State v. Morris ( 2023 )

[Cite as State v. Morris, 2023-Ohio-168.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-22-1025
Appellee Trial Court No. CR0201902771
v.
Lawrence Morris, Jr. DECISION AND JUDGMENT
Appellant Decided: January 20, 2023
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.
Dennis C. Belli, for appellant.
*****
PIETRYKOWSKI, J.
{¶ 1} Appellant, Lawrence Morris, Jr., appeals the judgment of the Lucas County
Court of Common Pleas, following a jury trial, convicting him of one count of possession
of cocaine. For the reasons that follow, we affirm.
I. Facts and Procedural Background
{¶ 2} On October 9, 2019, the Lucas County Grand Jury returned a four-count
indictment against appellant, charging him with one count of trafficking in cocaine, one
count of possession of cocaine, one count of receiving stolen property, and one count of
misdemeanor endangering children. The charges arose following the July 12, 2019
execution of a search warrant that uncovered two bags of cocaine inside the residence
located at 2110 Airport Highway, Toledo, Ohio.
{¶ 3} Following an initial plea of not guilty, appellant moved to suppress the
evidence seized from the residence. Appellant argued that the affidavit supporting the
search warrant failed to establish probable cause to believe that evidence would be found
at the residence.
{¶ 4} Toledo Police Detective Ryan Klump submitted the affidavit, in which he
detailed appellant’s history of drug encounters, including a traffic stop that Klump
participated in on October 23, 2018. During that stop, the vehicle appellant was driving
was discovered to have approximately 44 grams of cocaine. The affidavit further detailed
information from three confidential sources who observed appellant make hand to hand
transactions, and meet with people for short amounts of time, which Klump stated was
consistent with drug trafficking. Klump stated in the affidavit that the sources have
assisted him in criminal investigations for between one and four years, have provided
information that has led to the seizure of contraband, have provided information that has
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been verified as credible and accurate, and have assisted him in the arrest and conviction
of numerous narcotics traffickers. Notably, Klump used substantially identical language
to describe the credibility of each source.
{¶ 5} The sources identified appellant and his silver Dodge Ram truck, and
provided information that appellant resided at 2110 Airport Highway. The observations
from the confidential sources occurred between January and July 2019. Some of the
specific observations included source three informing Klump on June 11, 2019, that
appellant was observed trafficking cocaine; source one informing Klump on June 20,
2019, that appellant had just received 10 pounds of marijuana; and source three informing
Klump on July 5, 2019, that appellant had just sold two “zips” (ounces) of cocaine from
2110 Airport Highway. Klump also stated in his affidavit that during this time,
surveillance was conducted on 2110 Airport Highway, and appellant was observed
frequently entering and exiting the property, using his key to lock and unlock the
property, and parking his silver Dodge Ram truck in the garage.
{¶ 6} Following a hearing on the motion to suppress, the trial court denied
appellant’s motion, finding that there was “more than a substantial basis for a conclusion
of probable cause.”
{¶ 7} Thereafter, the matter proceeded to a three-day jury trial at which the state
called five witnesses. The first witness was Toledo Police Detective Robert Tyburski.
Tyburski assisted with the execution of the search warrant on July 12, 2019. Tyburski
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testified that no one was home when they entered. Tyburski first searched the kitchen
and discovered a revolver in a kitchen cabinet. Tyburski next searched the living room
and found a bankcard and an expired Ohio driver’s license belonging to appellant.
{¶ 8} The next witness to testify was appellant’s probation officer, Dave Schultz.
Schultz authenticated records from the probation department in which appellant reported
his residence as 2110 Airport Highway on monthly forms from May 2019 through
February 2020.
{¶ 9} The third witness to testify was Chadwyck Douglas, who works at the
Toledo Police Crime Lab. Douglas testified as an expert witness in the field of drug
analysis. Douglas testified that he tested two substances. One he identified as marijuana,
weighing 11.91 grams. The other substance he identified as cocaine hydrochloride
weighing 37.14 grams.
{¶ 10} The fourth witness was Kaitlyn Porter, who works at the Toledo Police
Forensic Lab. Porter testified that she test-fired the revolver, as well as a rifle recovered
from the scene, and both weapons were found to be operable.
{¶ 11} The last witness to testify for the state was Detective Klump. Klump
testified that he conducted surveillance on 2110 Airport Highway over 20 times as part of
a narcotics and drug trafficking investigation. Klump often observed appellant arrive at
the location, park his silver Dodge Ram truck in the garage, walk to the front door, and
unlock the front door with a key. In addition to appellant, Klump observed 10 to 20 other
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people coming and going from the residence, ranging in age from toddlers to pre-teens to
adults. Klump testified that the high amount of traffic is common for houses that are
used for drug trafficking.
{¶ 12} Klump also participated in a “trash pull” from the residence, and
discovered mail addressed to appellant at 2110 Airport Highway. Klump also discovered
a “ripped baggy,” which he testified was associated with drug trafficking.
{¶ 13} Klump then testified to the execution of the search warrant. Klump
testified that appellant was named in the warrant based upon Klump’s observation of him,
as well as the fact that Klump “received a lot of information that he was using 2110 to
traffic narcotics, and all my information was corroborated with my surveillance of the
location and Lawrence Morris throughout the City of Toledo.”
{¶ 14} When entry was made into the residence, no one was inside. Klump
testified that two large baggies of cocaine were found in the dining room, along with a
bowl containing cocaine residue, two scales, and some spoons for mixing drugs.
