STATE OF OHIO, Plaintiff-Appellee, - vs - KHALEIM S. WAVER, Defendant-Appellant.
CASE NO. CA2015-08-155
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
7/25/2016
[Cite as State v. Waver, 2016-Ohio-5092.]
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2014-10-1512
John T. Willard, P.O. Box 35, Hamilton, Ohio 45012, for defendant-appellant
RINGLAND, J.
{1} Defendant-appellant, Khaleim S. Waver, appeals from the judgment of the Butler County Court of Common Pleas, finding him guilty of trafficking in heroin, possession of heroin, and engaging in a pattern of corrupt activity, and sentencing him to an aggregate, mandatory term of 30 years in prison. For the reasons that follow, we affirm the judgment of the trial court.
{2} In 2014, allegations surfaced that appellant, along with his sister, NaKeisha
{3} The heroin trafficking operation came to light when a person referred to at trial as “Confidential Informant 992” told the Butler Undercover Regional Narcotics Unit (“BURN Unit“) about appellant‘s drug activities and offered to work with the police. With CI 992‘s assistance, the BURN Unit investigated two apartments in the apartment complex at 692 Gordon Smith Blvd.: Apt. # 4, which was the home of appellant and Lindsay, and the apartment directly above it, Apt. # 8, which was the home of Panetta and Weber. The police also investigated the residence at 321 Washington Street where Keisha lived.
{4} As part of their investigation, the police arranged for CI 992 to make several controlled buys from appellant and his co-conspirators at their residences. Agent Herring would later explain at trial that the drug operation worked by having appellant or his co-conspirators “front” a person who agreed to sell heroin for them with a certain amount of the drug, meaning that appellant or his co-conspirators would give the person a certain amount of heroin without expectation of immediate payment. After the person sold the heroin, the person would return to the residence of appellant or one of his co-conspirators and “drop off”
{5} During the controlled buys or “money drops,” CI 992 was accompanied by either Agent Herring or Officer Chelsea LaRue,1 both of whom worked undercover during the controlled buys. Before each controlled buy or money drop, Agent Herring or Officer LaRue gave CI 992 recorded drug fund money or “marked money” to make the controlled buys or money drops, and outfitted CI 992 with a small, audio and visual recorder. Before each controlled buy or money drop, an officer would pat-down CI 992 and search CI 992‘s vehicle for contraband. After each controlled buy, Agent Herring or Officer LaRue and CI 992 would travel to another location, and Agent Herring or Officer LaRue would again search CI 992 for money and contraband. Agent Herring also would take possession of the recording device after each controlled buy or money drop, and then download the recording onto his laptop computer at the police station.
{6} On August 18, 2014, at 7:58 p.m., CI 992, who was accompanied by Officer LaRue, drove to Keisha‘s residence. Agent Herring was nearby with the surveillance team. CI 992 paid Lindsay $400 for heroin that CI 992 had received from Keisha the day before. Lindsay then provided CI 992 with another baggy of heroin capsules.
{7} On August 19, 2014, at 3:30 p.m., CI 992, accompanied by Agent Herring, returned to Keisha‘s residence and paid Keisha $500 for the heroin Lindsay had provided to CI 992 the day before. Keisha directed CI 992 to go to Weber‘s apartment, and told CI 992 that she would call ahead to Lindsay regarding the sale and Lindsay would tell Weber what amount of heroin to give CI 992. Keisha also told CI 992 that if CI 992 saw a BMW outside appellant‘s apartment, CI 992 should stop at appellant‘s apartment and appellant would tell her what to get. At 4:47 p.m., CI 992 met appellant at his apartment. Appellant told CI 992 to go upstairs to Weber‘s and Panetta‘s apartment where CI 992 would receive 100 capsules of
{8} On August 20, 2014, at 9:54 p.m., CI 992, accompanied by Officer LaRue, went to appellant‘s apartment. Agent Herring was again nearby with a surveillance team. CI 992 paid appellant for the heroin she had received the day before. Appellant made a phone call to an unidentified person and told the person “to put something together” for CI 992. Appellant also told the unidentified person there should be “ten and a half in the bag,” and ordered the other person to “take five out of the bag.” Agent Herring later testified at trial that based on his experience and training in narcotics, appellant‘s order to “take five out of the bag” meant “to cap up 5 grams,” which would produce 50 capsules of heroin.2
{9} On August 22, search warrants were executed simultaneously on all three residences. At appellant‘s residence, appellant, his girlfriend, and two children were present. Police found $3,900 in cash in appellant‘s bedroom, $500 of which was the marked money that had been provided to CI 992 for use in the controlled buys. In Panetta‘s and Weber‘s apartment, the police found 276 capsules of heroin that were packaged in multiple bags, along with a bag containing unpackaged heroin powder. The heroin was stored at a location in the apartment that was 30-40 feet away from appellant‘s apartment where the police had found two children.
