State v. Turner , 2023 Ohio 441 ( 2023 )

[Cite as State v. Turner, 2023-Ohio-441.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. John W. Wise, P.J.
Plaintiff-Appellee Hon. Patricia A. Delaney, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 2022 CA 00040
LAWRENCE J. TURNER
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 21CR416
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 15, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
WILLIAM C. HAYES WILLIAM T. CRAMER
PROSECUTING ATTORNEY 470 Olde Worthington Road
ROBERT N. ABDALLA Suite 200
ASSISTANT PROSECUTOR Westerville, Ohio 43082
20 South Second Street
Newark, Ohio 43055
Licking County, Case No. 2022 CA 00040 2
Wise, P. J.
{¶1} Defendant-Appellant Lawrence J. Turner appeals his convictions and
sentences entered in the Licking County Court of Common Pleas following a bench trial.
{¶2} Appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶3} On July 29, 2021, Defendant-Appellant Lawrence J. Turner was indicted on
four drug-related counts: Counts 1 and 2: Aggravated Trafficking in Methamphetamine,
in amounts exceeding five times bulk but less than fifty times bulk, in violation of R.C.
§2925.03(A)(1)(C)(1)(d), both charged as first degree felonies based on an allegation that
the transactions occurred in the vicinity of a juvenile; Count 3: Aggravated Possession of
Methamphetamine, in violation of R.C. §2925.11(A)(1)(C)(1)(a), a fifth degree felony; and
Count 4: Aggravated possession of psilocybin in violation of R.C.
§2925.11(A)(1)(C)(1)(a), a fifth degree felony. The indictment contained a Forfeiture
Specification (U.S. Currency) for violation of R.C. §2981.02(A)(1)(B) and R.C.
§2941.1417(A), and two Forfeiture Specifications (Firearms) for violation of R.C.
§2981.02(A)(1)(C) and R.C. §2941.1417(A).
{¶4} Appellant waived his right to a jury trial and on April 4, 2022, the matter
proceeded to a bench trial where the following testimony was presented:
{¶5} Joshua McDonald testified that after he got caught with drugs, he agreed to
work with law enforcement and assisted the police in controlled buys. (T. at 9). The police
arranged for McDonald to make two buys and told him what to do. McDonald signed a
contract as an informant and was told that he would face criminal consequences if he did
not cooperate. (T. at 23). McDonald participated in controlled buys on June 29, 2021, and
Licking County, Case No. 2022 CA 00040 3
July 15, 2021. (T. at 9). McDonald testified that he had previously purchased drugs from
Appellant Lawrence Turner, and met with Appellant on June 29, 2021, in order to
purchase drugs. Id. Prior to meeting with Appellant, law enforcement officers outfitted
McDonald with recording devices which recorded the June 29 purchase transaction. (T.
at 11). The audio recording was introduced as State's exhibit 7 (T. at 11-14). After
purchasing the drugs from Appellant, McDonald returned to law enforcement officers to
hand off the audio recording and purchased drugs, which included two ounces of
methamphetamine. (T. at 14).
{¶6} McDonald also testified regarding the controlled buy on July 15, 2021. (T.
at 15). Once again, prior to meeting with Appellant, McDonald met with law enforcement
officers who outfitted McDonald with recording equipment and provided him the
necessary cash to make the purchases. (T. at 15-16). The State introduced the audio
recording as Exhibit 14. (T. at 16-20). McDonald testified that on July 15, 2021, he
purchased approximately four ounces of methamphetamine from Appellant. (T. at 17). He
testified that Appellant's wife and child were present at the transaction and identified their
voices on the audio recording. (T. at 19). Following the transaction, McDonald met with
law enforcement officers and turned over the recording and purchased drugs. (T. at 20).
{¶7} On cross-examination, McDonald stated he has been twice convicted of
felonies and had several convictions for theft. (T. at 21). McDonald testified that he was
ordered to make the two controlled buys by law enforcement detectives under threat of
additional criminal consequences. (T. at 23). McDonald testified that he was currently out
on bond for a felony theft charge, and he believed that if he did not testify, that his bond
would be revoked. (T. at 24).
