STATE OF OHIO v. GREGORY LEN TRAMMELL II
CASE NOS. CA2016-11-220, CA2016-11-221, CA2016-11-222
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
10/16/2017
2017-Ohio-8198
M. POWELL, J.
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2013-12-1919
Neal D. Schuett, 121 West High Street, Oxford, Ohio 45056, for defendant-appellant
M. POWELL, J.
{¶ 1} Defendant-appellant, Gregory Len Trammell II, appeals his convictions in the Butler County Court of Common Pleas for possession of heroin, trafficking in heroin, possession of drug paraphernalia, and having weapons under disability.
{¶ 2} In March 2014, appellant pled guilty to trafficking in cocaine and possession of cocaine in Case No. CR2013-09-1415, and to possession of cocaine, attempted trafficking in heroin, and attempted tampering with evidence in Case No. CR2013-12-1919. Appellant was
{¶ 3} On June 15, 2015, appellant‘s parole officer, Kendra Katherman, received a tip that appellant was trafficking in heroin and had guns and heroin at his known residence on Millikin Street where he lived with his girlfriend Krystal Jackson (“Jackson“) and her children. The tipster was a woman who knew appellant and who had been inside the Milliken Street residence the day before. Acting on this information, Officer Katherman called appellant into her office for a random drug screen. Appellant tested negative for illicit substances. Subsequently, Officer Katherman accompanied by Hamilton Police Officer Brian Ungerbuehler drove to appellant‘s home to conduct a search, as authorized by the conditions of appellant‘s parole. Appellant was transported to the home, handcuffed in the back of Officer Ungerbuehler‘s cruiser. Appellant remained in the cruiser during the parole search.
{¶ 4} At the house, Officers Katherman and Ungerbuehler were met at the door by Jackson. Upon entering the home, the officers asked Jackson whether there was anything of concern in the home. Jackson replied there was marijuana. The officers then inquired about a safe. Jackson replied it was in the master bedroom. She then took the officers to the bedroom, removed a safe from underneath a dresser, and opened the safe with a digital code. Inside the safe were two handguns, a Jennings handgun and a Derringer handgun, four clear plastic baggies of heroin for a total weight of 45.6 grams (or about two ounces), and $1,677 in cash. The officers further observed a loaded SKS assault rifle inside a closet in the master bedroom. A search warrant for the residence was then obtained.
{¶ 5} Upon executing the search warrant, Hamilton Detective Greg Baker and Officer Ungerbuehler found two additional handguns, a Jimenez handgun and a Ruger handgun, ammunition, two digital scales, and additional cash in the master bedroom. The officers further found drug paraphernalia in the basement of the home, including a C-clamp, Inositol powder, and a blender. Of the five weapons found in the home, only the Ruger handgun was inoperable.1 The street value of the heroin found in the safe was about $4,500.
{¶ 6} Inside the house, the officers found men‘s clothing in the master bedroom and children‘s clothing and toys in the second bedroom. The men‘s clothing, which appeared to be in appellant‘s size, was located in the closet, on the floor, and on the side of the bed, and included baseball hats, bottoms, shirts, and “a lot of shoes.” The officers further found mail addressed to appellant in the master bedroom and the kitchen. One was a utility bill, the other from the Butler County Board of Elections. The officers found no evidence connecting any other adults to the house besides appellant and Jackson.
{¶ 7} Appellant was indicted in August 2015 on one count of possession of heroin, one count of trafficking in heroin, and four counts of having weapons under disability, all felonies, and one count of misdemeanor possession of drug paraphernalia. The matter proceeded to a jury trial on September 7, 2016. At trial, Officers Katherman and Ungerbuehler, Detective Baker, and Lieutenant Wade McQueen testified on behalf of the state; appellant testified on his own behalf.
{¶ 8} Officer Ungerbuehler testified appellant admitted that all of the items found in the house were his, including the weapons, and never indicated that the heroin, weapons, and cash belonged to someone else. Detective Baker testified that the four baggies of heroin found in the safe were packaged and prepared for sale, and that the drug paraphernalia
{¶ 9} As stated above, appellant remained in the cruiser during both searches. The cruiser was equipped with an audio-video recording device. During the search of the home, appellant was recorded talking to himself, specifically mentioning “five guns, two ounces of dope” and “the SK,” and lamenting as to why he had not removed the contraband from the house: “All you would have had done was take the SK, go get that, get them out of the safe, and take them somewhere. You gonna ruin the rest of your life for that mistake. *** We‘re talking about five guns, two ounces of dope, I‘m pretty scared.”