Specifically, the items were found in the center drawer of a built-in cabinet located under
a window. Klump identified the baggies of cocaine as the same cocaine that was tested
by Douglas. In the living room, in addition to appellant’s bank card and expired driver’s
license, the detectives found approximately $7,000 and a digital video recording system
used for surveillance. The $7,000 was found in a drawer below an armrest of the
sectional sofa, and was located next to a piece of mail addressed to L. Thomas, LLC, at
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2110 Airport Highway. Klump testified that through his investigation he learned that L.
Thomas, LLC, was owned by appellant. Upstairs, the detectives found a loaded AK-47
rifle leaning against the wall of a bedroom. Lastly, Klump testified that a prescription
bottle belonging to appellant was found at the residence. The prescription bottle listed
appellant’s address as being on Avondale Ave. in Toledo, Ohio, and allowed for one
refill until November 26, 2018.
{¶ 15} As the last part of his direct testimony, Klump testified regarding the
contents of the digital video recording system that was seized. The recording showed
appellant coming and going from the house on multiple occasions and at varying times
between May 26 and June 2, 2019. On a few occasions, appellant was carrying a
package, and on at least one occasion, appellant appeared to be carrying a firearm. In
addition to appellant’s coming and going, the recording showed several other adults, and
some children, entering and exiting the house.
{¶ 16} On cross-examination, Klump was asked about a shooting that occurred at
2110 Airport Highway on May 21, 2019, which Klump alluded to in his direct testimony.
The police report from that shooting listed appellant as a victim, but also listed Marcus
Matlock as a second victim and a resident of 2110 Airport Highway.
{¶ 17} Klump also testified on cross-examination that the digital video recording
showed another individual, not appellant, coming and going from the residence and using
a key to enter the house. In addition, the video showed at least one other individual
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entering the house with some sort of bag. Klump also admitted that he did not
photograph or take other documents or pieces of mail, which he admitted were present in
the residence and belonged to someone else. Further, Klump agreed that the last time
appellant was observed at 2110 Airport Highway was June 21, 2019, but the search
warrant was not executed until July 12, 2019.
{¶ 18} On the subject of confidential informants, Klump confirmed that he used
confidential informants as part of his investigation, but testified that none of the
confidential informants ever participated in a controlled buy or purchased cocaine from
appellant, and none of them purchased cocaine from 2110 Airport Highway. Klump also
agreed that the search warrant affidavit does not state that any of the confidential
informants had ever been inside 2110 Airport Highway or witnessed appellant
conducting a drug transaction inside 2110 Airport Highway.
{¶ 19} On redirect examination, Klump was asked about his use of confidential
informants in the following exchange:
Q. And in relation to this case did you use one confidential
informant or multiple?
A. Multiple.
Q. And in general, do you recall what if any information they
provided you?
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A. They provided me with observing Lawrence Morris making
drug deals and giving me information about when he received drugs or
cocaine from other drug dealers.
Q. Now, the information that you received from these
confidential informants, did you talk to them individually or together?
A. Individually.
Q. Did their information that one informant provide you match
or consistent with the information that another informant provided you?
A. Yes.
Q. And then that information that they provided you was that
consistent with the investigation that you conducted?
A. Yes.
Q. And that would be both surveillance that you conducted as
well as surveillance by other officers?
A. Yes.
Q. And the trash pull that was conducted on May 17th, 2019?
A. Yes.
Q. You also indicated that you had reviewed previous histories
or previous contacts, correct?
A. Yes.
8.
Q. Was the information that the confidential informants provided
you consistent with prior contact, police contact with Mr. Morris?
A. Yes.
***
Q. Now, [defense counsel] also asked you if there was any
information that a confidential informant had been inside of 2110 Airport
Highway included in your warrant, correct?
A. Correct.
Q. Phil, I’m going to hand you Defendant’s Exhibit B which
again is a copy of your search warrant. Detective, do you recall if prior to
executing the warrant on June -- I apologize, July 12th of 2020 -- 2019, did
you receive any information about what the contents inside of that home
would have been approximately around July 5th of 2019?
A. July 5th I received information from a CI about Lawrence
Morris receiving two zips or two ounces of cocaine.
Q. And was it receiving or does it say sold two zips?
A. I’m sorry, sold two zips or two ounces of cocaine out of 2110
Airport Highway.
At no time did appellant object to the above testimony.
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{¶ 20} On re-cross examination, Klump clarified that his search warrant affidavit
did not say that the confidential informant actually witnessed appellant selling two zips of
cocaine out of 2110 Airport Highway.
{¶ 21} Following its presentation of evidence, the state of Ohio rested. Appellant
moved for an acquittal pursuant to Crim.R. 29. The trial court granted appellant’s motion
as it pertained to the counts of receiving stolen property and endangering children. The
trial court denied appellant’s motion as to the counts of trafficking in drugs and
possession of drugs, and the trial continued on those two counts.
{¶ 22} Appellant then called one witness in his defense. Marcus Matlock testified
that he is appellant’s brother, and that he lived with appellant at 2110 Airport Highway in
the spring and summer of 2019. Matlock testified that his cousin also lived with them
during that time. Matlock moved out of the house in July 2019, before the search warrant
was executed. Matlock testified that while he lived at 2110 Airport Highway, he received
mail there. Matlock also testified that he had an old Ohio driver’s license listing his
address as 2110 Airport Highway. Matlock testified that after he moved out, there were
still other individuals other than appellant that lived at the residence and that had keys for
the residence.