Licking County, Case No. 2022 CA 00040 4
{¶8} Detective Sergeant Alan Thomas of the Licking County Sheriff’s
Department also testified regarding the controlled buys which took place on June 29,
2021, and July 15, 2021. Det. Thomas was in charge of overseeing the controlled
purchases. (T. at 30). Det. Thomas testified that he listened to the audio recording as the
informant McDonald completed the purchase from Appellant. (T. at 31). Det. Thomas
testified that he heard children on the recording, specifically an infant crying, while
McDonald purchased the drugs from Appellant. (T. at 33). Following the controlled buy,
Det. Thomas recovered the methamphetamine and recording device and debriefed the
informant. Id. Det. Thomas also testified regarding the July 15, 2021, controlled buy,
where he again had a supervisory role. (T. at 35).
{¶9} Detective Kyle Boerstler of the Licking County Sheriff’s Department also
testified regarding the controlled buys from Appellant. Det. Boerstler testified that he was
assigned to the Central Ohio Drug Enforcement Task Force ("CODE"). (T. at 41). Det.
Boerstler testified that he met with McDonald prior to the June 29, 2021, controlled buy,
and that he searched McDonald and provided him with the money to make the buy. (T.
at 43). Det. Boerstler testified that following the controlled buy, he recovered some cash
and two ounces of methamphetamine which McDonald had purchased from Appellant.
Id.
{¶10} Det. Boerstler testified that he also similarly participated in the July 15,
2021, controlled buy. (T. at 50-51). Det. Boerstler testified that Appellant lived with his
girlfriend, Sydney McElfresh, and their daughter. (T. at 52). Det. Boerstler testified that
the juvenile heard in the recording crying in the background during the second controlled
buy is Appellant's daughter. (T. at 53).
Licking County, Case No. 2022 CA 00040 5
{¶11} Det. Boerstler testified that on July 16, 2021, he obtained and executed a
search warrant for Appellant's residence located at 999 South 30th Street. (T. at 55). Det.
Boerstler testified that law enforcement officers recovered two firearms, psilocybin
mushrooms, a clear plastic container of methamphetamine, and currency from
Appellant's residence. (T. at 56). Det. Boerstler noted that Mrs. McElfresh and Appellant's
juvenile daughter were present at the execution of the search warrant. Id.
{¶12} The court next heard from Mark Hiatt, a lab director at the Central Ohio
Regional Crime Lab. (T. at 75). Hiatt tested the containers of the substances recovered
from the controlled buys, and found that they contained 50.676 grams of
methamphetamine from the June 29, 2021, purchase, and 55.895 grams and 51.510
grams of methamphetamine from the July 15, 2021, purchase. (T. at 79-82). Hiatt also
tested items recovered from the execution of the search warrant and found a bag
containing mushrooms had 1.796 grams of psilocybin mushrooms and a bag of .078
grams of methamphetamine. (T. at 83).
{¶13} Detective Jarod Conley of the Newark Police Department testified that he
was assigned to the CODE, and assisted in the execution of the search warrant. (T. at
90). He testified that he took photographs of Appellant's residence and seized items,
which the State introduced as evidence. (T. at. 90-94).
{¶14} Detective Adam Hoskinson of the Licking County Sheriff's Office testified
that he was also assigned to CODE and that he participated in the search of Appellant's
apartment, wherein he recovered an assault rifle from behind the headboard in the
bedroom, and a handgun under the bed. (T. at 95-97).
Licking County, Case No. 2022 CA 00040 6
{¶15} Detective Justin Woodyard of the Licking County Sheriff’s Office, also
assigned to CODE, testified that he assisted in the search of the residence, and that he
recovered currency from an Isaiah Dooley who was in the process of exiting Appellant's
residence, and the recovered currency included pre-marked money from the controlled
buys. (T. at 101-102).
{¶16} Following Det. Woodyard's testimony the State rested. Appellant moved for
a directed verdict under Criminal Rule 29 as to all counts. (T. at 105). The trial court
denied Appellant's Rule 29 motion. (T. at 113).
{¶17} Appellant did not testify or call any witnesses. (T. at 115).
{¶18} After the close of evidence, the trial court found Appellant guilty on all
counts. The trial court granted the Forfeiture Specification (U.S. Currency), and denied
the Forfeiture Specifications for Firearms. (Judgment Entry, April 5, 2022).
{¶19} The court deferred sentencing pending the preparation of a presentence
investigation report.