{10} Appellant and his four co-conspirators were charged in a 26-count indictment. Appellant was specifically indicted on five drug-related counts: trafficking in heroin, a second-degree felony, in violation of
{11} At appellant‘s trial, the state presented a number of witnesses including Panetta, Agent Herring, and Officer LaRue, who testified to the facts related above. The state did not disclose the identity of CI 992 or use CI 992 as a witness at trial. The jury convicted appellant of all five of the principal charges against him.
{12} The trial court merged appellant‘s conviction on Count 18 with his conviction on Count 17, upon determining the offenses charged in those counts were allied offenses of similar import, and merged appellant‘s conviction on Count 20 with his conviction on Count 19 for the same reason. The trial court sentenced appellant to an aggregate 30-year mandatory prison term for his convictions on Counts 17, 19, and 21. Appellant was tried separately by the bench on the criminal forfeiture specifications attached to Counts 19 and 21, after appellant waived his right to a jury trial on the specifications and pled no contest to them. The trial court found appellant guilty of the specifications and issued forfeiture orders regarding appellant‘s BMW, GMC Yukon, and Honda, and his interest in the $3,900 in cash seized by police at the time of his arrest.
{13} Appellant now appeals and assigns the following as error:
{14} Assignment of Error No. 1:
{15} IT WAS ERROR AND AN ABUSE OF DISCRETION FOR THE COURT TO ADMIT INTO EVIDENCE DVDS THAT ALLEGEDLY WERE RECORDED 8/19 2014 [sic] AND IDENTIFIED AS EXHIBIT #85 AND EXHIBIT 106 THAT WAS ALLEGEDLY
{16} Assignment of Error No. 2:
{17} IT WAS ERROR TO ADMIT INTO EVIDENCE EXHIBITS OF ALLEGED MEASURED AMOUNTS OF HEROIN AS THERE WAS NO EXPERT TESTIMONY AS TO HOW MUCH OF THE POWDER WAS HEROIN AND HOW MUCH WAS FILLER AND NOT HEROIN WITHOUT SUCH MEASUREMENT IT WAS IMPOSSIBLE FOR A JURY TO MAKE A FINDING BEYOND REASONABLE DOUBT AS TO HOW MUCH HEROIN WAS IN THE EXHIBITS BY WEIGHT. [SIC]
{18} Assignment of Error No. 3:
{19} IT WAS ERROR TO ADMIT THE TESTIMONY OF A CODEFENDANT INTO EVIDENCE OF A CONSPIRACY WITHOUT INDEPENDENT PROOF OF A CONSPIRACY BEING FIRST SHOWN.
{20} Assignment of Error No. 4:
{21} THE APPELLANT IN THE INSTANT CASE HAD INEFFECTIVE ASSISTANCE OF COUNSEL.
{22} Assignment of Error No. 5:
{23} THE VERDICT IN THE INSTANT CASE WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND LACKED SUFFICIENT ADMISSIBLE EVIDENCE TO SUPPORT A CONVICTION.
{24} Assignment of Error 6:
Authentication of Videos
{26} Appellant presents three different arguments in his first assignment of error. He first argues the trial court erred by admitting into evidence the videos of the controlled buys and “money drops” because the videos were not properly authenticated as required by
{27} Generally, a “trial court‘s decision to admit or exclude evidence will not be reversed by a reviewing court absent an abuse of discretion.” State v. Jackson, 12th Dist. Fayette No. CA2011-01-001, 2011-Ohio-5593, ¶ 16. An abuse of discretion implies that the court‘s decision was unreasonable, arbitrary, or unconscionable. State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶ 130.
{28}
{29}
(B) Illustrations. By the way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming to the requirements of this rule:
(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.
* * *
(9) Process or system. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.
