State v. Wood ( 2013 )

[Cite as State v. Wood, 2013-Ohio-5802.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 26820
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
ANGELO D. WOOD COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 12 10 2808
DECISION AND JOURNAL ENTRY
Dated: December 31, 2013
HENSAL, Judge.
{¶1} Appellant, Angelo D. Wood, appeals from his convictions in the Summit County
Court of Common Pleas. For the following reasons, this Court affirms.
I.
{¶2} Mr. Wood’s girlfriend, Jessica Jackson, called the Akron police for assistance in
retrieving her personal property from a home she rented with him. She lived with her mother at
the time, but spent some nights at the home with Mr. Wood. Ms. Jackson alleged that she and
Mr. Wood were arguing that day and she was concerned that he was going to become physically
violent toward her. When the police arrived and asked her if there were any weapons in the
home, Ms. Jackson replied that Mr. Wood had a gun and drugs inside. She told the police where
the gun and drugs were located in the home. Ms. Jackson agreed that the police could search the
home, and signed a form confirming her consent. The search revealed a bag of crack cocaine,
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digital scales, razor blades, plates with crack cocaine residue, a 9 mm handgun, magazines for
the gun, and ammunition.
{¶3} Mr. Wood was indicted by the Grand Jury for one count of having weapons while
under disability, a violation of R.C. 2923.13(A)(3), possession of cocaine, a violation of R.C.
2925.11(A), (C)(4), and domestic violence, a violation of R.C. 2919.25(A). The matter
proceeded to trial, and the jury found Mr. Wood guilty of having weapons under disability and
possession of cocaine. He was acquitted of the domestic violence charge. The trial court
sentenced Mr. Wood to a total of two years in prison.
{¶4} He filed a timely appeal and raises one assignment of error for this Court’s
review.
II.
ASSIGNMENT OF ERROR
APPELLANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO A
FAIR TRIAL WHEN THE PROSECUTOR COMMITTED MISCONDUCT BY
ELICITING INADMISSIBLE AND HIGHLY PREJUDICIAL TESTIMONY, IN
VIOLATION OF APPELLANT’S RIGHTS UNDER THE FIFTH, SIXTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION, ARTICLE ONE, SECTION TEN OF THE OHIO
CONSTITUTION, AND RULE 16 OF THE OHIO RULES OF CRIMINAL
PROCEDURE.
{¶5} Mr. Wood argues that he was deprived of a fair trial because of prosecutorial
misconduct. This Court disagrees.
{¶6} “The test for prosecutorial misconduct is whether remarks are improper and, if so,
whether they prejudicially affected substantial rights of the accused.” State v. Lott, 51 Ohio St.
3d 160, 165 (1990). “[A] judgment may only be reversed for prosecutorial misconduct when the
improper conduct deprives the defendant of a fair trial.” State v. Carano, 9th Dist. Summit No.
26544, 2013-Ohio-1633, ¶ 20, quoting State v. Knight, 9th Dist. Lorain No. 03CA008239, 2004–
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Ohio–1227, ¶ 6. “The defendant must show that there is a reasonable probability that but for the
prosecutor’s misconduct, the result of the proceedings would have been different.” State v. Veal,
9th Dist. Summit No. 26005, 2012-Ohio-3555, ¶ 17, citing State v. Loza, 71 Ohio St.3d 61, 78
(1994). “The touchstone of the analysis ‘is the fairness of the trial, not the culpability of the
prosecutor.’” State v. Diar, 120 Ohio St.3d 460, 2008–Ohio–6266, ¶ 140, quoting Smith v.
Phillips, 455 U.S. 209, 219 (1982).
{¶7} Mr. Wood argues that the prosecutor elicited irrelevant testimony from Ms.
Jackson about the purpose of the drug paraphernalia that suggested he sold drugs. He was not
charged with drug trafficking; but rather, drug possession. He contends that such questioning
was “clearly designed” to disparage his character.
{¶8} The prosecutor asked Ms. Jackson about the purpose of a digital scale that was
found in the home. Over objection, she replied that it was used to weigh drugs. The prosecutor
next inquired, also over objection, if she had observed Mr. Wood use a razor blade and kitchen
plate that were discovered during the search. Ms. Jackson responded in the affirmative. When
the prosecutor asked her what the items were used for, she testified that Mr. Wood used the items
to “chop down” pieces of crack cocaine. Mr. Wood did not object to the prosecutor’s question
about the purpose of the plate and razor blade.
{¶9} The prosecutor’s questions about the purpose of the scale, plate and razor blade
were not improper. Mr. Wood was charged with drug possession under R.C. 2925.11(A), which
provides that “no person shall knowingly obtain, possess, or use a controlled substance * * *.”
To “[p]ossess” is defined as “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). Thus, the State could
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not rely solely on the fact that Mr. Wood resided at the home to establish that he possessed the
drugs. It also had to prove that he had control over the drugs. Id.; State v. Carlton, 9th Dist.
Lorain No. 12CA010219, 2013-Ohio-2788, ¶ 11 (“We have also recognized that ‘the crucial
issue is not whether the accused had actual physical contact with the article concerned, but
whether the accused was capable of exercising dominion [and] control over it.’”), quoting State
v. Reis, 9th Dist. Summit No. 26237, 2012-Ohio-2482, ¶ 7. Ms. Jackson’s testimony, if believed,
established that Mr. Wood exerted “dominion and control” over the drugs as he used the scale,
plate and razor blades to physically handle the drugs when he weighed them and “chop[ped]
[them] down.” Reis at ¶ 7.