{¶ 10} Appellant was further recorded talking to Jackson and police officers. During the parole search, appellant repeatedly admitted to the police that everything in the house was his. By contrast, after Lieutenant McQueen advised appellant of his Miranda rights, appellant denied there were any drugs in the house, denied the cash was his, and stated there were only two guns in the house, including a Ruger handgun in the basement. On the other hand, appellant admitted that the scale and the men‘s clothing were his. Appellant further stated, “Everything in the house is mine. I just don‘t know where everything is. I wasn‘t living there, she was with another man.” While talking to Jackson, appellant can be heard stating, “You don‘t have to give them access to the safe. You did? Ah, that‘s a problem.” The recording was played to the jury during Lieutenant McQueen‘s testimony.
{¶ 11} At trial, appellant claimed that he, Jackson, and her two children had moved into the home only a month before the June 15, 2015 search. Appellant further claimed that other people had lived in the home, including Jackson‘s sister and “for a brief period of time, Timothy Ambach,” a drug dealer. Appellant testified that following a falling out with Jackson, he moved out of the house on June 12, 2015. Soon after, Ambach started living in the house. Appellant eventually reconciled with Jackson and moved back in the house in the
{¶ 12} Appellant admitted he bought the Ruger handgun ostensibly to protect himself from Ambach, but had it disabled as he could not possess a weapon as a convicted felon. Appellant denied trafficking in heroin and denied that the other four weapons, the heroin, and the men‘s clothing were his. Rather, appellant claimed that the Jimenez handgun belonged to Jackson, and that the other three weapons, the heroin, the cash, and the men‘s clothing all belonged to Ambach and had been left by Ambach when the latter moved out of the house.2 Appellant testified he called Ambach to come retrieve the weapons, drugs, and money, but that Ambach “did not show up.” Appellant admitted he knew that the Jimenez, Jennings, and Derringer handguns, the SKS rifle, and the heroin were in the house after he moved back on June 14, 2015.
{¶ 13} On September 8, 2016, the jury found appellant guilty as charged. The trial court merged all four counts of having weapons under disability into a single count of having weapons under disability, and merged the heroin possession count into the heroin trafficking count. On October 31, 2016, appellant was sentenced to an aggregate 11-year prison term in the case at bar. He was further sentenced for violating the terms of his community control in the two prior, unrelated cases, to wit: appellant was sentenced to an aggregate 24-month
{¶ 14} Appellant now appeals, raising four assignments of error. The third and fourth assignments of error will be addressed together.
{¶ 15} Assignment of Error No. 1:
{¶ 16} THE APPELLANT‘S RIGHT TO A FAIR TRIAL WAS PREJUDICED WHEN THE TRIAL COURT ABUSED ITS DISCRETION AND ADMITTED INADMISSIBLE HEARSAY EVIDENCE TO PROVE THAT MR. TRAMMELL WAS IN THE RESIDENCE PRIOR TO THE HOME SEARCH.
{¶ 17} During Officer Katherman‘s direct examination, the state elicited a single reference regarding the substance of the tip she had received and which led her to conduct a parole search of appellant‘s home. Specifically, Officer Katherman testified that what she found in appellant‘s home was exactly what was described in the tip. Then, in response to defense counsel‘s questions on cross-examination, Officer Katherman testified that the tipster was a woman known to the officer, the tipster had requested that her identity not be disclosed, and she placed credence in the tip due to her familiarity with the tipster. Defense counsel further established that Officer Katherman expected to find weapons and heroin in the home based upon the tip.
{¶ 18} The apparent purpose of the foregoing cross-examination was to suggest that Jackson, who lived in the house and was presumably aware of the presence of the weapons
{¶ 19} In his first assignment of error, appellant solely takes issue with Officer Katherman‘s testimony on redirect examination that the tipster saw appellant in the house the day before the search. Appellant asserts that the officer‘s testimony is inadmissible hearsay because it was offered to prove the truth of the matter asserted, that is, that appellant was in the house the day before the search uncovered weapons, heroin, and drug paraphernalia, “and, thus, that his defense that the weapons and heroin were not his was not credible.” The state does not dispute that the statement was hearsay but asserts it was allowed under the rule of curative admissibility, also known as the “opening the door” doctrine.3
{¶ 20} “Hearsay” is a statement, other than one made by the declarant while testifying at trial or a hearing, offered in evidence to prove the truth of the matter asserted.