{30} In Midland Steel Prods. Co. v. U.A.W. Local 486, 61 Ohio St.3d 121, 129-130 (1991), the court stated, in pertinent part, as follows:
Under
Evid.R. 901(A) , Midland Steel could introduce the videotapes into evidence only upon a sufficient showing that they accurately depicted appellants’ misconduct. In Fisher v. State (1982), 7 Ark.App. 1, 5-6, 643 S.W.2d 571, 573-574, the court summarized two of the methods for authenticating photographic evidence like videotapes:“The admissibility of photographic evidence is based on two different theories. One theory is the ‘pictorial testimony’ theory. Under this theory, the photographic evidence is merely illustrative of a witness’ testimony and it only becomes admissible when a sponsoring witness can testify that it is a fair and accurate representation of the subject matter, based on that witness’ personal observation. * * * A second theory under which photographic evidence may be admissible is the ‘silent witness’ theory. Under that theory, the photographic evidence is a ‘silent witness’ which speaks for itself, and is substantive evidence of what it portrays independent of a sponsoring witness. * * *” (Citations omitted.) See, also, United States v. Rembert (C.A.D.C.1988), 863 F.2d 1023.
{31} Here, the videos that appellant claims were not properly authenticated were taken by the audio and visual recording device given to CI 992 before each of the controlled buys and money drops in this case. The videos included the transaction at Keisha‘s residence on August 18 (Ex. 13), the transaction at Keisha‘s residence on August 19 (Ex. 16), the transaction at appellant‘s apartment and Panetta‘s and Weber‘s apartment on August 19 (Ex. 17), and the transaction at appellant‘s apartment on August 20. The state contends that Agent Herring testified that “he had knowledge of all the videos” and that “each video was a fair and accurate depiction.” The state asserts this evidence was sufficient to meet “the low threshold for authentication,” and therefore there was no need for the state to call CI 992 as a witness to authenticate the videos.
{32} By asserting that Agent Herring “had knowledge of all the videos” and that each video was a “fair and accurate depiction,” the state is essentially arguing that it authenticated all of the videos under the pictorial theory of authentication of photographic evidence, including videos. A review of the evidence shows that while this theory of authentication may be applicable to the videos taken at appellant‘s apartment and Panetta‘s and Weber‘s apartment, it does not appear to apply to the residence of Keisha. Nevertheless, the “silent witness” theory of authentication is applicable to all of the videos admitted into evidence.
{33} Agent Herring testified that he was familiar with the layout inside 692 Gordon Smith Blvd. and appellant‘s apartment, and that he “walked in the front door” of Panetta‘s and Weber‘s apartment. Agent Herring also testified the video he retrieved from the August 19 transaction was a “true, fair and accurate recording of the incident as it happened[.]” Therefore, Agent Herring‘s testimony regarding Exhibits 16, 17, and 20, which contained
{34} As to Exhibit 13, which is the video of the August 18 transaction at Keisha‘s residence, it is not clear from the record whether Agent Herring was ever inside that residence. Agent Herring testified that he was nearby with the surveillance team when Officer LaRue accompanied CI 992 to Keisha‘s residence to drop off money and obtain more heroin capsules on August 18. However, Agent Herring did not testify that he ever went inside Keisha‘s residence, and while Officer LaRue testified that she accompanied CI 992 to Keisha‘s residence on August 18, Officer LaRue admitted that she did not enter the residence with CI 992, and the state did not ask LaRue to authenticate Exhibit 13. Nevertheless, all of the videos admitted in this case, including Exhibit 13, come within the auspices of
{35} In State v. Munion, 4th Dist. Scioto No. 12CA3520, 2013-Ohio-3776, narcotics officers were investigating allegations of the production and trafficking of methamphetamine at the residence of Crystal Collier. The officers enlisted the aid of a confidential informant and outfitted him with a video recording device. On his second visit to Collier‘s residence, the confidential informant stayed at the residence for about an hour and purchased some methamphetamine. The video captured Collier in the residence with the defendant in that case, Troy Munion, and Collier‘s two juvenile children. The following day, the officers executed a search warrant on Collier‘s residence and discovered many items used in the production of methamphetamine as well as an amount of methamphetamine. Munion and
{36} The Fourth District Court of Appeals rejected Munion‘s argument. The court first noted the protocol or procedure that Detective Koch and his department used when a confidential informant made a recorded controlled buy, which included searching the confidential informant for contraband before the transaction, outfitting the confidential informant with a recording device, and then once the transaction is completed, searching the confidential informant again for drugs or money, seizing any drugs or money found, and collecting the video recording device. The court noted that at the beginning and end of the video, Detective Koch appeared, stating the time, date and his identity. In disagreeing with Munion‘s argument that Collier was needed to authenticate the video since the video purportedly showed the inside of her residence where the confidential informant purchased the methamphetamine, the court noted that Detective Koch testified as to the procedure he used in producing the video and that the video is a true and accurate copy. The court determined that “[u]nder the illustrations of
{38} The only clear difference between this case and Munion involves the fact that, unlike the lead detective in Munion, Agent Herring failed to use the “date” and “time” features on the audio and visual recording device that he gave to CI 992 on the dates of the controlled buys or money drops in this case. Agent Herring explained at trial that at the time this case occurred, the device was new and he was not fully familiar with all of the features of the device. However, Agent Herring testified that he did write down in his notes the dates and times of the controlled buys. The absence of a date and time on the video recordings, alone, does not preclude a finding that the video recordings were properly authenticated, given the well-established principle that the threshold for authentication is low and does not require conclusive evidence. Freeze, 2012-Ohio-5840 at ¶ 65. Therefore, we conclude the state presented sufficient evidence to meet the “low threshold” necessary for authenticating the videos of the controlled buys and money drops in this case.