{¶10} In addition, the prosecutor played a recording of a jailhouse telephone call
between Ms. Jackson and Mr. Wood wherein he remarked that the police would not have
evidence of a “buy” at the home. The prosecutor asked Ms. Jackson, “What does buy mean?”
Ms. Jackson testified that it was her understanding that “when police are * * * going after people
that sell drugs * * * they have to get a buy from somebody in order to go after them[.]* * *
[W]hat he’s saying to me, they did not have actually a sale from like an undercover officer * * *
from Mr. Wood * * *.” Mr. Wood did not object to either the recording or the question to Ms.
Jackson about what a “buy” meant.
{¶11} Because Mr. Wood did not object to either the call or the subsequent follow up
question from the prosecutor, “he limits appellate review to that of plain error.” State v.
Novotny, 9th Dist. Summit No. 26526, 2013-Ohio-2321, ¶ 16. Crim.R. 52(B) states that “[p]lain
errors or defects affecting substantial rights may be noticed although they were not brought to
the attention of the court.” “As notice of plain error is to be taken with utmost caution and only
to prevent a manifest miscarriage of justice, the decision of a trial court will not be reversed due
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to plain error unless the defendant has established that the outcome of the trial clearly would
have been different but for the alleged error.” Veal, 2012-Ohio-3555, at ¶ 18. However, Mr.
Wood does not argue plain error in his brief, and this Court declines to create such an argument
on his behalf sua sponte. State v. Griffin, 9th Dist. Lorain No. 11CA010128, 2013-Ohio-416, ¶
37.
{¶12} In addition, this Court notes that, although not specifically cited by Mr. Wood in
his appellate brief, Akron Police officer William Lagasse also testified about the purpose of the
drug paraphernalia. The prosecutor asked him, “[b]ased on your training and experience, can
you explain to the jury what the significance is of these digital scales as it relates to the
possession of cocaine?” Over objection, Officer Lagasse testified that the scales, kitchen plate
and razor blade “indicate[ ] that someone is cutting up the cocaine and is measuring the cocaine
out [and] packaging the cocaine[.]” Mr. Wood’s counsel again objected, which was overruled by
the trial court. Officer Lagasse continued his testimony: “And then in my opinion as well,
would be an indication of someone that is selling cocaine and trafficking the cocaine.” Upon
objection, the trial court instructed the jury that “[Mr. Wood] is not charged with trafficking or
selling. He is only accused of possessing cocaine. So you’re not to consider that as evidence,
that he is a drug trafficker or trafficking the cocaine. He is only charged with possession of
cocaine. So you are to disregard that answer and consider it only for purpose of the charge of
possession of cocaine.” The prosecutor then asked Officer Lagasse what it means to cut up the
cocaine. Mr. Wood’s counsel objected, but the trial court stated that it would consider the
objection after it heard Officer Lagasse’s testimony. He testified that, “[a]s it relates to the
cocaine, it means that the cocaine was bought maybe in a bigger bag, it was put on [a] plate, it
was cut up in lines to be used, or in smaller pieces to be resold.” The Court sustained the
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objection, and instructed the jury that “[it was] not to consider this testimony as any evidence of
drug trafficking. [Mr. Wood] is not charged with drug trafficking. He is only charged with
possession of cocaine.”
{¶13} Thus, the trial court instructed the jury on two occasions to limit its consideration
of the evidence suggesting the sale of the drugs in light of the fact that Mr. Wood was charged
only with possession of cocaine and not drug trafficking. “Juries are presumed to follow the
court’s instructions, including instructions to disregard testimony.” State v. Johnson, 71 Ohio
St.3d 332, 340 (1994). Accordingly, even if this Court were to conclude that the prosecutor’s
conduct was improper, Mr. Wood has failed to demonstrate how his substantial rights were
prejudicially affected given the limiting instructions from the trial court.
{¶14} Mr. Wood further argues that the prosecutor elicited testimony from Ms. Jackson
about prior alleged physical altercations with him that was also designed to reflect negatively on
his character. However, the portions of the transcript he cites pertain to questions asked by
defense counsel rather than the prosecutor.
{¶15} Mr. Wood has failed to persuade us that any prosecutorial misconduct occurred
during the trial. Accordingly, this Court cannot conclude that he was deprived of his right to a
fair trial. Mr. Wood’s assignment of error is overruled.
III.
{¶16} Mr. Wood’s assignment of error is overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
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There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
WHITMORE, J.
CONCURS.
CARR, P. J.
CONCURRING IN JUDGMENT ONLY.
{¶17} I concur in the majority’s judgment, as I would overrule Wood’s sole assignment
of error. I would construe Wood’s assignment of error, however, as a challenge to the trial
court’s admission of certain evidence and the alleged inadequacy of certain limiting instructions.
Wood may not attack the admission of evidence by way of an allegation of prosecutorial
misconduct. See State v. Pleban, 9th Dist. Lorain No. 10CA009789, 2011-Ohio-3254, ¶ 40-41.
Accordingly, I would affirm his conviction on that basis.
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APPEARANCES:
ADAM VAN HO, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.