STATE OF OHIO, PLAINTIFF-APPELLEE, v. DEVIN J. WALKER, DEFENDANT-APPELLANT.
CASE NO. 13-15-42
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY
June 20, 2016
[Cite as State v. Walker, 2016-Ohio-3499.]
Appeal from Seneca County Common Pleas Court Trial Court No. 15-CR-0191
Judgment Affirmed in Part, Reversed in Part and Cause Remanded in Part
Date of Decision: June 20, 2016
APPEARANCES:
Kenneth J. Rexford for Appellant
Angela M. Boes for Appellee
{1} Defendant-appellant Devin Walker (“Walker”) brings this appeal from the judgment of the Court of Common Pleas of Seneca County entering a judgment of guilt on drug offenses and sentencing him to prison. Walker challenges 1) the denial of his motion for acquittal and 2) the effectiveness of his counsel. For the reasons set forth below, the judgment is affirmed in part and reversed in part.
Procedural History
{2} On September 16, 2015, the Seneca County Grand Jury indicted Walker on three counts: 1) Trafficking in Heroin in violation of
{3} On November 23, 2015, a sentencing hearing was held. Doc. 49. The trial court determined at that time that the second and third counts of the
First Assignment of Error
The trial court erred in denying the defense motion for acquittal as to the element of the claim of a juvenile being in the vicinity.
Second Assignment of Error
[Walker] was denied the effective assistance of counsel when defense counsel failed to effectively counter the State‘s DNA evidence.
Third Assignment of Error
[Walker] was denied the effective assistance of counsel when defense counsel in no way sought suppression of the fruits of a warrantless arrest of [Walker].
Fourth Assignment of Error
[Walker] was denied the effective assistance of counsel when defense counsel introduced hearsay evidence as to what Richard Wade had said without the ability to confront Mr. Wade.
Trial Testimony
{4} At trial, the State presented the testimony of seven witnesses. The first was Officer Brandon Bell (“Bell”) of the Fostoria Police Department. Bell testified that on July 30, 2015, he was notified by dispatch that a woman at a
{5} On cross-examination Bell testified that although he had gone to the apartment to remove people Dayton wanted to leave her residence, when he arrived, there was no one in the apartment. Tr. 122. Bell stayed to investigate after Dayton told him about the drugs. Tr. 122. Bell also testified that there were other items of clothing near the pants, but he did not know who owned them. Tr. 125. Bell also admitted that both he and Dayton had handled the bags of drugs
{6} Dayton testified second for the State. She testified that she had first met Walker, whom she knew as “Moes”, approximately two weeks before July 30, 2015. Tr. 142. During July of 2015, she was living in the residence with her boyfriend, Charles Puryear (“Puryear”). Tr. 142. When she called the police, it was to remove Puryear and Richard Wade (“Wade”) from the home because they were dealing drugs. Tr. 143. Dayton testified that she took Bell into the home, showed him the scale, and then picked up the pants and began pulling drugs out of the pocket. Tr. 144-45. Dayton was unable to initially recall who owned the pants at trial, but after refreshing her memory with her prior statement was able to do so. Tr. 145-46. According to Dayton, Walker was wearing the pants the last time she saw him. Tr. 147. Dayton also testified that she had seen the girl with Walker the first time he came to the residence. Tr. 148.
{7} On cross-examination Dayton testified that she called the police after she asked Puryear and Wade to leave the residence, but they had refused. Tr. 151. She also admitted that she had met someone she knew as “Wood” who was related to Wade and Puryear and that he had been at the residence a week before the police were called. Tr. 153. Dayton testified that she called the police because she knew that they were selling drugs and she was a “recovering addict”. Tr. 154. However, she admitted that when she called the police, she did not tell them about
{8} Detective Sergeant Donald Joseph of the Seneca County Sheriff‘s Department testified that he took the drugs to the Bureau of Criminal Investigation (“BCI”) for identification. Tr. 189. Megan Koentop (“Koentop”) testified that she was a forensic scientist in the drug chemistry section of BCI. Tr. 192. She
{9} Detective Gabriel Wedge (“Wedge”) testified that he was employed by the Fostoria Police Department, but was assigned to the Seneca County Drug Task Force. Tr. 210. On July 30, 2015, Bell contacted him about suspected drug trafficking. Tr. 212. Based upon what Bell told him, he obtained a search warrant and executed it at the residence. Tr. 213. Wedge identified photographs of the scene as well as items found during the search. Tr. 214-15. Wedge testified that finding scales, baggies, a broken plastic spoon, and multiple cell phones were indications of drug trafficking. Tr. 219-20. Wedge indicated that the approximate street value of the drugs found in the residence would be $5,500. Tr. 222. The amount of the drugs found would not typically be seen in a personal use case. Tr. 219.