{¶ 23} Matlock testified that on May 21, 2019, two separate drive-by shootings
occurred at the residence. After the shootings, Matlock continued to reside at the
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residence with appellant and their cousin, but they would not stay for long periods of time
because they did not know who had shot at them.
{¶ 24} Matlock lived at 2110 Airport Highway for approximately one year. While
he lived there, it was not uncommon for appellant to be gone for a few days or even for a
week at a time. Matlock testified that appellant would stay with a female friend.
Matlock testified that it was also not uncommon for other individuals to stay the night or
for a few days at the house.
{¶ 25} Matlock testified that other than marijuana, he never observed drugs inside
of the residence, never observed anyone drop off any quantity of drugs, and never
observed appellant sell any type of drugs.
{¶ 26} On cross-examination, Matlock testified that appellant owned the home at
2110 Airport Highway, and maintained that as his legal residence, although he lived there
“off and on.” Matlock testified that as of the trial, appellant continued to live at 2110
Airport Highway.
{¶ 27} Following Matlock’s testimony the defense rested. Appellant again moved
for an acquittal pursuant to Crim.R. 29 on the remaining counts, which the trial court
denied. The trial court then instructed the jury and the parties presented their closing
arguments. Relevant here, the state, in closing, referenced and relied upon “those
confidential informants [that] told [Klump] that Lawrence Morris was involved in drug
trafficking throughout the City of Toledo, both in a silver Dodge Ram as well as from the
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residence of 2110 Airport Highway,” and that the information provided was consistent
amongst the confidential informants and was consistent with the results of his
investigation.
{¶ 28} Thereafter, the jury returned with a verdict of not guilty as to the count of
trafficking in drugs, and a verdict of guilty as to the count of possession of drugs in
violation of R.C. 2925.11(A) and (C)(4)(E), a felony of the first degree. At sentencing,
the trial court ordered appellant to serve an indefinite prison sentence of four to six years.
II. Assignments of Error
{¶ 29} Appellant has timely appealed his judgment of conviction, and now asserts
five assignments of error for our review:
1. The trial court erred when it denied defendant-appellant’s motion
for a judgment of acquittal as to the count of possession of cocaine at the
close of the state’s case.
2. Defendant-appellant’s conviction for possession of cocaine is not
supported by sufficient evidence to satisfy the requirements of the due
process clause of the Fourteenth Amendment to the United States
Constitution.
3. The trial court erred in denying defendant-appellant’s motion to
suppress cocaine that was seized by law enforcement officers pursuant to a
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search warrant that was issued and executed in violation of his rights under
the Fourth and Fourteenth Amendments to the United States Constitution.
4. The prosecutor violated the Rules of Evidence and deprived
defendant-appellant of his rights under the due process and confrontation
clauses of the Sixth and Fourteenth Amendments to the United States
Constitution by eliciting testimonial statements of absent informants and
urging the jury to consider the content of the statements as substantive
proof of guilt.
5. Defendant-appellant was denied his right to the effective
assistance of counsel, as guaranteed by the Sixth and Fourteenth
Amendments to the United States Constitution, due to the combined
prejudicial impact of multiple instances of deficient performance.
III. Analysis
{¶ 30} For ease of discussion, we will address appellant’s assignments of error out
of order, beginning with his third assignment of error.
A. Motion to Suppress
{¶ 31} In his third assignment of error, appellant argues that the trial court erred
when it denied his motion to suppress the evidence seized pursuant to the search warrant.
{¶ 32} Appellate review of a trial court’s denial of a motion to suppress presents
mixed questions of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-
13.
5372, 797 N.E.2d 71, ¶ 8. “When considering a motion to suppress, the trial court
assumes the role of trier of fact and is therefore in the best position to resolve factual
questions and evaluate the credibility of witnesses.” Id. “Consequently, an appellate
court must accept the trial court’s findings of fact if they are supported by competent,
credible evidence.” Id. “Accepting these facts as true, the appellate court must then
independently determine, without deference to the conclusion of the trial court, whether
the facts satisfy the applicable legal standard.” Id.{¶ 33} The Fourth Amendment to the United States Constitution, and Article I,
Section 14 of the Ohio Constitution, prohibit unreasonable searches and seizures, and
provide that “no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the persons or
things to be seized.” In this case, appellant argues that the search warrant affidavit was
insufficient to establish probable cause.
In determining the sufficiency of probable cause in an affidavit submitted
in support of a search warrant, “[t]he task of the issuing magistrate is
simply to make a practical, common-sense decision whether, given all the
circumstances set forth in the affidavit before him, including the ‘veracity’
and ‘basis of knowledge’ of persons supplying hearsay information, there is
a fair probability that contraband or evidence of a crime will be found in a
particular place.”
14.
State v. George, 45 Ohio St.3d 325, 544 N.E.2d 640 (1989), paragraph one of the
syllabus, quoting Illinois v. Gates, 462 U.S. 213, 238-239, 103 S.Ct. 2317, 76 L.Ed.2d
527 (1983).
In reviewing the sufficiency of probable cause in an affidavit submitted in
support of a search warrant issued by a magistrate, neither a trial court nor
an appellate court should substitute its judgment for that of the magistrate
by conducting a de novo determination as to whether the affidavit contains
sufficient probable cause upon which that court would issue the search
warrant. Rather, the duty of a reviewing court is simply to ensure that the
magistrate had a substantial basis for concluding that probable cause
existed. In conducting any after-the-fact scrutiny of an affidavit submitted
in support of a search warrant, trial and appellate courts should accord great
deference to the magistrate’s determination of probable cause, and doubtful
or marginal cases in this area should be resolved in favor of upholding the
warrant.
