STATE OF OHIO v. ROBERT WILCOX
Appellate Case No. 2013-CA-94
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
November 7, 2014
[Cite as State v. Wilcox, 2014-Ohio-4954.]
HALL, J.
Trial Court Case No. 13-CR-457A; (Criminal Appeal from Common Pleas Court)
Rendered on the 7th day of November, 2014.
RYAN A. SAUNDERS, Atty. Reg. #0091678, Clark County Prosecutor‘s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
Attorneys for Plaintiff-Appellee
ANTHONY S. VANNOY, Atty. Reg. #0067052, 130 West Second Street, Suite 1624, Dayton, Ohio 45402
Attorney for Defendant-Appellant
{1} Robert Wilcox appeals from his convictions on six offenses, which netted him at total of 20.5 years in prison. He alleges that his trial counsel rendered ineffective assistance, that the trial court should have merged three offenses for sentencing purposes, that the convictions are against the manifest weight of the evidence, that the sentence is too long, that he should not have to serve the imposed terms consecutively, and that his conviction for tampering with evidence is not supported by sufficient evidence. Only in the last allegation do we find merit. We therefore reverse the tampering conviction and affirm the rest of the judgment.
I. FACTS
{2} Around 11 p.m. one evening in June 2014, Shadon McCoy picked up Wilcox in her SUV to get a drink. When Wilcox got in, McCoy asked him if he was “dirty,” if he had any drugs on him. Wilcox did not answer, and McCoy did not pursue the matter. They first stopped at the house of one of McCoy‘s friends to see some puppies. She pulled up to the curb in front of the house and got out, leaving the vehicle running and Wilcox sitting in the passenger seat.
{3} Springfield police officers Tyler Elliott and Deric Nichols were patrolling the area around the house, an area that had high drug and crime activity, in a police van. They passed McCoy‘s SUV and noticed the running engine and the passenger. They circled around the block, and as the vehicle came into view, they saw a woman leave the house in front of which it was parked and get into the vehicle. The SUV pulled away, and the officers decided to follow. At an intersection, they saw the SUV make a left turn without signaling, so the officers decided to make a traffic stop. As soon as the SUV started to pull over, one officer
{4} Nichols and Wilcox “had a brief conversation and that was it.” (Id. at 143). Nichols then went back to the police van to check for warrants and to start on the driver‘s citation. When he got into the van, Nichols called K-9 Officer Mike Fredendall and asked him to bring his dog to their location because of, as Nichols said, “the suspicions [he] had and everything during that night.” (Id. at 145). Officer Fredendall arrived 15-20 minutes later. When Fredendall pulled up, Wilcox got out of the SUV and the dog went to work. Officer Elliott testified that Wilcox had sweat on his forehead and his eyes moved around quickly while the dog sniffed the vehicle. It did not take the dog long to alert on the passenger door. Nichols and Fredendall searched the vehicle and found in the glove box a clear softball-sized bag inside of which was 0.63 grams of crack cocaine and 94.99 grams of heroin, which had a street value of roughly $20,000. They also found a handgun under the driver‘s seat, toward the back-the area they earlier saw Wilcox reaching towards. Wilcox and McCoy were
{5} Wilcox was charged with trafficking in heroin, see
{6} McCoy took a plea deal to testify against Wilcox in exchange for a fifth-degree felony drug possession conviction. At his jury trial, she testified that, as the officers approached the SUV, Wilcox tried to give her a bag of drugs, but she pushed it back at him, refusing to take it. This bag, said McCoy, was the same bag that the officers found in the glove box. She testified that she did not see Wilcox put the bag into the glove box, nor did she see, or know about, the handgun until after police recovered it from her vehicle. McCoy also testified that while they were in the police van, after being arrested, Wilcox told her to stay quiet. She admitted that about three months before she and Wilcox were stopped she bought cocaine to sell.
{7} The jury found Wilcox guilty of all the charged offenses, and attached firearm specifications, with the exception of the charge of receiving stolen property (and its specification). The trial court merged the trafficking in and possession of heroin charges for sentencing purposes and the state elected to proceed on the trafficking charge. After imposing a prison term for each offense and each firearm specification, the court ordered Wilcox to
{8} Wilcox appealed.