{¶ 21} We decline to determine whether this hearsay testimony was allowed under the
{¶ 22} Appellant‘s first assignment of error is overruled.
{¶ 23} Assignment of Error No. 2:
{¶ 24} THE APPELLANT‘S RIGHT TO A SPEEDY AND FAIR TRIAL WAS PREJUDICED WHEN THE TRIAL COURT DENIED HIS MOTION TO DISMISS.
{¶ 25} Appellant argues the trial court erred in overruling his motion to dismiss the charges against him on speedy trial grounds. Appellant asserts he was not brought to trial within 270 days as required under
{¶ 27} The prosecution and the trial courts have a mandatory duty to try a defendant within the time frame provided by
{¶ 28} Following the denial of his motion to dismiss filed pursuant to
{¶ 29} Furthermore, appellant‘s brief merely asserts that “[e]ven with time tolled for defendant‘s motions, the State failed to bring Mr. Trammell to trial within 270 days. Therefore, Mr. Trammell‘s right to a speedy trial was violated[.]” An appellant has the burden of demonstrating error on appeal through an argument that is supported by citations to legal authority and facts in the record. See
{¶ 30} Appellant‘s second assignment of error is accordingly overruled.
{¶ 31} Assignment of Error No. 3:
{¶ 32} THE STATE PRESENTED INSUFFICIENT EVIDENCE TO CONVICT APPELLANT.
{¶ 33} Assignment of Error No. 4:
{¶ 34} APPELLANT‘S CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 35} In his third assignment of error, appellant argues his convictions for possession of heroin, trafficking in heroin, possession of drug paraphernalia, and having weapons under disability are not supported by sufficient evidence because the state failed to prove he knowingly controlled or possessed the drugs, weapons, and drug paraphernalia. In his fourth assignment of error, appellant argues his convictions for possession of heroin, trafficking in
{¶ 36} When reviewing the sufficiency of the evidence underlying a criminal conviction, an appellate court examines the evidence in order to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt. State v. Bradbury, 12th Dist. Butler No. CA2015-06-111, 2016-Ohio-5091, ¶ 16. 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, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.
{¶ 37} A manifest weight of the evidence challenge, on the other hand, examines the “inclination of the greater amount of credible evidence, offered at a trial, to support one side of the issue rather than the other.” Bradbury at ¶ 17. To determine whether a conviction is against the manifest weight of the evidence, the reviewing court must look at the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether in resolving the conflicts in the evidence, 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. Id. An appellate court will overturn a conviction due to the manifest weight of the evidence only in extraordinary circumstances when the evidence presented at trial weighs heavily in favor of acquittal. Id. at ¶ 18. A “determination that a conviction is supported by the manifest weight of the evidence will also be dispositive of the issue of sufficiency.” State v. Peyton, 12th Dist. Butler No. CA2015-06-112, 2017-Ohio-243, ¶ 48.
{¶ 38} Appellant was convicted of possession of heroin in violation of
[n]o person shall knowingly *** Prepare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance or a controlled substance analog, when the offender knows or has reasonable cause to believe that the controlled substance or a controlled substance analog is intended for sale or resale by the offender or another person.
{¶ 39} Appellant was also convicted of having weapons under disability in violation of
{¶ 40} A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature.
{¶ 41} Possession means “having control over a thing or substance, but may not be inferred solely from mere access to the thing or substance through ownership or occupation
{¶ 42} “An accused has ‘constructive possession’ of an item when the accused is conscious of the item‘s presence and is able to exercise dominion and control over it, even if the item is not within the accused‘s immediate physical possession.” State v. Jester, 12th Dist. Butler No. CA2010-10-264, 2012-Ohio-544, ¶ 25. Constructive possession may be proven by circumstantial evidence alone. Williams at ¶ 15. Absent a defendant‘s admission, the surrounding facts and circumstances, including the defendant‘s actions, are evidence that the trier of fact can consider in determining whether the defendant had constructive possession. Id.