Id. at paragraph two of the syllabus, following Illinois v. Gates.
{¶ 34} Appellant first argues that the search warrant affidavit focuses on
allegations that appellant is a drug dealer, but does not provide information establishing
that evidence of a crime would be found at 2110 Airport Highway. Appellant relies on
the principle that “[t]he critical element in a reasonable search is not that the owner of the
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property is suspected of crime but that there is reasonable cause to believe that the
specific ‘things’ to be searched for and seized are located on the property to which entry
is sought.” Zurcher v. Stanford Daily, 436 U.S. 547, 556, 98 S.Ct. 1970, 56 L.Ed.2d 525(1978). However, the affidavit does contain information that establishes a fair probability
that evidence of a crime would be found at 2110 Airport Highway. Specifically, in
addition to information implicating appellant as a drug dealer who resides at 2110 Airport
Highway, the affidavit stated that detectives found torn baggies, which are consistent
with drug trafficking, in garbage recovered from that address. Further, the affidavit
stated that appellant was observed coming and going from the residence numerous times
throughout the day, which the affiant explained was consistent with drug trafficking.
Finally, the affiant received information from source three that appellant had just sold
two ounces of cocaine out of 2110 Airport Highway. From this information, we hold that
the magistrate had a substantial basis for concluding that probable cause existed.
{¶ 35} Appellant next challenges the magistrate’s reliance on some of the
information in the affidavit, specifically the information from source three that appellant
had just sold two ounces of cocaine out of the residence. Citing State v. Williams, 173
Ohio App.3d 119, 2007-Ohio-4472, 877 N.E.2d 717 (6th Dist.), appellant argues that the
affidavit did not adequately set forth the basis for determining that source three was
reliable. In Williams, this court recognized that “Ohio courts have found probable cause
to issue a search warrant under a variety of circumstances, but only when they have found
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the presence of some indicia of veracity of the informant or the reliability of the
information material to the probability of evidence of crime.” Id. at ¶ 18. In that case,
this court found insufficient the affiant’s statement that his investigation confirmed drug
activity, and that the sources have been proven reliable. Id. at ¶ 17. This court reasoned,
The affidavit contained no statements providing indicia of either the
veracity of the informants or the basis of their knowledge. We have no idea
how the officer confirmed the drug activity or why the sources have been
proven reliable. “Filtering the hearsay statement of an informant through a
law enforcement agency establishes neither the truth of the statement nor
the reliability of the informant.” State v. Dalpiaz, 151 Ohio App.3d 257,
270, 2002-Ohio-7346, 783 N.E.2d 976, ¶ 43 [(11th Dist.)]. The officer’s
conclusions, not the required indicia of veracity or reliability, were
presented to the magistrate.
Id.{¶ 36} Notably, the Williams court distinguished several cases where the affiant’s
statement was sufficient. For example, in State v. Nicholson, 6th Dist. Erie No. E-99-
083, 2001 WL 575050, *2 (May 25, 2001), the affiant attested that “the informant had
proven to be ‘extremely reliable’ over the past two years and had provided information
that led to the successful execution of fifteen to twenty search warrants.” In that case, the
affiant also provided additional information supporting the veracity of the informant.
17.
Likewise, in State v. Dukes, 6th Dist. Sandusky No. S-00-031, 2001 WL 227057, *1
(Mar. 9, 2001), the affidavit stated that the “informant ha[d] supplied [Detective] Swartz
with information that * * * resulted in the execution of several search warrants that led to
numerous arrests and eventual convictions * * * [and] supplied [Detective] Swartz with
other non drug related information in the past that proved to be true and accurate.”
{¶ 37} Here, similar to Nicholson and Dukes, the affidavit establishes source
three’s reliability by stating,
Source three has assisted this affiant in criminal investigations for over a
year. Source three has provided information that has lead (sic) to seizure of
narcotics, firearms, materials consistent with drug trafficking, and U.S.
currency derived from illegal drug sales. Source three has provided
information that has proven to be independently verified as creditable and
accurate by other confidential sources, other law enforcement officers, and
law enforcement and open source databases. Source three has assisted this
affiant in the arrest and conviction of numerous narcotics traffickers.
Source three fears for her/his safety and must remain silent and anonymous
for safety reasons.
{¶ 38} Appellant, however, contends that this statement in the affidavit should be
given little weight because it is boilerplate language that the affiant similarly uses for
source one and source two. While appellant is correct that the affiant uses the same
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language for all three sources, that fact does not make the affiant’s statements untrue.
Alternatively, appellant contends that source three’s statement should be discounted
because it does not reveal the basis for the informant’s knowledge. But, a reasonable
inference from source three’s statement is that source three was present at the transaction
because source three knew appellant “just sold 2 ‘zips’ or ounces of cocaine out of 2110
Airport Hwy.” (Emphasis added). See State v. Long, 2020-Ohio-4090, 157 N.E.3d 362,
¶ 31 (6th Dist.) (“[P]robable cause for a search warrant can be based on reasonable
inferences drawn from information in the affidavit.”). Thus, we conclude that the
affidavit contains indicia of the veracity of source three and the reliability of the
information.
