State v. Thompson , 2016 Ohio 5571 ( 2016 )

[Cite as State v. Thompson, 2016-Ohio-5571.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2015-P-0034
- vs - :
MICHAEL THOMPSON, :
Defendant-Appellant. :
Criminal Appeal from the Portage County Municipal Court, Kent Division, Case No.
2015 CRB 00261K.
Judgment: Affirmed.
Victor V. Vigluicci, Portage County Prosecutor, and Kristina Drnjevich, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Michael Thompson, pro se, 221 Spaulding Drive, Apt. 3, Kent, OH 44240 (Defendant-
Appellant).
CYNTHIA WESTCOTT RICE, P.J.
{¶1} Appellant, Michael Thompson, pro se, appeals his conviction, following a
bench trial, in the Portage County Municipal Court, Kent Division, of possession of
marijuana, a minor misdemeanor. The principal issue is whether appellant’s conviction
was against the manifest weight of the evidence. For the reasons that follow, we affirm.
{¶2} At trial, Officer Josh Nelson of the Kent Police Department testified that on
February 12, 2015, at about 4:00 p.m., he was parked in his cruiser in a driveway
between two apartment buildings running license plates and checking for speeders. At
that time he saw appellant’s vehicle, a white Pontiac Grand Am, coming out of a parking
lot across the street. About one week earlier, the Kent Police Department received a tip
from a female who reported that appellant was selling drugs. She provided appellant’s
address and the description and license plate of his car.
{¶3} The car that appellant was driving matched the description and license
plate provided by the tipster. Officer Nelson also saw there was a passenger in the
front passenger seat. The officer ran the license plate and discovered that the car was
registered to appellant and that the plates were expired. The officer then pulled out and
followed appellant and his passenger in order to conduct a traffic stop.
{¶4} Appellant pulled into a restaurant parking lot. The officer followed him into
the parking lot and then activated his overhead lights.
{¶5} Officer Nelson walked over to appellant’s car and said he stopped him
because his license plates were expired. Appellant said that was wrong. The officer
asked appellant for his registration and showed him the plates were expired. After
checking his registration, Officer Nelson asked appellant where they were going.
Appellant said they were late and in a hurry because he needed to take the female
seated in the front passenger seat to a doctor’s appointment. The officer testified this
was strange because appellant pulled into the parking lot before he initiated the stop
and there was no doctor’s office there.
{¶6} Officer Nelson asked the passenger, Klarissa Wagner, for her
identification. He ran it through L.E.A.D.S. and found she had an outstanding arrest
warrant from Stow. Officer Nelson then asked appellant for consent to search his car
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and he refused. The officer returned to his cruiser and radioed for a canine officer to
come to the scene to check appellant’s car for drugs. Ms. Wagner was handcuffed due
to her outstanding warrant and placed in Officer Nelson’s cruiser. Appellant was placed
in the cruiser of Officer Bowen, another Kent Police Officer who provided backup.
{¶7} About ten minutes later, Officer Ted Bell of the Stow Police Department
arrived with his certified canine partner Mingo. Officer Bell testified that, at Officer
Nelson’s request, he had Mingo check around appellant’s car for the odor of drugs.
Mingo alerted to near the door seam at the driver’s side, indicating she detected the
odor of drugs.
{¶8} Officer Bell advised Officer Nelson regarding the results of the sniff.
Officer Nelson told appellant that the canine alerted and asked him why the dog would
alert to his vehicle. Appellant said, “there’s probably marijuana seed on the floor.”
{¶9} Officer Nelson testified that once Mingo alerted to the vehicle, he and
Officer Bell searched it. Appellant’s Pontiac was a two-door sedan. Officer Nelson
searched the driver’s side and Officer Bell searched the passenger’s side. Officer
Nelson searched the driver’s seat first and then moved the driver’s seat up. He lifted
the floor mat behind the driver’s seat and saw a baggie of marijuana under the mat near
where Mingo had alerted. Officer Nelson identified the baggie of marijuana in court.
{¶10} Officer Bell said he searched Ms. Wagner’s purse that was on the
passenger side of the car and found a metal spoon inside. He said the spoon had burn
marks on it, which, he said, is common with spoons used to dissolve heroin or
prescription pills.
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{¶11} Officer Nelson talked to Ms. Wagner about the spoon. At first she said
she used it to eat. When he asked her why there were burn marks on the spoon, she
said a friend must have put it in her purse.