{¶ 43} A person may knowingly possess or control property belonging to another; the state need not establish ownership to prove constructive possession. Williams, 2015-Ohio-2010 at ¶ 14. In addition, two or more persons may have possession of an object together if they have the ability to control it, exclusive of others. State v. Weckner, 12th Dist. Brown No. CA2001-06-009, 2002 Ohio App. LEXIS 1037, *6 (Mar. 11, 2002).
{¶ 44} Viewing the evidence in a light most favorable to the state, we find that circumstantial evidence shows that appellant had constructive possession of the drug paraphernalia. The record shows that the Milliken Street residence was appellant‘s given residence for parole purposes, the police found mail addressed to appellant in the home, appellant admitted to the police that the men‘s clothing found in the master bedroom was his, and there was no evidence connecting any other adults to the house besides Jackson and appellant. The record further shows that the bulk of the drug paraphernalia was in the basement of the house, two digital scales were found in the master bedroom, and appellant
{¶ 45} Upon a thorough review of the record, we further find the jury did not lose its way in concluding appellant was an occupant of the home and knowingly controlled or possessed the heroin and weapons. Given the presence of mail addressed to appellant in the house, appellant‘s admission to the police that the men‘s clothing found in the master bedroom was his, and his testimony that he moved back in the house on June 14, 2015, the day before the search, and subsequently spent the night there, the record shows that appellant lived in the house or at the very least was an occupant of the home. See Williams (an individual need not reside at a particular address to possess drugs found inside).
{¶ 46} The record further shows that appellant had constructive possession of the heroin and weapons. While appellant testified the heroin and three of the weapons belonged to Ambach, and claimed the Jimenez handgun belonged to Jackson, appellant also testified he knew that the heroin and weapons were in the house when he moved back on June 14, 2015, the day before the search. Appellant was thus conscious of the contraband. Williams, 2015-Ohio-2010 at ¶ 14. In addition, during the search of the house, appellant generally admitted to the police that everything in the house was his. The record further shows that appellant had access to the contraband while he was in the house, and that he had the ability to exercise dominion and control over the contraband, as evidenced by his professed attempt to return it to Ambach and his recorded lamentation he should have moved it out of the house.
{¶ 47} These facts, taken together, show that appellant knowingly exercised dominion and control over the heroin and weapons, even if only for a short time. The crucial issue is
{¶ 48} With regard to drug trafficking, “[n]umerous courts have determined that plastic baggies, digital scales, and large sums of money are often used in drug trafficking which constitute circumstantial evidence that appellant was using these items to commit that crime.” State v. Harry, 12th Dist. Butler No. CA2008-01-013, 2008-Ohio-6380, ¶ 50. See also State v. Kutsar, 8th Dist. Cuyahoga No. 89310, 2007-Ohio-6990; State v. Fain, 5th Dist. Delaware No. 06CAA120094, 2007-Ohio-4854; State v. Smith, 3d Dist. Union No. 14-01-28, 2002-Ohio-5051; and State v. Fry, 9th Dist. Summit No. 23211, 2007-Ohio-3240.
{¶ 49} The police found four clear plastic baggies of heroin for a total weight of 45.6 grams (or about two ounces) and $1,677 in cash in a safe in the master bedroom, two digital scales and additional cash in that bedroom, and drug paraphernalia in the basement of the home, including a C-clamp, Inositol powder, and a blender. The total amount of cash found in the bedroom was $1,841. Detective Baker testified that the four baggies of heroin found in the safe were packaged and prepared for sale, and that the drug paraphernalia found in the house was used in drug trafficking. During the search, appellant admitted to the police that the scale was his and lamented when he found out Jackson had given police access to the safe. These facts, taken together, show that appellant was knowingly involved in trafficking in heroin.
{¶ 50} In light of the foregoing, we find that appellant‘s convictions for heroin possession, trafficking in heroin, and having weapons under disability are not against the manifest weight of the evidence. Our determination that these convictions are supported by the weight of the evidence is also dispositive of the issue of sufficiency. Peyton, 2017-Ohio-
{¶ 51} Appellant‘s third and fourth assignments of error are overruled.
{¶ 52} Judgment affirmed.
RINGLAND, P.J., and PIPER, J., concur.