{¶ 39} In sum, taking a common sense approach, and affording deference to the
issuing magistrate, we hold that the affidavit contains a sufficient basis to conclude that
probable cause existed to believe that evidence of drug trafficking would be found at
2110 Airport Highway. Therefore, we hold that the trial court did not err in denying
appellant’s motion to suppress the evidence seized pursuant to the search warrant.
{¶ 40} Accordingly, appellant’s third assignment of error is not well-taken.
B. Sufficiency of the Evidence
{¶ 41} In his first assignment of error, appellant argues that the trial court erred in
denying his Crim.R. 29 motion for an acquittal following the state’s presentation of
evidence. In his second assignment of error, appellant argues that his conviction was
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based upon insufficient evidence. Both assignments of error present the same standard of
review. See State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37
(“A motion for acquittal under Crim.R. 29(A) is governed by the same standard as the
one for determining whether a verdict is supported by sufficient evidence.”). “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, 574 N.E.2d 492(1991), paragraph two of the syllabus. For our purposes, appellant’s first and second
assignments of error differ only in that his first assignment of error considers just the
evidence produced by the state, whereas his second assignment of error considers the
state’s evidence as well as the evidence produced by the defense.
{¶ 42} Appellant was found guilty of possession of cocaine in violation of R.C.
2925.11(A), which provides that “No person shall knowingly obtain, possess, or use a
controlled substance or a controlled substance analog.” Specifically, appellant was
convicted of possessing cocaine in an amount exceeding twenty-seven grams, but less
than one hundred grams, which is a felony of the first degree. R.C. 2925.11(C)(4)(e).
{¶ 43} Appellant argues that the state failed to produce evidence showing that he
knowingly possessed the cocaine. “A person acts knowingly, regardless of purpose,
when the person is aware that the person’s conduct will probably cause a certain result or
will probably be of a certain nature. A person has knowledge of circumstances when the
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person is aware that such circumstances probably exist.” R.C. 2901.22(B). “‘Possess’ or
‘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 of the
premises upon which the thing or substance is found.” R.C. 2925.01(K).
{¶ 44} Possession may be actual or constructive. “Actual possession occurs when
the defendant has the items within his immediate physical control, whereas constructive
possession occurs when the defendant is able to exercise dominion and control over an
item, even if the individual does not have the item within his immediate physical
possession.” State v. Shelby, 2019-Ohio-1564, 135 N.E.3d 508, ¶ 24 (6th Dist.), citing
State v. Fykes, 6th Dist. Wood No. WD-07-072, 2009-Ohio-2926, ¶ 36. Since the drugs
were found in appellant’s home while he was not present, this case involves a question of
constructive possession. “In order for constructive possession to exist, there must be
evidence demonstrating that the defendant was conscious of the presence of the object.”
Id. “A court must look at all of the attendant facts and circumstances in order to
determine if a defendant knowingly possessed a controlled substance.” Id.{¶ 45} Beginning with appellant’s first assignment of error, appellant contends
that the state failed to produce any evidence of possession other than appellant’s mere
access to the cocaine through his ownership and occupation of the residence at 2110
Airport Highway. In so arguing, appellant relies on several cases.
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{¶ 46} In State v. Haynes, 25 Ohio St.2d 264, 267 N.E.2d 787 (1971), the Ohio
Supreme Court reversed a conviction for possession of marijuana that was found in an
area ordinarily accessible to all tenants. The court reasoned that the evidence was
insufficient to establish possession where the only evidence produced at trial was that the
defendant was the lessee of the house, and the uncontroverted evidence showed that the
house was occupied by several persons and the defendant had not occupied the house for
a week prior to the search. Id. at 270-271. Notably, the Ohio Supreme Court recognized
that the trial did not contain any of the evidence alleged in the search warrant that a
named informant purchased marijuana from the defendant at the house. Id. at 270.
{¶ 47} In State v. Swalley, 11th Dist. Ashtabula No. 2010-A-0008, 2011-Ohio-
2092, the Eleventh District reversed a conviction for possession of chemicals for the
manufacture of drugs. In that case, various items used in the manufacturing of
methamphetamine were found in a laundry basket located behind a couch in the living
room. Additional items were found in the garage, and in a garbage can located on the
front porch of the four-unit apartment. The defendant, Swalley, had just moved into the
apartment only a day or two before the search was executed, and was sleeping on the
couch. The apartment was leased by a different individual, who often offered a place to
stay to his friends, like Swalley. Just before Swalley moved in, a third individual had
moved out. On appeal, the Eleventh District, in a 2-to-1 decision, held that the record did
not contain sufficient evidence as to the elements of possession of chemicals for the
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manufacture of drugs. The court reasoned that Swalley did not have exclusive control
over or access to where the items were found. Id. at ¶ 73.
{¶ 48} Appellant also relies on State v. Pumpelly, 77 Ohio App.3d 470, 602
N.E.2d 714 (12th Dist.1991). In that case, Pumpelly challenged the admission of hearsay
testimony from her brother, in which her brother stated that Pumpelly lived in the
apartment, was a cocaine addict, and was absent from the apartment at the time of the
search because she was suffering from a cocaine overdose. Id. at 475. In determining
that the admission of the hearsay testimony constituted plain error, the Twelfth District
found that the only other evidence of Pumpelly’s possession of the small amount of
cocaine and drug paraphernalia in the apartment were rent receipts in Pumpelly’s name in
the room in which the cocaine was discovered; no evidence placed Pumpelly in the
apartment at or near the time the cocaine was found. Id. at 476.