{¶20} On May 19, 2022, the trial court sentenced Appellant to indeterminate
prison terms of five (5) to seven and one half (7 ½ ) years on Counts One and Two, a
prison term of one (1) year on Count Three, and a prison term of one (1) year on Count
Four, all of which were ordered to run concurrently, for an aggregate indeterminate prison
term of five (5) to seven and one half (7 ½ ) years in the state penitentiary. (Judgment
Entry, May 19, 2022). The court also imposed a mandatory term of post-release control
of two (2) to five (5) years.
{¶21} Appellant did not object to his indeterminate prison sentence at sentencing.
{¶22} Appellant now appeals, raising the following assignments of error:
Licking County, Case No. 2022 CA 00040 7
ASSIGNMENTS OF ERROR
{¶23} “I. APPELLANT'S DUE PROCESS RIGHTS WERE VIOLATED WHEN A
DRUG TRAFFICKING CONVICTION WAS ELEVATED TO A FIRST DEGREE FELONY
BASED ON A FINDING THAT THERE WAS A JUVENILE IN THE VICINITY THAT WAS
NOT SUPPORTED BY SUFFICIENT EVIDENCE
{¶24} “II. APPELLANT'S CONVICTIONS FOR AGGRAVATED DRUG
TRAFFICKING IN COUNTS ONE AND TWO WERE NOT SUPPORTED BY THE
WEIGHT OF THE EVIDENCE
{¶25} “II. INDEFINITE PRISON TERMS IMPOSED UNDER THE REAGAN
TOKES LAW VIOLATE THE JURY TRIAL GUARANTEE, THE DOCTRINE OF
SEPARATION OF POWERS, AND DUE PROCESS PRINCIPLES UNDER THE
FEDERAL AND STATE CONSTITUTIONS.”
I., II.
{¶26} In his first and second Assignments of Error, Appellant argues his drug
trafficking convictions were against the manifest weight and sufficiency of the evidence.
We disagree.
{¶27} The legal concepts of sufficiency of the evidence and weight of the evidence
are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380,
1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review for
a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio St.3d
259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio Supreme
Court held, “An appellate court's function when reviewing the sufficiency of the evidence
to support a criminal conviction is to examine the evidence admitted at trial to determine
Licking County, Case No. 2022 CA 00040 8
whether such evidence, if believed, would convince the average mind of the defendant's
guilt beyond a reasonable doubt. 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.”
{¶28} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “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 overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387.
Reversing a conviction as being against the manifest weight of the evidence and ordering
a new trial should be reserved for only the “exceptional case in which the evidence weighs
heavily against the conviction.” Id.
{¶29} Appellant herein is challenging his convictions on two counts of Aggravated
Trafficking in Methamphetamine, in violation of R.C. §2925.03(A)(1)(C)(1)(d), which
provides, in relevant part:
{¶30} (A) No person shall knowingly do any of the following:
(1) Sell or offer to sell a controlled substance or a controlled
substance analog;
***
(C) Whoever violates division (A) of this section is guilty of one of the
following:
Licking County, Case No. 2022 CA 00040 9
(1) If the drug involved in the violation is any compound, mixture,
preparation, or substance included in schedule I or schedule II, with the
exception of marihuana, cocaine, L.S.D., heroin, any fentanyl-related
compound, hashish, and any controlled substance analog, whoever violates
division (A) of this section is guilty of aggravated trafficking in drugs. The
penalty for the offense shall be determined as follows:
***
(d) Except as otherwise provided in this division, if the amount of the
drug involved equals or exceeds five times the bulk amount but is less than
fifty times the bulk amount, aggravated trafficking in drugs is a felony of the
second degree, and the court shall impose as a mandatory prison term a
second degree felony mandatory prison term. If the amount of the drug
involved is within that range and if the offense was committed in the vicinity
of a school, in the vicinity of a juvenile, or in the vicinity of a substance
addiction services provider or a recovering addict, aggravated trafficking in
drugs is a felony of the first degree, and the court shall impose as a
mandatory prison term a first degree felony mandatory prison term.
{¶31} Pursuant to R.C. §2925.01(BB),
An offense is “committed in the vicinity of a juvenile” if the offender
commits the offense within one hundred feet of a juvenile or within the view
of a juvenile, regardless of whether the offender knows the age of the
juvenile, whether the offender knows the offense is being committed within
Licking County, Case No. 2022 CA 00040 10
one hundred feet of or within view of the juvenile, or whether the juvenile
actually views the commission of the offense.