II. ANALYSIS
{9} Wilcox assigns five errors to the trial-court proceedings. The first alleges that trial counsel rendered ineffective assistance. The second alleges that the trial court should also have merged the offenses of tampering with evidence, having weapons under disability, and improper handling of firearms in a motor vehicle. The third alleges that the convictions are against the manifest weight of the evidence. The fourth alleges that the sentence is too long and that the trial court should not have ordered him to serve the prison terms consecutively. The fifth alleges that the tampering-with-evidence conviction is not supported by sufficient evidence.
A. The Claim of Ineffective Assistance of Counsel
{10} The first assignment of error alleges that Wilcox‘s trial counsel rendered him ineffective assistance by not filing a motion to suppress the drugs and handgun. “Claims of ineffective assistance of counsel are assessed against the two part test of Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.” In re Lakes, 149 Ohio App.3d 128, 2002-Ohio-3917, 776 N.E.2d 510, ¶ 30 (2d Dist.). The claimant first must show that “counsel‘s performance was deficient.” Strickland at 687. Then the claimant must show that “the deficient performance prejudiced the defense.” Id.
{11} “The proper measure of attorney performance remains simply reasonableness under
{12} Wilcox contends that there is a reasonable probability that the evidence found during the traffic stop would have been suppressed because the officers unreasonably prolonged the traffic stop to allow for the dog sniff. “[W]hen the search of a vehicle occurs during a reasonable period of time for processing a traffic citation, i.e., during a period of lawful detention, a police officer need not have a reasonable articulable suspicion of criminal behavior other than the traffic infraction.” State v. Ramos, 155 Ohio App.3d 396, 2003-Ohio-6535, 801 N.E.2d 523, ¶ 12 (2d Dist.), citing State v. Loffer, 2d Dist. Montgomery No. 19594, 2003-Ohio-4980. We have said that a search is reasonable if it occurs within 20 minutes of a traffic stop. See State v. Dewitt, 2d Dist. Montgomery No. 23735, 2010-Ohio-6476, ¶ 45 (dog alerted less than 20 minutes after the traffic stop began, which is “within the normal amount of time for processing and issuing a traffic citation for a window tint violation“); State v. Pryor, 2d Dist. Montgomery No. 20800, 2005-Ohio-2770, ¶ 16 (dog sniff occurred about 20 minutes after traffic stop began, which “is not an unusual length of time for a traffic stop“). The length of a stop may lawfully be lengthened, however, if reasonable, articulable suspicion of criminal activity arises during the stop:
If during the initial detention to ask the contraband question, the officer ascertained reasonably articulable facts giving rise to a suspicion of criminal activity, the officer may then further detain and implement a more in-depth investigation of the individual. For example, at a sobriety checkpoint an officer who detects slurred speech would be justified in detaining the individual to perform a field test.
State v. Robinette, 80 Ohio St.3d 234, 241, 685 N.E.2d 762 (1997), citing State v. Eggleston, 109 Ohio App.3d 217, 671 N.E.2d 1325 (2d Dist.1996). We have concluded that a delay of 20-25 minutes for a drug sniff is justified if after the traffic stop a police officer obtains information that gives the officer “an enhanced suspicion of criminal activity.” State v. Rice, 2d Dist. Miami No. 2013-CA-5, 2013-Ohio-5056, ¶ 2.
{13} Here, the evidence shows that the time between the initial stop and dog‘s arrival on the scene was 15-23 minutes and shows that the dog quickly got to work and quickly alerted on the SUV. The evidence also shows that the scope of criminal activity that the officers suspected when they decided to stop the SUV expanded after the stop was initiated. Both officers testified that when they saw the passenger lean over they suspected a weapon. Officer Nichols: “It‘s a high drug area. We‘ve taken a lot of guns from that area; and to see someone reach over like that, it definitely seems suspicious.” (Tr. 141). And Officer Elliott: “He went down to the point that he could have been concealing something, which is a danger cue for me.” (Id. at 224). Indeed, Nichols agreed that he called the canine officer “because of the suspicions [he] had and everything during that night.” (Id. at 145).