{¶12} Officer Nelson cited appellant for possession of marijuana, a minor
misdemeanor, but decided to give him a warning rather than a citation for the expired
plates. Officer Bowen drove him to the Kent Police Department for booking. Officer
Nelson transported Ms. Wagner to the Stow Police Department to be booked for
possession of drug abuse instruments and also to be served with her outstanding
warrant. As Officer Nelson was driving Ms. Wagner to the Stow Police Department,
Officer Bowen called him and said that appellant told him that when Officer Nelson
initially stopped them in the restaurant parking lot, Ms. Wagner shoved syringes and
spoons down her pants. When Officer Nelson told Ms. Wagner that appellant said she
put these instruments down her pants to conceal them, she admitted it. However, she
never said the marijuana belonged to her. Ms. Wagner ultimately pled guilty to
possession of drug abuse instruments in the Stow Municipal Court.
{¶13} After the state rested its case, appellant called Klarissa Wagner as his
only witness. On direct, she simply said she put marijuana in appellant’s car that day;
however, on cross, her story unraveled. She said that when Officer Nelson stopped
them, she had marijuana, three syringes, and two spoons in her purse. She said she
was using heroin at that time and used the syringes in her purse to shoot up. She said
she wanted to hide these items from the police so she put the needles and spoons in
her pants and “tossed [the marijuana] back so it could have went, you know, anywhere
in the back.” She said she does not know how the marijuana got under the floor mat
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behind the driver’s seat. Nor did she explain why she would conceal needles and
spoons on her person, but take the risk of throwing the drugs in the back where anyone
could see them when she could just as easily have hid the marijuana with the other
items.
{¶14} Ms. Wagner said she told Officer Nelson that she was late for a doctor’s
appointment and they were in a hurry to get there, but she admitted appellant drove to
the restaurant to get lunch. Once she realized this was inconsistent with her story about
them being in a hurry, she reversed course and said he only drove there to “order” lunch
and that he would pick it up after her appointment. However, later in her testimony she
said the doctor’s office was so far, the bus would not take her there. She did not say
why they did not just simply go to lunch after the appointment. Further, she did not offer
any doctor’s note or any other document showing that she had a doctor’s appointment
that day.
{¶15} Ms. Wagner was also unclear about the marijuana she said was hers.
She was unsure how it was packaged. She said it was only 3.5 grams of marijuana,
although Officer Nelson said it was 21 grams. And, she refused to testify who she
bought it from, even after the court ordered her to do so.
{¶16} In the state’s rebuttal case, Officer Nelson said that from the time he
determined appellant’s license plates were expired, he saw there was a passenger in
appellant’s car. He never lost visual contact with the vehicle and never saw any furtive
movements by either occupant. Specifically, he said he did not see Ms. Wagner throw
anything in the back seat.
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{¶17} Following the trial, the trial court found appellant guilty of possession of
marijuana, a minor misdemeanor; fined him $150; and suspended his driver’s license
for six months.
{¶18} Appellant appealed the trial court’s judgment, and the trial court stayed
execution of his sentence. In his brief, appellant does not assert any assignments of
error. Instead, he presents a one and one-half page rambling argument that briefly
mentions five issues. While it is not the role of this court to construe various issues
raised as assignments of error, in the interests of justice we shall address the issues
mentioned in the brief.
{¶19} First, appellant does not challenge the sufficiency of the evidence to
support his conviction of possession of marijuana; rather, he challenges only the
manifest weight of the evidence.
{¶20} A court reviewing the manifest weight observes the entire record, weighs
the evidence and all reasonable inferences, and considers the credibility of the
witnesses. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). The court determines
whether, in resolving conflicts in the evidence and deciding witness credibility, the trier
of fact clearly lost its way and created such a manifest miscarriage of justice that the
judgment must be reversed and a new trial ordered. Id. The discretionary power to grant
a new trial should only be exercised in the exceptional case in which the evidence
weighs heavily against the conviction. Id. Witness credibility rests solely with the finder
of fact, and an appellate court is not permitted to substitute its judgment for that of the
fact-finder. State v. Awan, 22 Ohio St.3d 120, 123 (1986). “The [trier of fact] is entitled to
believe all, part, or none of the testimony of any witness.” State v. Archibald, 11th Dist.
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Lake Nos. 2006-L-047 and 2006-L-207, 2007-Ohio-4966, ¶61. The role of the reviewing
court is to engage in a limited weighing of the evidence in determining whether the state
properly carried its burden of persuasion. Thompkins, supra, at 390 (Cook, J.,
concurring). If the evidence is susceptible to more than one interpretation, an appellate
court must interpret it in a manner consistent with the verdict. State v. Banks, 11th Dist.
Ashtabula No. 2003-A-0118, 2005-Ohio-5286, ¶33.