Right to Confrontation
{39} Appellant also argues his right to confront the witnesses against him was
Best Evidence
{40} Appellant also alleges the videos were edited by police, and after editing, transferred to DVDs, and further asserts that
{41} Appellant contends the state gave no “cogent” reason for not admitting the original videos and that “inconvenience for the prosecution is not a valid reason to ignore
{42} In light of the foregoing, appellant‘s first assignment of error is overruled.
Determining Weight of Controlled Substances with “Filler.”
{43} In his second assignment of error, appellant asserts the trial court erred by admitting into evidence exhibits that show the amounts of heroin involved, since there was no expert testimony as to how much of the substance was heroin and how much was “filler,” i.e., nonheroin and noncontrolled substances, thereby preventing the trier of fact from being able to determine beyond a reasonable doubt how much heroin was involved. However, the statute under which appellant was convicted does not require filler to be separated from the controlled substance, and it is not improper to include filler in the total amount charged. See
{44} We find cases like Smith and Bailey to be persuasive. This court is aware there is authority to the contrary and that this issue is currently before the Ohio Supreme Court. See State v. Gonzales, 6th Dist. Wood No. No. WD-13-086, 2015-Ohio-461, motion
{45} Appellant also contends the trial court erred in allowing Agent Herring to testify that heroin is “a very addictive drug and it has the potential to be very life-threatening due to the compound of mixtures and the unknown amounts of heroin that are sometimes distributed in the compound.” Appellant argues “the admission of such evidence” violated
{46} Plain error exists where there is an obvious deviation from a legal rule which affected the defendant‘s substantial rights, or influenced the outcome of the proceeding. State v. Barnes, 94 Ohio St.3d 21, 27 (2002). Therefore, appellant was required to demonstrate a “reasonable probability” that the error resulted in prejudice. Here, the exclusion of Detective Herring‘s testimony clearly would not have changed the result of these proceedings, since this information is generally well known.
{47} Appellant also argues the trial court “did not follow the law as set out in
Evid.R. 801(D)(2)(e) and Independent Proof of a Conspiracy.
{48} In his third assignment of error, appellant contends the trial court erred by allowing a co-conspirator to testify without first providing independent proof of the conspiracy, as required by
{49}
{50} In this case, appellant argues that a conspiracy was not established by independent evidence before Panetta, a co-conspirator, testified. However, in his brief, appellant fails to specifically argue what hearsay statements Panetta testified to at trial that required independent proof of a conspiracy in order to be admissible pursuant to
{51} We first note that, like any other witness, Panetta‘s testimony regarding her direct observations and actions was admissible, regardless of her status as a co-conspirator. See State v. Mauro, 2d Dist. Montgomery No. 9499, 1987 WL 14254, * 2 (July 14, 1987). Additionally, Panetta could testify to any statement made directly to her by appellant, as an admission by a party-opponent pursuant to
{52} Moreover, even if independent evidence of a conspiracy was not presented at
Ineffective Assistance
{53} In his fourth assignment of error, appellant argues his trial counsel provided him with ineffective assistance of counsel.
{54} To prevail on an ineffective-assistance claim, a defendant must show that his counsel‘s performance was deficient in that it fell below “an objective standard of reasonableness” and that he was prejudiced by that deficient performance in that there exists a “reasonable probability” that, but for counsel‘s deficient performance, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984). A “reasonable probability” is a probability sufficient to undermine confidence in the outcome of the proceedings. Id. at 694.
{55} Appellant first argues his trial counsel‘s performance was deficient because counsel “made no attempt” to compel disclosure of CI 992‘s identity and thus effectively denied him the right to confront all of the witnesses against him. However, CI 992 never testified against appellant, and none of CI 992‘s out-of-court statements was offered for the truth of the matter asserted. As a result, appellant was not entitled to confront CI 992, and thus his trial counsel‘s performance cannot be deemed deficient for this reason.