{14} It is arguable here whether the dog sniff extended the traffic stop, and even if it did, the
{15} “[T]he failure to file a suppression motion is not per se ineffective assistance.” State v. Slaughter, 2d Dist. Montgomery No. 25270, 2013-Ohio-824, ¶ 19. “Failure to file a motion to suppress constitutes ineffective assistance of counsel only if, based on the record, the motion would have been granted.” (Citation omitted.) State v. Swanigan, 5th Dist. Richland No. 08A19, 2009-Ohio-978, ¶ 74. “[T]he burden of proving ineffectiveness is on the defendant.” State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985). ” ‘Where the record contains no evidence which would justify the filing of a motion to suppress, the appellant has not met his burden of proving that his attorney violated an essential duty by failing to file the motion.’ ” State v. Logan, 8th Dist. Cuyahoga No. 88472, 2007-Ohio-2636, ¶ 66, quoting State v. Gibson, 69 Ohio App.2d 91, 95, 430 N.E.2d 954 (8th Dist.1980). If there is a strong indication that had a motion to suppress been filed it would have been overruled, the strong presumption that counsel‘s performance constituted reasonable assistance is not overcome, and counsel is not required to perform a futile act. State v. Lodge, 2d Dist. Greene No. 2004 CA 43, 2005-Ohio-1908, ¶¶ 26-27. The evidence here does not show that the traffic stop was unlawfully prolonged, so counsel might reasonably have thought that filing a motion to suppress on this basis would be futile. Moreover, Wilcox has failed to demonstrate prejudice,
{16} The first assignment of error is overruled.
B. Merger
{17} The second assignment of error alleges that the trial court erred by not merging as allied offenses the offenses of tampering with evidence, having weapons while under disability, and improper handling of firearms in a motor vehicle. “[W]hen deciding whether to merge multiple offenses at sentencing pursuant to
{18}
(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant‘s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
{19} The analyses of two courts in cases analogous to the present one are helpful. In the first case, State v. Bray, 2d Dist. Clark No. 2010 CA 14, 2011-Ohio-4660, the defendant was convicted of having weapons while under disability, possessing a firearm in a liquor-permit premises, and carrying a concealed weapon. He had acquired the handgun on which these offenses were based two or three years before the evening on which he committed the offenses. This, we said, was sufficient to support the charge of having weapons while under disability. His later act of concealing the handgun constituted “a separate and distinct act from initially acquiring it.” Bray at ¶ 23. This concealment was an act separate from his act of entering the liquor-permit establishment with the handgun. In the second case, State v. Cowan, 8th Dist. Cuyahoga No. 97877, 2012-Ohio-5723, the defendant was convicted of felonious assault, having weapons while under disability, improper handling of firearms in a motor vehicle, and discharge of a firearm near a prohibited premises. “[E]ach involved a separate animus and could not result in the commission of each other under these factual circumstances,” concluded the appellate court, because the conduct underlying each offense occurred at different times. Cowan at ¶ 39. The offense of having weapons while under disability occurred when the defendant acquired the handgun, and the felonious assault occurred when he shot at the victim. The discharge and improper handling of the firearm occurred about an hour before the shooting, respectively, when the defendant fired the gun at the ground while sitting in a vehicle and when the defendant then drove away with the gun. Said the appellate court, the fact that the defendant used the gun he had acquired to commit the other offenses “does not absolve [him] of the criminal liability that arises solely from his decision to illegally possess the weapon[].” Id.
{20} Wilcox committed the offenses of having weapons while under disability, improper handling of firearms in a motor vehicle, and tampering with evidence with different conduct, at different times, and therefore with separate animuses. He committed the offense of having weapons while under disability when he (necessarily) acquired the gun before he got into the SUV. Wilcox committed the improper-handling offense when he brought the gun into the SUV, and the evidence the State presented in support of the tampering offense occurred when he hid the gun under the driver‘s seat. Therefore the trial court was correct not to merge these offenses.
{21} The second assignment of error is overruled.
{22} Skipping to the fifth assignment of error, it alleges that the tampering-with-evidence conviction is not supported by sufficient evidence. “A sufficiency of the evidence argument challenges whether the State has presented evidence on each element of the offense alleged to allow the case to go to the jury or sustain the verdict as a matter of law.” Dewitt, 2010-Ohio-6476, ¶ 8, citing State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997).