{¶ 49} Each of these cases are distinguishable. In this case, appellant listed 2110
Airport Highway as his residence on his probation forms. In addition, on numerous
occasions appellant was observed parking his car in the garage, and using a key to enter
and exit the home. Appellant’s bank card and expired driver’s license were found in the
home, as well as legal documents and mail addressed to him at that address. Thus, the
evidence is sufficient to establish that appellant resided at 2110 Airport Highway.
Notably, unlike Haynes and Pumpelly, there was not uncontroverted evidence that
appellant had not been present at the residence for some amount of time before the search
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was conducted. While Klump testified that he did not observe appellant entering or
exiting the home for the three weeks before the search warrant was executed, Klump did
not testify that he was conducting surveillance on the home during that time. To the
contrary, the pattern of behavior observed by Klump while he was surveilling the home,
and appellant’s behavior as recorded by the home security system, show that appellant
was frequently present. The present situation is also distinguishable from Swalley, in that
appellant was not a new occupant of the home, but rather he was a long-time resident.
{¶ 50} Further, the quantity of the drugs, the presence of scales, bowls, and
spoons, the torn baggies in the garbage, and the fact that the house contained easily
accessible loaded guns and large amounts of cash distinguish the present situation from
cases involving mere ownership or occupation of the premises. Although others were
observed frequently entering and exiting the residence, which Klump testified was
indicative of drug trafficking, it belies all common sense to conclude that appellant was
blissfully unaware that there was a loaded handgun in the kitchen cabinet, a loaded AK-
47 leaning against the wall in a bedroom, or $7,000 in cash hidden in the couch next to
his mail. Given these facts and circumstances, it is also not believable that appellant
would be unaware of $7,000 worth of drugs and drug trafficking paraphernalia hidden in
a cabinet in his dining room.
{¶ 51} This conclusion is even more evident when considering the information
from the confidential informants that appellant was involved in drug trafficking and had
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recently sold cocaine from the residence, which again distinguishes this case from
Haynes. Appellant, however, argues that the information from the confidential
informants should not be considered in the sufficiency analysis because it is inadmissible
hearsay. Appellant’s argument is incorrect. “When evaluating an assignment of error
challenging the sufficiency of the evidence, a reviewing court must consider all evidence
admitted at trial, including the improperly admitted evidence that was the source of the
reversal for trial error.” State v. Gideon, 165 Ohio St.3d 156, 2020-Ohio-6961, 176
N.E.3d 720, ¶ 29, citing State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, 903
N.E.2d 284, ¶ 24-26.
{¶ 52} Therefore, we hold that, when viewed in a light most favorable to the
prosecution, appellant’s established occupancy and frequent use of 2110 Airport
Highway, the discovery of torn baggies in the garbage, the accessibility of loaded guns,
the $7,000 in cash hidden in the couch next to his mail, the presence of appellant’s bank
card, expired driver’s license, and mail, and appellant’s involvement in drug trafficking,
was sufficient for a rational juror to have found that appellant knowingly possessed the
drugs beyond a reasonable doubt.
{¶ 53} Accordingly, appellant’s first assignment of error is not well-taken.
{¶ 54} Appellant’s second assignment of error seeks a different result based upon
the addition of the testimony of appellant’s brother, Matlock. Matlock sought to establish
that appellant shared the residence with others, and thus did not have exclusive
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possession of the premises, thereby muddying the question of who owned the cocaine.
When viewed in a light most favorable to the state, Matlock’s additional testimony does
not alter any of the conclusions reached in appellant’s first assignment of error. Indeed,
Matlock’s testimony that appellant continued to reside at the residence following the
shooting and through the time of trial actually bolsters the conclusion that appellant
occupied and used the residence, and thus made it more likely that he knowingly
possessed the cocaine.
{¶ 55} Accordingly, appellant’s second assignment of error is not well-taken.
C. Hearsay, Confrontation Clause, and Prosecutorial Misconduct
{¶ 56} In his fourth assignment of error, appellant first argues that Klump’s
testimony regarding the information from confidential informants constituted hearsay and
violated appellant’s right to confront the witness against him.
{¶ 57} “‘Hearsay’ is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted in the statement.” Evid.R. 801(C). Here, there are two instances of potential
hearsay. The first is Klump’s testimony on direct examination that appellant’s name was
listed in the search warrant because Klump “received a lot of information that [appellant]
was using 2110 to traffic narcotics, and all my information was corroborated with my
surveillance of the location and Lawrence Morris throughout the City of Toledo.” The
second is Klump’s testimony on redirect that the informants “provided me with observing
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Lawrence Morris making drug deals and giving me information about when he received
drugs or cocaine from other drug dealers,” and told him about appellant selling two
ounces of cocaine out of 2110 Airport Highway.
{¶ 58} Of the two instances, the second one is far more problematic. As to the
first instance, a reasonable argument could be made that it was not offered to prove the
truth of the matter asserted—i.e., that appellant was using 2110 Airport Highway to
traffic narcotics—but instead it was offered to demonstrate why Klump included
appellant’s name on the search warrant application.
Out-of-court statements to explain police conduct during the investigation
of a crime are not hearsay and are admissible if they satisfy three criteria:
(1) the conduct the officer is trying to explain is “relevant, equivocal, and
contemporaneous with the statements”; (2) the probative value of the
statements is not substantially outweighed by the danger of unfair
prejudice; and (3) “the statements cannot connect the accused with the
crime charged.”
State v. Kamer, 6th Dist. Wood No. WD-20-084, 2022-Ohio-2070, ¶ 176, quoting State v.