{56} Appellant next argues his trial counsel‘s performance was deficient because counsel failed to object to Panetta‘s testimony and failed to move to strike her testimony on the basis that Panetta was an alleged co-conspirator and no independent foundation had
{57} Appellant faults his trial counsel for not objecting to the admission of the state‘s expert reports on the substances seized in this case. However, there is no evidence in the record to show, nor any explanation offered by appellant to explain, how the decision of appellant‘s trial counsel not to object to the admission of these reports constituted a performance error or how appellant was prejudiced by this alleged performance error.
{58} Appellant contends his trial counsel‘s performance was deficient because he failed to object to a brief portion of Agent Herring‘s testimony that, appellant alleges, was hearsay. Appellant is referring to Agent Herring‘s testimony that his department had received information regarding appellant in the past, CI 992 approached him and expressed a desire to be a confidential informant, and CI 992 had information on appellant and his involvement in trafficking heroin. However, this testimony arguably was not hearsay, since it does not appear to have been admitted to prove the truth of the matter asserted, but merely to provide context regarding why the police began investigating appellant. Additionally, even if the testimony constituted hearsay, appellant has, again, failed to show how he was prejudiced by this testimony, because there is no reasonable probability that the outcome of his trial would have been different had his trial counsel objected to this testimony.
{59} Lastly, appellant points out that he objected to his trial counsel‘s representation of him during the trial and asked the trial court to postpone the trial so he could obtain new counsel. Appellant also contends his trial counsel refused to call a necessary witness on his behalf, thereby effectively depriving him of his Sixth Amendment right to call witnesses on his
{60} At the beginning of the second day of the trial, appellant informed the trial court he no longer wanted his counsel to represent him, and asked the trial court to postpone the trial so he could obtain a new lawyer. He claimed two of the state‘s witnesses, presumably, Agent Herring and Officer LaRue, had committed perjury. He also claimed that the videos of the controlled buys and money drops were presented “backwards” and “out of order” and that this “was the whole problem with the authentication.” He also claimed that he wanted his trial counsel to call Weber as a witness to testify regarding the actual order in which the videos were recorded. Appellant asked the trial court to declare a mistrial on the grounds of prosecutorial misconduct and misconduct by the state‘s witnesses on the basis of “tampering with the dates on the videos[,]” which, appellant claimed, enabled the state to show the videos out of order and in a light most favorable to the state.
{61} The trial court refused appellant‘s request to postpone the trial. However, the trial court told appellant that he would be permitted to substitute his current trial counsel with a different attorney of his choosing if the new attorney showed up in time. The trial court also told appellant that he would be permitted to call Weber to the stand if he chose to do so. The prosecutor stated that Weber was in the Butler County Jail. Appellant then informed the trial court that he wanted “to go on.” The trial court stated it would interpret appellant‘s statement as a withdrawal of his request to dismiss his current counsel, which appellant did not dispute. Appellant never called Weber as a witness at trial.
{62} There is nothing in the record to show that the videos of the controlled buys and money drops were presented out of order, as appellant contends. There is nothing in the record to show that appellant was prohibited from calling Weber as a witness during trial or that, if Weber had been called as a witness, he would have testified that the videos were presented out of order. Thus, appellant has failed to prove either the performance prong or
{63} In light of the foregoing, appellant‘s fourth assignment of error is overruled.
Sufficiency and Manifest Weight of the Evidence, Cumulative Error
{64} In his fifth assignment of error, appellant contends that a review of the entire record indicates there is insufficient admissible evidence to support a conviction on any of the counts against him, including engaging in a pattern of corrupt activity, and the convictions were against the manifest weight of the evidence. However, our review of the record shows the state presented ample evidence to support each element of each offense and accompanying specification with which appellant was charged and that appellant‘s convictions on those charges and specifications were not against the manifest weight of the evidence. Consequently, appellant‘s fifth assignment of error is overruled.
{65} In his sixth assignment of error, appellant alleges the errors committed at his trial were “so numerous and critical and cumulative” that it was “impossible” for him to receive a fair trial. However, appellant has failed to identify any reversible error at his trial, and therefore the cumulative error doctrine has no application to this case. Accordingly, appellant‘s sixth assignment of error is overruled.
{66} Judgment affirmed.
S. POWELL, P.J., and HENDRICKSON, J., concur.