{23} Wilcox was convicted of tampering with evidence for hiding the handgun under the driver‘s seat, in violation of
{24} The Ohio Supreme Court recently considered the proof needed for a tampering conviction under
{25} The tampering offense has three elements: “(1) the knowledge of an official proceeding or investigation in progress or likely to be instituted, (2) the [impairment] * * * of the potential evidence, (3) the purpose of impairing the potential evidence‘s availability or value in such proceeding or investigation.” Id. at ¶ 11. The issue in Straley is whether a conviction ” ‘requires proof that the defendant impaired evidence in an investigation by tampering with
{26} Here, there was arguably an investigation in progress when Wilcox hid the handgun. The police officers’ testimony shows that when they saw Wilcox lean over they immediately suspected a weapon. This suggests, at best, that an investigation regarding Wilcox‘s possession of a weapon was initiated a split-second before he actually placed the handgun under the driver‘s seat. The problem is that there is no evidence that Wilcox knew about this investigation or knew that it was likely. Therefore a reasonable juror could not find that Wilcox‘s purpose in putting the handgun under the seat was to impair its availability in the officer‘s investigation. Given the Supreme Court‘s decision in Straley, we must conclude that the record here does not support a conviction for tampering with evidence.
{27} The fifth assignment of error is sustained.
D. The Manifest Weight of the Evidence
{28} The third assignment of error alleges that Wilcox‘s convictions-trafficking in heroin, possession of heroin, tampering with evidence, having weapons while under disability, improper handling of firearms in a motor vehicle, possession of cocaine-are against the manifest weight of the evidence. Wilcox argues that the weight of the evidence shows that these items belonged to McCoy and were in the SUV before he got in. The gun and drugs
{29} “A weight of the evidence argument challenges the believability of the evidence and asks which of the competing inferences suggested by the evidence is more believable or persuasive.” (Citation omitted.) Dewitt, 2010-Ohio-6476, ¶ 25. The manifest-weight test is familiar: ” ‘The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury 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, 678 N.E.2d 541 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist. 1983). Although a weight-of-the-evidence challenge
{30} We are concerned here with all of the convictions except that for tampering with evidence, which we have concluded is not supported by sufficient evidence. Wilcox fails to convince us that the jury should not have believed McCoy or the officers. His arguments are merely his own inferential conclusions, drawn from the testimony, that these witnesses were lying. But we see no reason why the jury needed to draw the same inferences. With McCoy‘s and the officers’ testimony, the manifest weight of the evidence is not against Wilcox‘s convictions.
{31} The third assignment of error is overruled.
E. Sentencing
{33} There is a statutory presumption in favor of concurrent sentences for most felony offenses, see
If multiple prison terms are imposed on the offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses while the offender * * * was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct.
(c) The offender‘s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime by the offender.
{34} “On appeals involving the imposition of consecutive sentences,
{35} The trial court here imposed these prison terms:
- 11 years for heroin trafficking, a first-degree felony;
- 3 years for tampering with evidence, a third-degree felony;
- 3 years for having weapons under disability, a third-degree felony;
- 18 months for improper handing of firearms in a motor vehicle, a third-degree felony;
- 12 months for cocaine possession, a fifth-degree felony; and
- 12 months for each firearm specification.
The court ordered concurrent service of the firearm-specification terms and consecutive service of the remaining terms, for a total prison term of 20.5 years. Of course, the total is now 17.5 years, given our ruling on the fifth assignment of error. At the sentencing hearing, the trial court reviewed Wilcox‘s “lengthy history of criminal convictions.” (Sentencing Tr. 12). Between 1993 and 2013, Wilcox was convicted on numerous drug charges, multiple theft charges, a charge of
7 Wilcox contends that consecutive sentences are disproportionate to his conduct or the danger he poses to the public. However we are unable to find that the trial court was clearly and convincingly wrong in its findings for imposing consecutive sentences, which is our standard of review. He also says that he was not selling drugs and that nobody was harmed by him. But Wilcox was found guilty of trafficking heroin, that is, guilty of “[p]repar[ing] for shipment, ship[ping], transport[ing], deliver[ing], prepar[ing] for distribution, or distribut[ing]” the heroin “know[ing] or ha[ving] reasonable cause to believe” that it “[wa]s intended for sale or resale,”
8 The fourth assignment of error is overruled.
9 The conviction for tampering with evidence is reversed and vacated. The rest of the judgment of conviction is affirmed. This case is remanded for the trial court to issue a
FROELICH, P.J., and FAIN, J., concur.
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Ryan A. Saunders
Anthony S. Vannoy
Hon. Richard J. O‘Neill