{10} Wedge later got another search warrant to search the phones found at the scene, as well as a phone taken from Walker when he was arrested. Tr. 233. The records from the LG phone found at the scene disclosed Facebook chats
{11} When Walker arrived at the scene, he had a large amount of cash in his wallet, a Lucas County Adult Probation Department Card in the name of “Devin Mosley”, which was another name used by Walker, and a paystub showing that he had year to date earnings from a construction company for $1,974. Tr. 216-17. Walker was accompanied by a 16 year old girl when he came to the residence. Tr. 215. Walker was immediately arrested upon opening the door and at that time, the juvenile with him was within 30 feet of the drugs in the residence. Tr. 244.
{12} On cross-examination, Wedge testified that prior to that day, the drug task force had heard of Wade, but had no knowledge of Walker. Tr. 246. Wedge admitted that although he had overheard Dayton arguing with Wade about the money used to pay the rent, he had no knowledge of any text messages. Tr. 251-52. During the conversation he overheard, there was no mention of drugs at all. Tr. 252. Wedge also had no information to indicate that Dayton had been in contact with Walker. Tr. 251. Before executing the search warrant, the officers
{13} Detective Charles Boyer of the Tiffin Police Department testified that he transported DNA samples to the crime lab in Mansfield Ohio for DNA processing. Tr. 207-209. Dawn Fryback (“Fryback”) was a DNA forensic scientist with the Mansfield Police Forensic Lab. She testified via video deposition and identified Exhibit 1 as her report. The report indicated that Walker could not be excluded from the DNA mixture on the pants. Ex. 1. The probability of a randomly selected individual being included for statistical calculation was 1 in 592,400. Id. However he was excluded as the major donor as that came from a female profile not identified. Id. Walker also could not be excluded from the DNA mixture taken from the plastic bags, though that mixture contained the
{14} After Fryback‘s deposition was played, the State rested its case and the exhibits were admitted without objection. Tr. 303-306. Walker then made a motion for acquittal, which was denied. Tr. 307-310. Walker then presented the testimony of two witnesses. The first witness was Emily Rodriguez (“Rodriguez”), who was the female with Walker when he was arrested. Tr. 316. Rodriguez testified that she was a friend of Walker and that she had ridden with Walker and Wood the week before and dropped Wood off at the apartment. Tr. 314. At that time, Wood borrowed some clothes from Walker that were in the car, including the cargo pants. Tr. 314. Rodriguez testified that she had never been in the residence prior to the day of the arrest and that she had never seen Walker with drugs. Tr. 319. According to Rodriguez, Walker was working through the union in Lucas County as a commercial roofer. Tr. 315. On the day of the arrest, they were going to Fostoria to visit Walker‘s niece and then go shopping. Tr. 313. They stopped at the residence to pick up some belongings of Wood at the request of his family as he had died. Tr. 313. Walker got the keys to the residence from the family and that was the first stop they made after arriving in Fostoria. Tr. 317.
{16} The final witness was Dannell Williams (“Williams”) who was Rodriguez‘s mother. Tr. 331. She testified that Rodriguez and Walker started spending time together in June of 2015. Tr. 332. She never saw any indication that Walker was involved in any drug activity. Tr. 332. On July 28th, 2015, Walker was at her house. Tr. 332. On July 30, 2015, Rodriguez told her that she and Walker were going to Fostoria and then shopping. Tr. 333. She did not know that Rodriguez had previously been to Fostoria with Walker. Tr. 334. On cross-examination, she admitted that she was unaware of Walker‘s Facebook messages referencing drugs. Tr. 337. Following this testimony, Walker renewed his motion for acquittal, and it was again denied. Tr. 340-341.
Sufficiency of the Evidence
{17} Walker‘s first assignment of error alleges that the evidence was insufficient to prove the specification that Walker trafficked in drugs in the
{18} Walker was charged with three counts of trafficking in various drugs, all a violation of
(A) No person shall knowingly do any of the following:
* * *
(2) Prepare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance * * * when the offender knows or has reasonable cause to believe that the controlled substance * * * is intended for sale or resale by the offender or another person.
{19} In addition to the trafficking conviction, Walker was also convicted of specifications for trafficking in drugs in the vicinity of a juvenile. “An offense is ‘committed in the vicinity of a juvenile’ if the offender commits the offense within one hundred feet of a juvenile or within the view of a juvenile, regardless of whether the offender knows the age of the juvenile, whether the offender knows the offense is being committed within one hundred feet of or with view of the juvenile, or whether the juvenile actually views the commission of the offense.”