Ricks, 136 Ohio St.3d 356, 2013-Ohio-3712, 995 N.E.2d 1181, ¶ 27. While we think this
is a close case in that it is not particularly relevant for the jury to know why appellant’s
name was on the search warrant, and the statements do connect the accused with the
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crime charged, for purposes of our analysis we will assume that Klump’s statement
constituted inadmissible hearsay.
{¶ 59} The second instance is not nearly as close. On redirect, Klump testified
that informants told him that appellant dealt drugs and received drugs from other drug
dealers. We know that this testimony was offered to prove the truth of the matter
asserted because the next line of questioning explored why the informants were reliable:
Klump talked to the informants individually; the information was consistent between
informants; the information was consistent with Klump’s surveillance and the results of
the trash pull; the information was consistent with Klump’s previous contacts with
appellant. After establishing the informants’ credibility, the prosecutor then elicited
Klump’s testimony that one of the informants told him that appellant just sold two ounces
of cocaine out of 2110 Airport Highway. This is a textbook example of hearsay.
Furthermore, it runs afoul of the Sixth Amendment to the United States Constitution,
which provides that “In all criminal prosecutions, the accused shall enjoy the right * * *
to be confronted with the witnesses against him.” The right to confrontation is violated
“when an out-of-court statement that is testimonial in nature is admitted into evidence
without the defendants having had the opportunity to cross-examine the declarant.” State
v. Ali, 2d Dist. Clark No. 2014 CA 59, 2015-Ohio-1472, ¶ 14, citing Crawford v.
Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
28.
{¶ 60} However, appellant did not object to this testimony at trial. Thus, he has
waived all but plain error. State v. Obermiller, 147 Ohio St.3d 175, 2016-Ohio-1594, 63
N.E.3d 93, ¶ 72 (“We are limited to plain-error review as a result of Obermiller’s failure
to object when the alleged hearsay was introduced.”); State v. Tench, 156 Ohio St.3d 85,
2018-Ohio-5205, 123 N.E.3d 955, ¶ 217 (because defendant did not object at trial, “[h]e
cannot, therefore, prevail on [the Confrontation Clause] issue unless he establishes plain
error.”).
{¶ 61} Crim.R. 52(B) provides that “[p]lain errors or defects affecting substantial
rights may be noticed although they were not brought to the attention of the court.” Plain
error requires (1) “an error, i.e., a deviation from a legal rule,” (2) that is “plain” or “an
‘obvious’ defect in the trial proceedings,” and (3) that “must have affected ‘substantial
rights.’” State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). For an error to
have affected substantial rights, the error “must have affected the outcome of the trial.”
Id. “The accused is therefore required to demonstrate a reasonable probability that the
error resulted in prejudice—the same deferential standard for reviewing ineffective
assistance of counsel claims.” (Emphasis sic.) State v. Rogers, 143 Ohio St.3d 385,
2015-Ohio-2459, 38 N.E.3d 860, ¶ 22. “But even if an accused shows that the trial court
committed plain error affecting the outcome of the proceeding, an appellate court is not
required to correct it.” Id. at ¶ 23. “Notice of plain error under Crim.R. 52(B) is to be
taken with the utmost caution, under exceptional circumstances and only to prevent a
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manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 97, 372 N.E.2d 804(1978). Here, the record does not support a finding of plain error.
{¶ 62} Excluding the offending hearsay testimony, we find that the remaining
evidence is of sufficient quality that a reasonable probability does not exist that appellant
would have been acquitted. As described above, the evidence demonstrated that
appellant resided at 2110 Airport Highway both before and after the execution of the
search warrant. Appellant, and others, were observed frequently entering and exiting the
property at all times of day and night, which Klump testified was indicative of drug
trafficking. Appellant exercised particular dominion over the property by parking in the
garage and utilizing a key to lock and unlock the home. In addition, appellant’s bank
card and expired driver’s license, a prescription bottle with appellant’s name, and mail
and legal documents addressed to appellant were found in the house.
{¶ 63} The house also contained a loaded AK-47 leaned against the wall in an
upstairs bedroom, a loaded handgun sitting in a kitchen cupboard, and $7,000 in cash in a
drawer in the couch next to appellant’s mail. Common sense dictates that appellant was
aware of the presence of these items, which together are often associated with the drug
trade. Further, the presence of these items in the home convinces us that appellant was
also aware of the scales, bowl, mixing spoons, and 37 grams of cocaine hidden in a
cabinet in the dining room. We find the quantity of drugs to be particularly relevant. We
could believe that appellant would be unaware of a personal-use amount of drugs that one
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of the occupants or guests may have had, but we cannot believe that appellant would be
unaware of approximately $7,000 worth of cocaine in his home.
{¶ 64} Given appellant’s occupation of the home, the use of the home in a pattern
that is indicative of drug trafficking, the presence of a number of appellant’s personal
items in the home, and the fact that the home contained unhidden or poorly-hidden guns,
money, and drugs, we are confident that appellant was able to exercise dominion and
control over the cocaine. Thus, we find it manifestly improbable that appellant did not
knowingly possess the cocaine, and we hold, therefore, that appellant’s substantial rights
were not affected when the trial court allowed the offending testimony from the
confidential informants through Klump. Consequently, appellant has not demonstrated
plain error.