{¶21} Appellant argues that the municipal court was prejudiced against him and
his witness as evidenced by the judge’s finding on the record that she found the officers’
testimony to be credible but that Ms. Wagner’s testimony was not. However, this finding
shows the court performed its duty to determine the credibility of the witnesses and
does not reflect bias.
{¶22} The only alleged inconsistency noted by appellant is that, while Officer
Nelson testified he found the marijuana in the back under the floor mat, Officer Bell, the
canine officer, testified the marijuana was found in the back of the car. However, Officer
Bell searched only the passenger side of the car, while Officer Nelson searched the
driver’s side and found the marijuana. Thus, it was understandable that Officer Bell was
unaware exactly where in the back of the car Officer Nelson found the drugs. In any
event, since both officers said that Officer Nelson found the marijuana in the back of the
car, their testimony on this point was consistent.
{¶23} The trial court was entitled to find, as it did, that the officers’ testimony was
credible while that of Ms. Wagner was not, and nothing in the record suggests that the
trial court clearly lost its way and created such a manifest miscarriage of justice that the
judgment must be reversed and a new trial ordered.
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{¶24} Second, appellant argues that the trial court, prosecutor, and public
defender attempted to intimidate Ms Wagner to get her to recant her testimony that the
marijuana belonged to her. However, appellant is referring to the court’s efforts to
advise her of her Fifth Amendment right not to incriminate herself. After Ms. Wagner
testified she had marijuana in her purse, the court interrupted the proceedings to advise
her that it appeared she was going to admit possessing marijuana and that by doing so
she would be admitting a crime. After the court advised Ms. Wagner that she had a
right not to incriminate herself, she said she wanted to proceed. Then, at the
prosecutor’s request, the court advised Ms. Wagner that if it was proven she was not
telling the truth under oath, she could be committing perjury, another criminal offense.
Ms. Wagner said she understood.
{¶25} Later, when the prosecutor asked Ms. Wagner about the purpose of the
syringes in her purse, appellant objected on the ground that the prosecutor was
“incriminating” the witness. The court then asked the witness if she would like to
exercise her Fifth Amendment privilege and remain silent and the witness said she did
not want to talk right now.
{¶26} During a brief recess, the court had a public defender advise Ms. Wagner
regarding her rights. The trial court said on the record that, after talking to the public
defender, the court was confident the public defender explained Ms. Wagner’s
constitutional rights and privileges to her. After the recess, when the court asked Ms.
Wagner if she wanted to continue testifying or exercise her Fifth Amendment privilege,
the witness said she wanted to testify.
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{¶27} Later in her testimony, when the prosecutor asked Ms. Wagner where she
got the marijuana, Ms. Wagner refused to testify. The court allowed her to assert her
Fifth Amendment privilege as to that question only, but allowed her to testify as to other
matters.
{¶28} Thus, there is no evidence the court, prosecutor, or public defender
attempted to intimidate Ms. Wagner to recant her testimony that the marijuana belonged
to her. To the contrary, the court simply informed her of her privilege against self-
incrimination and enlisted the public defender to also advise her of her rights. In any
event, even if there was error, any error would be harmless beyond a reasonable doubt
because the witness never recanted her testimony that the marijuana was hers.
{¶29} Third, appellant states that the traffic stop and search were unlawful;
however, he does not present any argument in support, in violation of App.R. 16(A)(7).
For this reason alone, the argument (such as it is) lacks merit.
{¶30} More importantly, appellant never filed a motion to suppress evidence.
Crim.R. 12(B) provides: “Prior to trial, any party may raise by motion any defense,
objection, evidentiary issue, or request that is capable of determination without the trial
of the general issue. The following must be raised before trial: * * * (3) Motions to
suppress evidence * * *.” It is well settled that the failure to file a pretrial motion to
suppress evidence on the grounds that it was illegally obtained constitutes a waiver of
the error. State v. Moody, 55 Ohio St.2d 64, 65 (1978); State v. Jones, 8th Dist.
Cuyahoga No. 92820, 2009-Ohio-5701, ¶38 (“Crim.R. 12(B) requires a defendant to
raise any objection to the admissibility of unconstitutionally obtained evidence in a
pretrial motion to suppress.”).
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{¶31} It is undisputed that appellant never filed a motion to suppress evidence
obtained as a result of the stop and search of his vehicle. As a result, he waived any
objection to the introduction of the evidence at trial.
