100885 , 2014 Ohio 5138 ( 2014 )

[Cite as 100885, 2014-Ohio-5138.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100885
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DEAUNTE R. BULLITT
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-12-565262-C
BEFORE: S. Gallagher, J., Boyle, A.J., and Stewart, J.
RELEASED AND JOURNALIZED: November 20, 2014
ATTORNEY FOR APPELLANT
David H. Brown
The Gehring Building
1956 West 25th Street, Suite 302
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Erica Barnhill
Assistant Prosecuting Attorney
Justice Center - 8th Floor
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, J.:
{¶1} Defendant Deaunte Bullitt appeals from his conviction for drug trafficking with
attendant major drug offender, juvenile, and forfeiture specifications. For the following reasons,
we affirm.
{¶2} A jury found Bullitt guilty of several charges, after a joint trial with his codefendant
Jerael Dues, for which the trial court sentenced Bullitt to an 11-year aggregate term of
imprisonment. Bullitt was convicted of drug trafficking in violation of R.C. 2925.03(A)(2),
along with major drug offender, juvenile, and forfeiture specifications; possession of that drug
(merged with the trafficking charge at sentencing); possession of criminal tools; and tampering
with evidence. The controlled substance was cocaine equaling or exceeding 100 grams. Bullitt
was charged with, but not found not guilty of, trafficking and possessing heroin as well. The
trial court sentenced Bullitt to 11 years on the trafficking charge, the longest prison term imposed
for the guilty verdicts entered on the multiple counts, ordered to be served concurrently.
{¶3} Before the verdict and sentencing, when instructing the jury on the trafficking count,
the trial court stated that the jury must find Bullitt guilty of knowingly preparing for shipment,
shipping, transporting, delivering, or distributing a controlled substance. The court further
instructed that the “drug involved in the violation as to Count 1 is cocaine * * *, and the amount
of the drug involved equals or exceeds 100 grams * * *.”
{¶4} The trial court’s written instructions, which were provided to the jury for use during
deliberations, contrasted with the oral instructions. The written instructions stated that the jury
must find “beyond a reasonable doubt that * * * the controlled substance was intended for sale or
resale by the offender or another person and the drug involved in the violation is cocaine * * *
and the amount of the drug involved equals or exceeds 100 grams.” (Emphasis added.)
Evidently, in orally instructing the jury, the trial court inadvertently omitted the
above-emphasized conjunction between the description of trafficking and the drug involved, both
of which the jury must determine before finding Bullitt guilty.
{¶5} In his sole assignment of error, Bullitt contends that because of the omission of the
conjunction, the oral jury instruction impermissibly relieved the state of its burden to prove
beyond a reasonable doubt that the controlled substance introduced into evidence was cocaine
weighing 100 grams or more. According to Bullitt, the jury was instructed that the controlled
substance was undisputedly determined to be cocaine exceeding 100 grams and the jury was
without discretion to determine whether the state proved that element of the trafficking charge
beyond a reasonable doubt. We find no merit to Bullitt’s sole assignment of error.
{¶6} A trial court is provided the discretion to determine whether the evidence adduced at
trial was sufficient to require an instruction. State v. Fulmer, 117 Ohio St.3d 319,
2008-Ohio-936, 883 N.E.2d 1052, ¶ 72. Jury instructions must be viewed as a whole to
determine whether they contain prejudicial error. State v. Fields, 13 Ohio App.3d 433, 436, 469
N.E.2d 939 (8th Dist.1984).
{¶7} Further, it is undisputed that Bullitt failed to object to the challenged jury
instruction. “On appeal, a party may not assign as error the giving or the failure to give any
instructions unless the party objects before the jury retires to consider its verdict, stating
specifically the matter objected to and the grounds of the objection.” State v. Steele, 138 Ohio
St.3d 1, 2013-Ohio-2470, 3 N.E.3d 135, ¶ 29, quoting Crim.R. 30(A). In order for “a court to
notice plain error, the error must be an obvious defect in a trial’s proceedings, it must have
affected substantial rights, and it must have affected the outcome of the trial.” Id., citing State v.
Eafford, 132 Ohio St.3d 159, 2012-Ohio-2224, 970 N.E.2d 891, ¶ 11, citing State v. Payne, 114
Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306.