{¶ 65} Alternatively, appellant argues in this assignment of error that the
prosecutor committed prosecutorial misconduct when she referred to the hearsay
testimony during closing arguments. “The test regarding prosecutorial misconduct in
closing arguments is whether the remarks were improper and, if so, whether they
prejudicially affected substantial rights of the defendant.” State v. Smith, 14 Ohio St.3d
13, 14, 470 N.E.2d 883 (1984). “It is a prosecutor’s duty in closing arguments to avoid
efforts to obtain a conviction by going beyond the evidence which is before the jury.” Id.But, in this case, appellant did not object to the hearsay testimony of which he now
complains, and that evidence was before the jury. Therefore, it is not improper rising to
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the level of prosecutorial misconduct for the prosecutor to rely on that evidence in her
closing argument.
{¶ 66} Accordingly, because appellant has not demonstrated plain error or
prosecutorial misconduct, his fourth assignment of error is not well-taken.
D. Ineffective Assistance of Counsel
{¶ 67} Finally, in his fifth assignment of error, appellant argues that he received
the ineffective assistance of trial counsel. To prove a claim of ineffective assistance,
appellant must demonstrate that counsel’s performance fell below an objective standard
of reasonableness, and a reasonable probability exists that, but for counsel’s error, the
result of the proceedings would have been different. Strickland v. Washington, 466 U.S.
668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “The object of an
ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice * * * that course
should be followed.” Id. at 697.
{¶ 68} In support, appellant identifies five instances in which he argues his trial
counsel was ineffective: (1) trial counsel failed to object to the testimonial and hearsay
statements of absent informants, and to the prosecutor’s closing arguments; (2) trial
counsel cross-examined Klump on the search warrant affidavit; (3) trial counsel did not
object to Klump’s testimony that appellant owned the company listed on the piece of mail
located next to the $7,000 in cash; (4) trial counsel failed to object to the calling of
32.
appellant’s probation officer as a witness; and (5) trial counsel failed to object when the
trial judge disclosed that she had an ex parte communication with the jury.
{¶ 69} The first four instances cited by appellant all concern trial counsel’s actions
as they pertain to the introduction of evidence, thus we will address them together.
Because we conclude that appellant has not demonstrated sufficient prejudice, we will
focus on that prong. In determining whether appellant has demonstrated prejudice, we
utilize the same test that we used in our plain error review: appellant must demonstrate a
reasonable probability that but for counsel’s error the result of the proceedings would
have been different. Id. at 694; State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38
N.E.3d 860, ¶ 22.
{¶ 70} Appellant’s first instance of ineffective assistance challenges trial counsel’s
failure to object to the out-of-court statements of the confidential informants. Appellant’s
second instance of ineffective assistance challenges trial counsel’s strategy of questioning
Klump about the search warrant, which led to the out-of-court statements of the
confidential informants. In our plain error analysis above, we considered the prejudice
resulting from these statements, and have concluded that there is not a reasonable
probability that the result of the proceedings would have been different if the hearsay
testimony from the informants had been excluded.
{¶ 71} Appellant’s third and fourth instances raise additional evidentiary issues
regarding the piece of mail that was found next to the $7,000 in cash, and the suggestion
33.
that appellant was a criminal because his probation officer testified. These additional
instances do not impact our conclusion of no prejudice. Specifically, the piece of mail
next to the $7,000 in cash strongly ties the money to appellant, but that relationship is
thoroughly established by appellant’s occupancy and dominion over the residence, and
the presence of his bank card, expired driver’s license, and other mail in various places
throughout the home. As to the suggestion that appellant was a criminal, we note that no
evidence was elicited regarding why appellant was on probation, thereby lessening the
prejudice. Furthermore, in our plain error analysis above, we did not mention or rely on
appellant’s character as a criminal.
{¶ 72} Therefore, we hold that appellant has not demonstrated a reasonable
probability that the results of the proceeding would have been different but for trial
counsel’s errors pertaining to the introduction of evidence.
{¶ 73} In his fifth instance of ineffective assistance, appellant challenges trial
counsel’s failure to object to the trial court’s ex parte communication with the jury.
Following the reading of the verdict, the trial court informed the parties that it had
responded to a question from the jury regarding the verdict form. The jurors had
informed the court that they wrote the word “guilty” in the place that they should have
written either “did” or “did not.” The error resulted in the form stating, “We the Jury,
further find that the amount of cocaine possessed by the Defendant, Lawrence Morris Jr.
GUILTY equal or exceeded twenty-seven grams, but did not exceed one hundred grams
34.
of cocaine.” The court responded to the jurors that it re-printed the jury form, and that
they should put an “X” through the incorrect form and return it with the others.
{¶ 74} Regardless of whether the trial court should have had the parties present
when it responded to the jury, there was no prejudice to appellant. At the time of the
communication, the jury had already reached its decision that appellant “did” possess
cocaine exceeding 27 grams, and their question only pertained to an error in recording
that verdict. Thus, appellant cannot demonstrate that the result of the proceedings would
have been different had he been present for the trial court’s communication with the jury.
{¶ 75} Accordingly, we hold that appellant’s claims of ineffective assistance must
fail, and his fifth assignment of error is not well-taken.
IV. Conclusion
{¶ 76} For the foregoing reasons, we find that substantial justice has been done the
party complaining, and the judgment of the Lucas County Court of Common Pleas is
affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
35.
State of Ohio
v. Lawrence Morris, Jr.
L-22-1025
Mark L. Pietrykowski, J. ____________________________
JUDGE
Thomas J. Osowik, J.
____________________________
Gene A. Zmuda, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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