{¶32} Fourth, appellant argues the marijuana was not lab tested before being
admitted in evidence. While his argument is far from clear, he appears to be arguing
the trial court abused its discretion in admitting the marijuana in evidence. The
admission or exclusion of evidence lies within the sound discretion of a trial court, and a
reviewing court may not disturb evidentiary decisions without an abuse of discretion.
State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, ¶43, citing State v. Issa, 93 Ohio
St.3d 49, 64 (2001).
{¶33} As a preliminary matter, appellant did not object to the admissibility of the
marijuana at trial. This issue is thus waived on appeal. Awan, supra, at 122.
{¶34} In any event, even if the issue was not waived, it would lack merit.
Pursuant to R.C. 2925.51, the state may establish prima-facie evidence of the identity of
a controlled substance through laboratory testing. However, Ohio courts have held that
lab testing is not always necessary to prove the identity of a substance. For example,
the Supreme Court of Ohio has held that police officers trained and qualified may testify
that a substance is marijuana without a laboratory test as long as there is a sufficient
foundation laid to establish familiarity with the drug. State v. Maupin, 42 Ohio St.2d 473(1975), paragraph two of the syllabus. In addition, the Ohio Supreme Court has held
that a lay witness who is a drug user can establish his or her competence to express an
opinion on the identity of a controlled substance if a sufficient foundation for the
testimony is established. State v. McKee, 91 Ohio St.3d 292 (2001), syllabus
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{¶35} Officer Nelson testified that he successfully completed training in
marijuana odor detection with the Portage County Drug Task Force and that, based on
his training and experience, he is able to determine if a substance is marijuana. He
testified that when he lifted the floor mat in the rear of appellant’s car, he found a baggie
containing marijuana. He testified that when he found the baggie, he knew it contained
marijuana because “[y]ou could smell it outside of this outer plastic bag. Marijuana has
a very distinct odor. Also, by looking at it I could see that it was marijuana.”
{¶36} Further, appellant’s witness, Ms. Wagner, testified: (1) that she smokes
marijuana and has a supplier from whom she purchases marijuana; (2) that the baggie
she tossed in the back of appellant’s car contained marijuana; (3) that it looked like
about four grams of what she referred to as “good weed;” (4) that she bought it from her
supplier for $35; and (5) that the baggie containing green vegetable matter that was
marked as an exhibit at trial was in fact marijuana.
{¶37} Based on the foregoing evidence, the issue is waived, but even if it was
not, the trial court would not have abused its discretion by admitting the marijuana in
evidence.
{¶38} Fifth and last, appellant argues his statutory speedy trial rights were
violated because he was tried after the expiration of the 30-day time limit for a minor
misdemeanor. As a preliminary matter, we note that appellant never raised this issue in
the trial court. He never filed a motion to dismiss the citation on speedy trial grounds
and, even at trial, he never raised the issue. “Without question speedy trial rights may
be waived.” State v. McDonald, 4th Dist. Highland No. 96CA913, 1997 Ohio App.
LEXIS 4340, *5 (Sep. 9, 1997). A defendant’s failure to raise this issue in the trial court
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waives any error. State v. Glazer, 111 Ohio App.3d 769, 772 (5th Dist.1996), citing
State v. Dumas, 68 Ohio App.3d 174, 176 (10th Dist.1990). In Dumas, the Tenth
District stated:
{¶39} R.C. 2945.73(B) * * * provides:
{¶40} Upon motion made at or prior to the commencement of trial, a
person charged with an offense shall be discharged if he is not
brought to trial within the time required by sections 2945.71 and
2945.72 of the Revised Code.
{¶41} As is apparent here, the speedy-trial provisions are not self-
executing, but, rather, must be asserted by a defendant in a timely
fashion to avoid such rights being waived. Partsch v. Haskins, 175
Ohio St. 139 (1963), and subsequent related cases uniformly
support this proposition. * * * Dumas, supra.
{¶42} We therefore hold appellant waived any objection based on a violation of
the speedy trial statute.
{¶43} In any event, even if the issue was not waived, the argument would lack
merit. Pursuant to R.C. 2945.71(A), a person charged with a minor misdemeanor must
be brought to trial within 30 days after an arrest or service of summons. Pursuant to
R.C. 2945.72(H), a trial court may extend a trial past the speedy trial limit for the period
of any reasonable continuance granted on the state’s motion (“The time within which an
accused must be brought to trial * * * may be extended * * * by * * * the period of any
reasonable continuance granted other than upon the accused’s own motion.”). The trial
date may also be extended for any period occasioned by the neglect or improper act of
the defendant. R.C. 2945.72(D).
