State v. King , 2011 Ohio 1018 ( 2011 )

[Cite as State v. King, 2011-Ohio-1018.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
STATE OF OHIO : Julie A. Edwards, P.J.
: W. Scott Gwin, J.
Plaintiff-Appellee : Patricia A. Delaney, J.
:
-vs- : Case No. 10CA44
:
:
MAURICE KING, III : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal Appeal from Richland
County Court of Common Pleas Case
No. 2008-CR-374D
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 4, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JAMES J. MAYER, JR. ERIC J. ALLEN
Prosecuting Attorney The Law Office of Eric J. Allen, Ltd.
Richland County, Ohio 713 South Front Street
Columbus, Ohio 43206
BY: KIRSTEN L. PSCHOLKA-GARTNER
Assistant Richland County Prosecutor
38 South Park Street
Mansfield, Ohio 44902
[Cite as State v. King, 2011-Ohio-1018.]
Edwards, P.J.
{¶1} Appellant, Maurice King, III, appeals a judgment of the Richland County
Common Pleas Court dismissing his petition for postconviction relief. Appellee is the
State of Ohio.
STATEMENT OF FACTS AND CASE
{¶2} In 2007 and early 2008, appellant was a police officer in the town of
Bellville in Richland County, Ohio. In November, 2007, an informant for the Mansfield
Police Department named Tommy Thompson informed Detective Eric Bosko that
appellant was involved in purchasing various stolen items. As a result of this tip,
Detective Bosko initiated an investigation.
{¶3} Detective Bosko arranged for Thompson to call appellant in December,
2007, and offer to sell him stolen crossbows. Thompson called appellant, who agreed
to look at the bows. However, Detective Bosko was unable to procure any crossbows in
the police department’s evidence room for Thompson to show appellant.
{¶4} Thompson then contacted appellant again on January 8, 2008, and
informed appellant that he had several stolen firearms that he would be able to sell
appellant. Appellant and Thompson arranged to meet at appellant’s home on January
10, 2008, so that appellant could examine the firearms.
{¶5} On January 10, 2008, Thompson and an additional informant, James
Soles, met with Mansfield police officers and Bureau of Alcohol, Tobacco, and Firearms
agents at a Wal-Mart that was close in proximity to appellant’s house. The informants
were fitted with recording devices and were given a .40 caliber Glock pistol, a 12-gauge
shotgun, a semi-automatic SKS assault rifle and a fully automatic M-16 assault rifle from
Richland County App. Case No. 10CA44 3
the Mansfield Police department evidence room. Thompson and Soles then drove to
appellant’s home on Possum Run Road, which is located in a rural part of Richland
County. Thompson and Soles were followed by police officers and ATF agents, who
videotaped the meeting from a distance.
{¶6} Upon arriving at appellant’s house, Thompson introduced Soles as
“Chicago,” a man who had stolen the guns from a contractor in Cleveland. Appellant
put on a pair of gloves and inspected the guns. Appellant negotiated a price of seven
hundred dollars for the guns and used his cell phone to make several phone calls. The
calls were placed to his grandmother and to a friend who lived in the Rosalind area of
Mansfield. No one answered the phone on either of the calls, so appellant told the
informants to return at 2:00 a.m. to complete the deal. The informants then left
appellant’s home around 4:00 p.m.
{¶7} At 4:31 p.m., appellant telephoned his friend, Keith Porch, a police officer
with the Metrich Drug Enforcement Task Force. Appellant told Porch that Thompson
and an unknown Hispanic man had been at his residence attempting to sell him stolen
guns. He indicated to Porch that he made the men leave his residence and that the
men stated that they were going to go to Mansfield to attempt to sell the guns.
Appellant provided Porch with a vehicle description, but stated that he did not know the
license plate number. He also failed to advise Porch that he had scheduled the meeting
or that he told the suspects to return to his house in the middle of the night.
{¶8} Twenty minutes later, Thompson phoned appellant’s cell phone, while in
the presence of Detective Chad Brubaker, and left a message for him. Subsequently,
appellant returned Thompson’s call and tried to negotiate the purchase of only the
Richland County App. Case No. 10CA44 4
Glock handgun. Thompson told appellant he would sell him the handgun for five
hundred dollars.
