State v. TolandState v. Toland
- Reporters:
- ,
- Before:
- Kathleen Ann Keough, Boyle, Jones
Thomas A. Rein
Leader Building, Suite 940
526 Superior Avenue
Cleveland, OH 44114
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Anne McDonough
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:
{¶ 1} Defendant-appellant, Richard Toland (“Toland“), appeals his convictions for drug possession, drug trafficking, having weapons while under disability, and possessing criminal tools. For the reasons that follow, we affirm his convictions, but reverse his sentence and remand for resentencing.
{¶ 2} In 2010, Toland was charged with two counts of drug possession in violation of
{¶ 3} This case arises from a series of controlled buys involving Toland and a confidential informant (“CI“) and a subsequent search of Toland‘s residence. On December 7, 2009, Detective Robert McKay arranged a controlled buy between the CI and Toland. The CI purchased four bags of heroin from Toland at a bus stop near East 55th Street and Woodland Avenue. After the buy, Toland walked to a residence on East 55th Street and entered the front door.
{¶ 4} On December 8, a second controlled buy from Toland took place outside his residence on East 74th Street. During this buy, Detective McKay was present and working undercover when the sale occurred. Toland exited the downstairs portion of his residence, walked to the vehicle where both Detective McKay and the CI were seated, and engaged in a hand-to-hand transaction of two packets of heroin with the CI. After the exchange, Toland went back to the downstairs portion of the residence and went inside.
{¶ 5} Based on these two controlled buys, Detective McKay set up surveillance of the East 55th and East 74th Street residences. Detective McKay witnessed Toland engage in suspected drug transactions primarily during the day out of the East 55th Street residence, and a few suspected transactions at night out of the East 74th Street residence. As a result of these observations and the prior controlled buys, Detective McKay obtained search warrants for both residences.
{¶ 7} Toland told Detective McKay that he had just moved into the house and that his niece and her daughter had been evicted from their residence and were staying with him for awhile. During the search of the residence, Detective McKay discovered in Toland‘s bedroom closet a “blue wax paper bag” which, according to Detective McKay, is commonly used to store heroin. Detective McKay further testified that he saw the jacket Toland wore during the December 7 and 8 sales hanging in the same closet where the wax bag was found.
{¶ 8} Detective Thomas Barnes also searched the bedroom and found marijuana behind the dresser and a loaded gun on a shelf in Toland‘s bedroom closet. The marijuana was packaged in eight individually-wrapped bags. After finding the items, Detective Barnes reprimanded Toland for having the drugs and gun in the house because there was a child who also lived there. Toland responded, “I know, you‘re right, you‘re exactly right, Detective.”
{¶ 9} At the conclusion of the State‘s case, Toland made a Crim.R. 29 motion for judgment of acquittal. The motion was granted as to one count of drug trafficking but denied as to all other counts. Toland also moved the trial court for a directed verdict on the forfeiture specifications, which the court granted in part. The trial court
{¶ 10} Toland appeals, raising two assignments of error contending that his convictions are not supported by sufficient evidence and are against the manifest weight of the evidence.1
{¶ 11} The test for sufficiency requires a determination of whether the prosecution met its burden of production at trial. State v. Bowden, Cuyahoga App. No. 92266, 2009-Ohio-3598, ¶12. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 942, paragraph two of the syllabus.
{¶ 12} A manifest weight challenge, on the other hand, questions whether the prosecution met its burden of persuasion. State v. Thomas (1982), 70 Ohio St.2d 79, 80, 434 N.E.2d 1356. A reviewing court may reverse the judgment of conviction if it appears that the trier of fact “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, 1997-Ohio-52, 678 N.E.2d 541.
{¶ 14}
{¶ 15} Regarding the December 7 buy, Detective McKay testified that he arranged a controlled buy of heroin between Toland and a CI and that the CI purchased four bags of heroin from Toland. Detective McKay testified that on December 8 he arranged a second controlled buy from Toland, and the CI purchased two packets of heroin from Toland. This testimony was sufficient evidence of drug possession in violation of
{¶ 16} We also find that sufficient evidence was presented to support Toland‘s conviction for drug trafficking under
{¶ 18} Similarly, with respect to the December 8 drug transaction outside Toland‘s residence on East 74th Street, Detective McKay observed Toland emerge from the steps of the house, walk to the CI, engage in a hand-to-hand transaction, and then walk back into the house. This “walking to the CI” to sell drugs is sufficient for “deliver[y]” under
{¶ 20} Toland was also convicted of having weapons while under disability, in violation of
{¶ 21} In this case, Toland stipulated to a 1989 drug possession conviction. Notwithstanding Toland‘s argument that the State failed to present sufficient evidence that he knew the gun was in the house, Detective Barnes testified that after he found the gun and drugs, he reprimanded Toland for having them in the house with a child, and Toland responded, “I know, you‘re right, you‘re exactly right, Detective.” Additionally, the gun was found in a closet containing the same jacket Toland wore during the controlled buys with the CI. This evidence was sufficient to establish that Toland “ha[d]” the firearm in violation of
{¶ 22}
{¶ 23} Accordingly, Toland‘s assignments of error are overruled.
{¶ 24} However, sua sponte we raise the issue of merger on the counts relative to drug possession and trafficking. In State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, the Ohio Supreme Court held that offenses of drug possession and drug trafficking are allied offenses of similar import for which multiple punishments are barred, and that a court of appeals must reverse the judgment of conviction and remand for a new sentencing hearing at which the State must elect which allied offense it will pursue against the defendant. Id. at paragraph two of the syllabus. Accordingly, Toland‘s sentence is reversed and remanded for a new sentencing hearing at which the State must elect which allied offense it will pursue against Toland.
{¶ 25} Convictions affirmed, sentence reversed and remanded for resentencing.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
MARY J. BOYLE, P.J., CONCURS;
LARRY A. JONES, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE OPINION
LARRY A. JONES, J., CONCURRING IN PART AND DISSENTING IN PART:
{¶ 26} Respectfully, I dissent as to the majority‘s resolution of Toland‘s sufficiency of the evidence challenge of the drug trafficking convictions under
{¶ 27}
{¶ 28} The evidence here demonstrated that, on December 7, 2009, Detective Robert McKay arranged a controlled buy of heroin from Toland. An informant
{¶ 29} A second controlled buy from Toland occurred the following day, December 8, 2009. This buy took place outside of a residence on East 74th Street. Toland exited the downstairs portion of the residence, met the informant at McKay‘s vehicle,2 and engaged in a hand-to-hand exchange with the informant. After the exchange, Toland went back into the downstairs portion of the residence. The informant had purchased two packets of heroin.
{¶ 30} The majority finds that Toland‘s “walking” or “traveling” to meet the informant for the sales and then “walking” away or back to the house after the sales constituted sufficient evidence of “delivery” or “transport” to support the drug convictions under
{¶ 31} In this case and in Simuel, the evidence demonstrated that drug sales took place. The sales constituted drug trafficking under
{¶ 32} In light of the above, I dissent as to the majority‘s finding that sufficient evidence supported the drug trafficking convictions under