Since there was no evidence presented that the crime of trafficking in drugs occurred in the vicinity of a juvenile, the evidence was not sufficient to support the
Ineffective Assistance of Counsel
{20} The second, third, and fourth assignments of error all claim that Walker was denied effective assistance of counsel.
In evaluating whether a petitioner has been denied effective assistance of counsel, this court has held that the test is “whether the accused, under all the circumstances, * * * had a fair trial and substantial justice was done.” State v. Hester (1976), 45 Ohio St.2d 71, 74 O.O.2d 156, 341 N.E.2d 304, paragraph four of the syllabus. When making that determination, a two-step process is usually employed. “First, there must be a determination as to whether there has been a substantial violation of any of defense counsel‘s essential duties to his client. Next, and analytically separate from the question of whether the defendant‘s Sixth Amendment rights were violated, there must be a determination as to whether the defense was prejudiced by counsel‘s ineffectiveness.” State v. Lytle (1976), 48 Ohio St.2d 391, 396–397, 2 O.O.3d 495, 498, 358 N.E.2d 623, 627, vacated on other grounds (1978), 438 U.S. 910, 98 S.Ct. 3135, 57 L.Ed.2d 1154.
On the issue of counsel‘s ineffectiveness, the petitioner has the burden of proof, since in Ohio a properly licensed attorney is presumably competent. See Vaughn v. Maxwell (1965), 2 Ohio St.2d 299, 31 O.O.2d 567, 209 N.E.2d 164; State v. Jackson, 64 Ohio St.2d at 110–111, 18 O.O.3d at 351, 413 N.E.2d at 822.
State v. Calhoun, 86 Ohio St.3d 279, 289, 1999–Ohio–102, 714 N .E.2d 905. The failure to prove either 1) a substantial violation or 2) prejudice caused by the violation makes it unnecessary for a court to consider the other prong of the test. State v. Anaya, 191 Ohio App.3d 602, 2010-Ohio-6045, 947 N.E.2d 212, ¶ 25.
{22} Walker also argues that counsel was ineffective for not arguing that the level of probability on the DNA taken from the plastic bags containing the drugs and found in the pants’ pockets was too low to state with any certainty that Walker was the one who had handled the bags. This evidence, along with the fact that the DNA sample was a mixture of DNA belonging to multiple people, was known by the jury. Knowing the exact identity of others who may have had contact with the bag would not necessarily have changed the outcome of the case. DNA comparison in cases like this merely shows who may have had contact with an item and who definitely did not. The fact that Wood, Wade, or Puryear may have also touched the bags would not mean that Walker did not. Reasonable jurors could still have concluded that the pants belonged to Walker and that the
{23} In the third assignment of error, Walker claims his counsel was ineffective for not moving to suppress his arrest and the items found during the search of his person incident to arrest. “[T]he failure to file a motion to suppress constitutes ineffective assistance of counsel only when the record establishes that the motion would have been successful if made.” State v. Brown, 12th Dist. Warren No. CA2002-03-026, 2002-Ohio-5455, ¶ 11.
{24} Walker challenges his arrest claiming that the officers lacked probable cause to arrest him without a warrant. “When a felony has been committed, or there is reasonable ground to believe that a felony has been committed, any person without a warrant may arrest another whom he has reasonable cause to believe is guilty of the offense, and detain him until a warrant can be obtained.”
{25} Finally, Walker claims that his counsel was ineffective for introducing the hearsay statement regarding Wade stating that Walker would be coming to get the drugs. This statement was used to show that Walker was engaging in drug trafficking in the vicinity of a juvenile in that she would be present when he removed the drugs from the premises. However, as discussed above, no evidence was presented that Walker committed the offense of trafficking in drugs in the presence of a juvenile and the specifications are not supported by sufficient evidence. The evidence in support of the convictions for trafficking in drugs is the identification of the ownership of the pants by both the testimony of a witness and the DNA on the pants, the drugs found in the pants’ pockets, the multiple phones, the large amounts of cash found in the pants’ pockets and on Walker, the messages from the phones, the videos from the phone, and the DNA found on the baggies containing the drugs. This evidence outside of the statement made by Wade was more than sufficient for a reasonable juror to conclude that Walker had committed the offense of drug trafficking. Without an
{26} Having found error prejudicial to the appellant, the judgment of the Court of Common Pleas of Seneca County is reversed as to the findings that the crimes were committed in the vicinity of a juvenile. The judgment of the Court of Common Pleas of Seneca County is affirmed in all other aspects. The judgment is reversed and the case is remanded for resentencing.
SHAW, P.J., Concurs in Judgment Only
ROGERS, J., concurs.
/hls
Judgment Affirmed in Part, Reversed and Remanded in Part