{¶9} After this phone call, appellant again called Porch and informed him that
Thompson had reduced the asking price for the guns. He informed Porch that he did
not know Thompson’s location. However, Thompson had told appellant previously that
he was at home. Appellant did not give Porch Thompson’s cell phone number, which
he had in his possession. He also did not tell Porch that he attempted to make a
second transaction with Thompson for only the Glock handgun.
{¶10} At 6:09 p.m., appellant called Thompson and informed him that his friend
who was interested in the guns was out of town and would not return until January 31,
2008, and that he would call Thompson when his friend was available to complete the
transaction. Two minutes later, Thompson called appellant back to confirm the details.
{¶11} At 6:18 p.m., appellant called Thompson back, sounding angry and
questioning Thompson as to whether he had told Chicago appellant’s name or that
appellant was a police officer. Thompson assured him that he had not. Thompson also
informed appellant that Soles had previously been arrested for selling crack cocaine,
but that he did not have any current charges pending. Appellant stated that he would
check Soles’ record on public access, but not using his official access to the records
database.
{¶12} Thompson called appellant several additional times over the next few
days, attempting to complete the sale of the guns. On January 13, 2008, Thompson’s
call went directly to appellant’s voicemail. On January 14, 2008, Thompson left two
Richland County App. Case No. 10CA44 5
additional messages on appellant’s voicemail. Appellant failed to report these calls to
his friend, Porch.
{¶13} On January 15, 2008, authorities executed a search warrant on
appellant’s residence on Possum Run Road. No stolen guns were identified. Appellant
informed police that there was no stolen merchandise in his house. However, electronic
equipment, a Razor electric scooter and an Ohio driver’s license belonging to Dionne
Goodwin were photographed and seized.
{¶14} Following the search of his home, appellant gave a statement to Detective
Eric Bosko and stated that he did not have a reason why he agreed to buy stolen
crossbows in December, 2007. He admitted that he had failed to report any of this
suspicious or illegal activity to Chief Ron Willey of the Bellville Police Department. He
also stated that he did not tell Detective Porch the whole story for fear of his family’s
safety. He also admitted that he scheduled the date, time and location of the meeting
regarding the stolen firearms and that he failed to notify any law enforcement agency of
the meeting.
{¶15} As a result of the investigation, appellant was charged with one count of
attempted receiving stolen property, a misdemeanor of the second degree, one count of
possessing criminal tools, a misdemeanor of the first degree and one count of
dereliction of duty, a misdemeanor of the second degree, relating to the December,
2007, attempt to purchase stolen crossbows. He was also charged with three counts of
attempted receiving stolen property, felonies of the fifth degree, one count of attempted
unlawful possession of a dangerous ordinance, a misdemeanor of the first degree, one
count of possessing criminal tools, a felony of the fifth degree, one count of dereliction
Richland County App. Case No. 10CA44 6
of duty, a misdemeanor of the second degree, and one count of failure to report a crime,
a misdemeanor of the fourth degree, relating to the January, 2008, attempt to purchase
stolen guns. Appellant was also charged with one count of receiving stolen property, a
misdemeanor of the first degree, relating to the driver’s license discovered in his home
on January 15, 2008.
{¶16} Appellant was initially tried on September 4 through September 11, 2008.
During that trial, appellant took the stand in his own defense. The trial concluded with
the jury acquitting appellant of the misdemeanor charges relating to the attempt to
purchase the stolen crossbows and the possession of the stolen driver’s license. The
jury was unable to reach a verdict on the remaining charges.
{¶17} Appellant was tried a second time on December 11, 2008, through
December 18, 2008, on the remaining charges related to the attempted possession of
the guns. Appellant did not take the stand in the second trial; however, several of
appellant’s statements were used when the defense called Keith Porch to the stand in
appellant’s case in chief. Appellant was found guilty of three counts of attempted
receiving stolen property, one count of attempted unlawful possession of a dangerous
ordinance, one count of possessing criminal tools; one count of dereliction of duty and
one count of failure to report a crime. He was sentenced to twenty-two months in
prison.