{¶44} Appellant was served with the citation on February 12, 2015. He thus had
to be tried by March 14, 2015. The trial was set for March 9, 2015. On March 9, 2015,
the state filed a motion for a continuance to obtain the video of the traffic stop. As of
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that date, 25 days had passed. The court granted the motion and continued the trial to
March 23, 2015.
{¶45} Ohio appellate courts, including the Ohio Supreme Court, have held that
reasonable continuances granted to the state are not counted against the state for
speedy trial purposes as long as legitimate grounds for the continuance are provided.
State v. Hess, 5th Dist. Stark No. 2003CA00348, 2004-Ohio-6820, ¶24 (continuance of
trial at state’s request, due to DNA testing and unavailability of victim due to pregnancy
complications, were not attributable to state for speedy trial purposes since grounds for
continuance were reasonable); State v. Barnett, 12th Dist. Fayette No. CA2002-06-011,
2003-Ohio-2014, ¶11-12 (continuance granted to state tolled speedy-trial time in
prosecution for rape since absence of one of state’s key witnesses and lack of
completion of DNA testing providing reasonable grounds for granting continuance);
State v. Myers, 97 Ohio St.3d 335, 342 (2002) (prosecutor’s request for continuance to
allow expert with 12-week backlog of cases to test foreign hair found on murder victim’s
body was not unreasonable and could not be charged against state for speedy trial
purposes).
{¶46} Here, the state moved for a continuance to allow it to obtain and review a
video of the stop. The state had the right, and even the duty, to review the video prior to
trial. Since appellant did not raise the speedy trial issue below, he did not challenge the
reasonableness of the state’s request for a continuance. Thus, appellant did not offer
any evidence that the state’s motion was not made in good faith. In these
circumstances, the continuance was not attributable to the state for speedy trial
purposes.
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{¶47} On the date scheduled for trial, appellant failed to appear and the trial was
reset to April 2, 2015. The additional ten days after March 23, 2015 are attributable to
appellant due to his neglect or improper act in failing to appear. The trial proceeded on
April 2, 2015, 19 days after the statutory 30-day time limit.
{¶48} Thus, even if the issue was not waived, appellant’s right to a speedy trial
was not violated.
{¶49} For the reasons stated in this opinion, the purported assignment of error
lacks merit and is overruled. It is the order and judgment of this court that the judgment
of the Portage County Municipal Court, Kent Division, is affirmed.
DIANE V. GRENDELL, J., concurs,
COLLEEN MARY O’TOOLE, J., concurs with a Concurring Opinion.
____________________
COLLEEN MARY O’TOOLE, J., concurs with a Concurring Opinion.
{¶50} I concur with the majority’s well-reasoned opinion. I write separately
regarding the matter of appellant’s arguments concerning the alleged violation of his
statutory speedy trial rights. The majority is correct that speedy trial provisions are not
self-executing and they can be waived. In this case appellant failed to raise this matter
in the trial court, effectively waiving any objection.
{¶51} The majority goes on to note that—even if appellant had not waived his
speedy trial rights—the result would be the same as a trial court may grant a reasonable
extension of the speedy trial limit under R.C. 2945.72(H). Extensions under R.C.
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2945.72(H) have been granted for a variety of reasons. State v. Nesser, 2d Dist. Clark
No. 2013 CA 21, 2014-Ohio-1978 ¶34-36 (Superstorm Sandy); State v. Talley, 6th Dist.
Lucas No. L-07-1153, 2008-Ohio-6807, ¶15 (snow emergency); State v. Strauss, 11th
Dist. Portage No. 2010-P-0035, 2011-Ohio-869, ¶14 (unavailability of witness due to
medical emergency); State v. Mailey, 1st Dist. Hamilton No. C-050590, 2006-Ohio-
3347, ¶20 (scheduling conflict due to jury trial).
{¶52} However, in this case the continuance was requested so that the state
could obtain the video of the traffic stop. It is reasonable to grant an extension of a
defendant’s statutory speedy trial rights due to events that are outside the control of the
court or the parties. However, it is not reasonable to grant such an extension so that
the state can perform regular and routine case-preparation—such as obtaining a video
of a traffic stop. One would assume that the state would have performed this routine
function prior to trial.
{¶53} The state has a duty to exercise due diligence and prepare for trial within
the statutory time period. State v. Jordan, 10th Dist. Franklin No. 90AP-660, 1991 Ohio
App. LEXIS 775, *7 (Feb. 21, 1991), citing State v. Reeser, 63 Ohio St.2d 189, 191
(1980). Having video evidence, taken on the date of arrest, prepared for trial within the
statutory time period constitutes due diligence. Absent appellant’s waiver, a
continuance under these circumstances would not be reasonable.
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