{¶32} Appellant herein argues that the state of Ohio failed to prove that the
transactions occurred within view of a juvenile, or that the juvenile actually viewed the
transactions, or that the juvenile was within one hundred feet of the transaction.
(Appellant’s Brief at 6-7).
{¶33} Upon review of the record, we find that the State presented testimony from
the confidential informant, Det. McDonald, Det. Thomas and Det. Boerstler with regard to
both the June 29th and July 15th controlled buys. The audio recordings made during both
transactions were played for the trial court during which a child could be heard crying.
The witnesses identified the crying child as Appellant’s infant daughter.
{¶34} The juvenile-in-the-vicinity cases cited by Appellant each deal with
situations where the child was present when a search warrant or an arrest was made but
not when the drug transactions occurred. We therefore find they are inapplicable to the
instant case as the child herein was present in the apartment when the drug transactions
were taking place.
{¶35} We further find that the confidential information clearly identified Appellant
as the person from whom he purchased the methamphetamine. While Appellant argues
that the informant was not a reliable witness, having a long criminal history, issues relating
to the credibility of the witnesses and the weight to be given to the evidence are primarily
for the trier of fact. Seasons Coal v. Cleveland, 10 Ohio St.3d 77, 461 N.E.2d 1273 (1984).
{¶36} Finally, we find that the lab director testified as to the bulk weights of the
drugs, 50.675 grams in the June 29th buy and 107.405 grams in the July 15th buy.
Licking County, Case No. 2022 CA 00040 11
{¶37} Based on the foregoing, we find that the state of Ohio presented sufficient
evidence to support a conviction in this matter. We further find that the trial court did not
lose its way or create a miscarriage of justice in finding Appellant guilty of aggravated
trafficking of methamphetamine with enhancements.
{¶38} Appellant’s first and second assignments of error are overruled.
III.
{¶39} In his third assignment of error, Appellant challenges the constitutionality of
the Reagan Tokes Act, specifically R.C. §2967.271, which codified hybrid indefinite prison
terms for first and second-degree felonies. Appellant argues that the Act violates the
separation of powers doctrine, the constitutional right to trial by jury, due process and
equal protection.
{¶40} We first note that pursuant to State v. Maddox, Ohio St.3d, 2022-Ohio-764,
N.E.3d, the Ohio Supreme Court held that constitutional challenges to the Reagan Tokes
Act are ripe for review on direct appeal.
{¶41} In State v. Householder, 5th Dist. Muskingum No. CT2021-0026, 2022-
Ohio-1542, this Court set forth its position on the arguments raised in Appellant's fourth
Assignment of Error:
For the reasons stated in the dissenting opinion of The Honorable W.
Scott Gwin in State v. Wolfe, 5th Dist. Licking No. 2020CA00021, 2020-
Ohio-5501, we find the Reagan Tokes Law does not violate Appellant's
constitutional rights to trial by jury and due process of law, and does not
violate the constitutional requirement of separation of powers. We hereby
adopt the dissenting opinion in Wolfe as the opinion of this Court. In so
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holding, we also note the sentencing law has been found constitutional by
the Second, Third, Sixth, and Twelfth Districts, and also by the Eighth
District sitting en banc. See, e.g., State v. Ferguson, 2nd Dist. Montgomery
No. 28644, 2020-Ohio-4153; State v. Hacker, 3rd Dist. Logan No. 8-20-01,
2020-Ohio-5048; State v. Maddox, 6th Dist. Lucas No. L-19-1253, 2022-
Ohio-1350; State v. Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-
Ohio-3837; State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-
470. Further, we reject Appellant's claim the Reagan Tokes Act violates
equal protection for the reasons stated in State v. Hodgkin, 12th Dist.
Warren No. CA2020-08-048, 2021-Ohio-1353.
{¶42} Based on the forgoing authority, the trial court did not err in sentencing
Appellant to an indefinite non-life term.
{¶43} Appellant’s third assignment of error is overruled.
{¶44} The judgment of the Court of Common Pleas of Licking County, Ohio, is
affirmed
By: Wise, P. J.
Delaney, J., and
Baldwin, J., concur.
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