutional right to effective assistance of counsel when the trial court denied his request for a continuance. We disagree. In the first assignment of error, we held that the trial court did not err in denying defendant's request for a continuance. Thus, defendant's failure to obtain a continuance was not prejudicial and defendant was not rendered ineffective assistance of counsel on that basis. See Bradley, supra.
{¶ 19} Next, defendant argues that he was prejudiced when his trial counsel was not fairly compensated for his time. Specifically, defendant claims that the fee schedule established by Cuyahoga County does not allow any appointed defense attorney to dedicate sufficient time to the defense of any client, including himself. We disagree. Loc.R 33 establishes a fee schedule for appointed counsel and section (B) of that rule details the procedure for appointed counsel to request more than the fee schedule provides. Here, there is no evidence in the record to show that defendant's trial counsel filed such a motion, along with an affidavit and itemized statement of services rendered, to the trial court. Since defendant's counsel never requested additional counsel fees, defendant cannot show that he was denied effective assistance of counsel on this basis. Ibid.
{¶ 20} The second and fourth assignments of error are overruled. {¶21} "III. The trial court violated Rule 29 of the Ohio Rules of Criminal Procedure by denying the appellant's request to dismiss the criminal charges against him, at least in relation to his conviction for possession of heroin."
{¶ 22} Crim.R. 29(A) provides that a trial court "shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, * * * if the evidence is insufficient to sustain a conviction of such offense or offenses." To determine whether the evidence before a trial court was sufficient to sustain a conviction, an appellate court must view that evidence in a light most favorable to the State. State v.Dennis (1997),
{¶ 23} An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the State, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Thompkins (1997),
{¶ 24} Here, defendant was convicted of possession and trafficking of heroin. R.C.
{¶ 25} "(A) No person shall knowingly obtain, possess, or use a controlled substance."
{¶ 26} R.C.
{¶ 27} "(A) No person shall knowingly sell or offer to sell a controlled substance."
{¶ 28} Under both of these statutes, the State was required to prove beyond a reasonable doubt that a controlled substance, in this case, heroin was involved.
{¶ 29} Generally, suspected controlled substances are tested in a laboratory and the results of those tests are introduced into evidence in the trial of a defendant charged with possession or trafficking of that substance. State v. Maupin (1975),
{¶ 30} Proof of the nature of a controlled substance can be proved by circumstantial evidence such as the testimony of an experienced police officer. Id. However, after a diligent search we have been unable to discover a case where the identification of a substance such as heroin has been proven by police testimony without expert testimony based on a chemical analysis. Rather, the holding in Maupin appears to be limited to police testimony regarding the identification of marijuana. Specifically, the Maupin court noted that "Marijuana, not being an extract or preparation difficult or impossible to characterize without chemical analysis, but consisting of the dried leaves, stems, and seeds of a plant which anyone reasonably familiar therewith should be able to identify by appearance, it is not error to permit officers who have experience in searching for and obtaining marijuana to testify that a certain substance is marijuana; and other police officers have also been qualified so to testify."5
{¶ 31} Upon thorough consideration of the law as summarized above and the relevant testimony, we find that sufficient evidence was not presented from which, when viewed in a light most favorable to the prosecution, any rational trier of fact could have found that defendant possessed or engaged in the trafficking of heroin. The mere fact that a spoon and wax paper baggies were found inside the room, without proof that the white residue found thereon was actually heroin, is insufficient evidence to convict the defendant of the offenses of drug possession and drug trafficking of heroin as defined by R.C.
{¶ 32} At sentencing, defendant agreed to a three-year prison term and knowingly and voluntarily waived his appellate rights as to sentencing.6 See State v. Butts (1996),
{¶ 33} Judgment affirmed in part; reversed in part and remanded for further proceedings consistent with this opinion.
It is ordered that appellee and appellant share equally the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed in part, any bail pending appeal is terminated. Case remanded to the trial court for further proceedings.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Ann Dyke, P.J., concurs. Corrigan, J., concurs In part and dissents in part. (See attachedconcurring and dissenting opinion).
Dissenting Opinion
{¶ 34} While I concur in part with the majority in overruling defendant's first, second, and fourth assignments of error, I respectfully dissent in part from the majority in sustaining defendant's third assignment of error as I would affirm defendant's conviction of drug possession as it relates to the heroin charge. The majority suggests that a controlled substance, such as heroin, should be submitted to testing in order to be sufficient evidence that, in fact, the alleged substance is heroin. Here, defendant had available to him the means by which he could have challenged the testing (or in this case, non-testing) of the alleged heroin found on the spoon. Pursuant to R.C.