{¶18} Appellant filed an appeal with this Court. His appeal was dismissed for
want of prosecution on October 21, 2009. The appeal was reopened on December 7,
2009. The judgment of conviction and sentence was affirmed by this Court on
September 21, 2010. State v. King, Richland App. No. 08-CA-335, 2010-Ohio-4844.
Richland County App. Case No. 10CA44 7
{¶19} Appellant filed a petition for postconviction relief on October 16, 2009.
Appellant claimed in part that Larry Davis, Jr. committed perjury during appellant’s trial
as a result of an undisclosed deal with the State to reduce Davis’s prison time on a case
in Holmes County. Attached to the motion was a letter Davis allegedly wrote to a former
cellmate, complaining that he did not get time off his sentence for testifying against
appellant. The court held an evidentiary hearing on this claim. Following the hearing,
the court found appellant’s claim to be without merit and dismissed his petition. He
assigns a single error on appeal:
{¶20} “THE TRIAL COURT ERRED IN DENYING APPELLANT’S PETITION
FOR POSTCONVICTION RELIEF.”
{¶21} A trial court's decision granting or denying a postconviction petition filed
pursuant to R.C. 2953.21 should be upheld absent an abuse of discretion; a reviewing
court should not overrule the trial court's finding on a petition for postconviction relief
that is supported by competent and credible evidence. State v. White,118 Ohio St.3d
12, 19, 885 N.E.2d 905, 2008-Ohio-1623, citing State v. Gondor, 112 Ohio St.3d 377,
860 N.E.2d 77, 2006-Ohio-6679. The term “abuse of discretion” implies that the court's
attitude is unreasonable, arbitrary or unconscionable.” State v. Adams (1980), 62 Ohio
St.2d 151, 157, 16 O.O.3d 169, 404 N.E.2d 144, citing Steiner v. Custer (1940), 137
Ohio St. 448, 19 O.O. 148, 31 N.E.2d 855; see, also, Blakemore v. Blakemore (1983), 5
Ohio St.3d 217, 219, 5 OBR 481, 450 N.E.2d 1140.
{¶22} Appellant has not demonstrated that the court abused its discretion in
dismissing his petition for postconviction relief. The only evidence appellant presented
at trial concerning a secret deal between Davis and the State whereby Davis would
Richland County App. Case No. 10CA44 8
commit perjury in appellant’s case was the testimony of Davis’s former girlfriend, Cindy
Wolfe. She claimed that she knew Davis was going to lie in appellant’s trial in order to
reduce his sentence on a case pending in Holmes County. However, Wolfe was herself
convicted of several felonies connected to the crimes which Davis committed and had
previously been romantically involved with Davis. While is it not clear from the record
whether the court considered the letter appellant mailed to his former cellmate,
Zachariah Fretwell, as evidence, nothing in the letter demonstrates that Davis lied when
he testified at appellant’s trial. While in the letter he expressed displeasure that his
prison time in Holmes County was not reduced by his cooperation with Richland County
authorities, at the hearing, Davis testified that he wouldn’t say the letter was true, it was
“just guys bullshitting.” Tr. 39.
{¶23} The State presented evidence through the testimony of Captain Eric
Bosko of the Richland County Sherriff’s Department that he agreed to call Holmes
County authorities and inform them that Davis had cooperated with the State in
appellant’s trial. He testified that he did make such phone call, but Davis had already
been convicted and sentenced on his Holmes County case prior to his testimony in
appellant’s second trial. Sgt. Roger Estill of the Millersburg Police Dept. testified that he
did receive this message from Capt. Bosko, but there was no conversation or
agreement regarding dismissing the charges against Davis in exchange for his
testimony in appellant’s case.
Richland County App. Case No. 10CA44 9
{¶24} The trial court was in a better position than this Court to judge credibility of
witnesses. We cannot find that the court abused its discretion in dismissing appellant’s
petition for postconviction relief. The assignment of error is overruled.
{¶25} The judgment of the Richland County Common Pleas Court is affirmed.
By: Edwards, P.J.
Gwin, J. and
Delaney, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/r1124
[Cite as State v. King, 2011-Ohio-1018.]
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
MAURICE KING, III :
:
Defendant-Appellant : CASE NO. 10CA44
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Richland County Court of Common Pleas is affirmed. Costs assessed
to appellant.
_________________________________
_________________________________
_________________________________
JUDGES