{¶8} Bullitt’s argument critiques one paragraph from almost 40 transcript pages
memorializing the jury instructions. He further ignores the written instructions that
accompanied the jury during deliberation and at least three other occasions when the trial court
set forth the burden of proof, in respect to the proof of the type and weight of the drug, precisely
as required. Jury instructions must be considered as a whole. Even if the court’s oral statement
regarding Count 1 was erroneous for omitting the conjunction between the trafficking and
controlled substance descriptions, arguably implying that the controlled substance was
undisputedly determined to be cocaine weighing more than 100 grams, the trial court followed
that statement with several others clarifying that the jury was to determine whether the state
proved beyond a reasonable doubt every element of the trafficking charge, including the weight
and type of the controlled substance admitted into evidence.
{¶9} For example, in discussing the cocaine trafficking count further, the court instructed:
You will determine from these facts and circumstances whether there existed at
the time in the mind of the defendants an awareness of the probability that they
[trafficked] * * * a substance containing cocaine, and the amount of the drug
involved equals or exceeds 100 grams of cocaine * * *.
Tr. 720:10-18. In explaining the major drug offender specification attached to the drug
trafficking count, on which the jury also found Bullitt guilty, the trial court further explained that
the jury must “make an additional finding as to whether the amount of cocaine involved in Count
1 was or was not in an amount which equals or exceeds 100 grams of cocaine and indicate such
finding on the further finding verdict form.” Tr. 723:8-13. Finally, the written jury instructions
correctly stated that the jury, before rendering a guilty verdict on that count, must not only find
that Bullitt knowingly prepped or possessed drugs for sale or shipment, but also that the drug was
cocaine and equaled or exceeded 100 grams.
{¶10} More important, the only testimony provided at trial on the type and amount of
drug was presented by the state’s forensic chemist. The chemist testified that testing revealed
the substance at issue was cocaine, weighing 100.76 grams. Neither Bullitt nor his codefendant
Dues ever contested this finding. In fact, Bullitt never cross-examined the chemist, and Dues
only questioned her regarding whether the chemist was aware of where the substances were
collected, apparently an issue raised in his defense. Further, during closing arguments both
defendants referenced the substance as being cocaine exceeding 100 grams as an undisputed fact.
See tr. 766:22-24; 769:18-19; 770:15-16; 779:24-25. The weight and type of drug were simply
not contested issues during the trial.
{¶11} Finally, in returning the verdict, the jury specifically stated:
We the jury in this case, with respect to Deaunte R. Bullitt, being duly
impaneled and sworn, do find the defendant, Deaunte R. Bullitt, guilty of
trafficking in violation of 2925.03 subsection (A)(2) as charged in Count 1 of the
indictment. There are 12 signatures affixed to the verdict form.
With respect to the further finding, amount of controlled substance, We
the jury find beyond a reasonable doubt the amount of cocaine involved in Count
1 was an amount which equals or exceeds 100 grams of cocaine.
Tr. 810:3-15. Accordingly, Bullitt was not prejudiced by any omission of the conjunction in the
first of several instructions dealing with the burden of proof for trafficking cocaine at least
equaling 100 grams. According to the record transcript, the verdict forms included the
specifications separately, for which Bullitt was also found guilty.1 The jury specifically found,
1
We note that the jury verdict forms, filed on December 5, 2013, were originally not
transmitted along with the record for the current appeal. Having raised no issues with the content of
the forms, read verbatim in disclosing the verdict, the transcript memorialization sufficed for the
based on the totality of the jury instructions, that all elements of the trafficking charge had been
proven beyond a reasonable doubt.
{¶12} In consideration of the jury instructions in their totality, the trial court did not
relieve the state of its burden to prove beyond a reasonable doubt that the drug involved was
cocaine equaling or exceeding 100 grams. Further, even if we could find error with one aspect
of the jury instructions, any omission of the conjunction in the trial court’s oral description of the
elements of the trafficking in cocaine count was not prejudicial. The trial court instructed the
jury at least three more times regarding the state’s burden to prove the trafficking charge, which
included the requirement that the jury determine whether the drug involved was cocaine equaling
or exceeding 100 grams in weight, and Bullitt conceded the amount and type of drug issue during
closing arguments to the jury. We find no merit to Bullitt’s sole assignment of error.
{¶13} The judgment of the trial court is affirmed.
It is ordered that appellee recover from appellant costs herein taxed. The court
finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas
court to carry this judgment into execution. The defendant’s conviction having been affirmed,
any bail pending appeal is terminated. Case remanded to the trial court for execution of
sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
purposes of appellate review. See State v. Calwise, 7th Dist. Mahoning No. 00 CA 77,
2003-Ohio-3463, ¶ 34 (the failure to file the verdict forms is not reversible error where transcript of
proceedings indicates the content of the forms was read into the record and there is no dispute
regarding any disparities).
SEAN C. GALLAGHER, JUDGE
MARY J. BOYLE, A.J., and
MELODY J. STEWART, J., CONCUR