State v. Wilkinson , 2014 Ohio 5791 ( 2014 )

[Cite as State v. Wilkinson, 2014-Ohio-5791.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100859
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
CARLIA C. WILKINSON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-13-573185-A
BEFORE: Keough, P.J., McCormack, J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: December 31, 2014
ATTORNEY FOR APPELLANT
Susan J. Moran
55 Public Square, Suite 1616
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Fallon Radigan
Carl Mazzone
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, P.J.:
{¶1} Defendant-appellant, Carlia Wilkinson, appeals her convictions. For the reasons
that follow, we affirm.
{¶2} In 2013, Wilkinson was charged with one count each of drug trafficking, drug
possession, and possessing criminal tools in connection with a controlled delivery of a package
containing marijuana. The matter proceeded to trial where the jury heard the following
evidence.
{¶3} Postal inspector Bryon Green testified that he is employed with the postal inspection
service that investigates packages delivered by USPS that have indicators of drug trafficking.
According to Green, indicators include packages that are shipped overnight from target source
areas for narcotics including California, Arizona, and Texas, packages containing handwritten
labels, and excessive shipping costs paid in cash. Once a package containing these indicators is
flagged, a search is done through a database to determine whether the sender or recipient’s name
is associated with the addresses listed. Once it is revealed that the sender or recipient are
fictitious, a canine trained to detect the odor of illegal narcotics is used to see if the canine will
“alert” to the package. If the canine alerts, a search warrant is obtained to open the package, and
if suspected illegal narcotics are found in the package, the contents are photographed, field
tested, and weighed. Once the presence of illegal narcotics is verified, the package is either
seized or a detection device is placed inside the package and a controlled delivery is conducted.
{¶4} Green testified that he was working in his capacity at the USPS on April 3, 2013,
inspecting suspicious packages. He testified that he identified two identical large parcels
shipped from Texas going to different addresses in the 44102 zip code — Neville Avenue and
West 99th Street. He further testified that he suspected that these parcels contained narcotics
because both packages were sent overnight with over $90 in paid postage, they contained
handwritten labels, the sender and receiver each shared the same last name, and after a search of
the names in the database, the names associated with the addresses listed were fictitious.
Relevant to this appeal, the recipient of the Neville Avenue parcel was “Brandon Wilkson.”
After flagging the two parcels, Green contacted Cleveland police.
{¶5} Detective Patrick Andrejcak testified that he works in the drug interdiction unit with
K-9 patrol and does drug investigations using a narcotics dog. He testified that he was contacted
to investigate two suspicious packages. He brought his canine partner, Daisy, into a room filled
with packages. Daisy alerted to the Neville Avenue package. This same procedure was
followed when investigating the other parcel addressed to the West 99th Street address.
{¶6} Based on the physical indicators, the database revelations, and the canine alert,
Inspector Green obtained a search warrant to open both parcels. Inside each parcel, he
discovered a red bucket wrapped in green cellophane containing nearly ten pounds of suspected
marijuana. The contents of both parcels field tested positive for marijuana.
{¶7} After photographing the contents of the parcels, the officers placed a detection
device, which would indicate when the parcel was opened inside the Neville Avenue parcel.
The package was resealed, and it was sent out for a controlled delivery. Additionally, based on
the contents, the officers obtained an anticipatory search warrant, which would allow them to
enter the Neville Avenue residence once the detection device indicated the package was opened.
{¶8} Inspector Green, dressed as a postal worker, delivered the package to the Neville
address with the assistance of the Cleveland police who provided surveillance. Inspector Green
knocked on the door, and Wilkinson came out from the backyard. While presenting the address
slip facing up toward Wilkinson, Green asked if “Brandon Wilkson” lived or received mail there,
and according to Green, Wilkinson answered “yes.” Wilkinson accepted the package and,
using the top of the box near the address label, signed an illegible signature on the receipt card.
The parcel was delivered at approximately 2:11 p.m.
{¶9} Officer John Cline, a tech officer in the narcotics division, was monitoring the
detection device that was placed in the parcel. He testified that approximately five minutes after
being advised that the parcel was delivered, he received a signal from his transmitter that the
parcel had been opened. He relayed the information to fellow officers to execute the
anticipatory search warrant. Officer Cline entered the Neville residence and saw the parcel on
the kitchen floor with the box flaps open revealing the bucket. He stated he could not see inside
the bucket.
{¶10} Inspector Green returned to the house after the package was opened and observed
the open parcel on the kitchen floor with the bucket still inside the box. He could not recall
whether the package was still intact from the way it was repackaged, but the marijuana was not
removed from the bucket. Green testified that after Wilkinson was Mirandized, she denied
knowing anything about the parcel, its contents, and anyone named “Brandon Wilkson.”
{¶11} Homeland Security Special Agent Patrick Donlin testified that he was a member
of the team that entered the Neville residence to execute the search warrant. He testified that the
package was opened at 2:14 p.m. He further testified that he interviewed Wilkinson with
Detective Andrejcak at the police station where Wilkinson admitted to accepting the parcel, but
denied knowing the contents inside the parcel. Once they told her about the contents of the
package, Wilkinson stated that the package was for Marcus, whom she described as a friend
since 2007. According to Donlin, Wilkinson further admitted that on two previous occasions
she allowed Marcus to receive packages at her residence. She told Donlin that the first time a
package was delivered for Marcus, the package was just left at her house and Marcus picked it up
on his own. The second time, she received the package and Marcus picked it up from her.
Donlin testified that Wilkinson denied knowing if Marcus was a drug dealer. The identity of
Marcus was never revealed or discovered.
{¶12} At the officer’s request, Wilkinson placed a phone call to Marcus to see if he
would make any admissions about the parcel. However, Marcus denied any knowledge about
the parcel, was evasive, and hung up on Wilkinson. Wilkinson’s cell phone records indicated
that she spoke with Marcus the night before the parcel was delivered and that several
short-worded text messages were sent throughout the day, leading up to the delivery, which the
state argued were discussions about the parcel being delivered. Additionally, the records
revealed that minutes after the parcel was opened and the police entered the house, Marcus called
Wilkinson’s phone twice — 2:17 p.m. and again at 2:21 p.m.
{¶13} Wilkinson testified in her defense. She stated that she did not expect a delivery of
any package to her house on April 3, 2013, and she denied knowing about the contents of the
package. However, out of curiosity and upon belief that the postal worker said “Wilkinson,” she
accepted the package and took it inside. She testified that she opened the package without
looking at the shipping label, and once she saw the black box with a blinking light inside the
package, she called her mother. Moments later, the police stormed into her house, questioned
her, searched her house, and arrested her. Approximately five to ten minutes after the police
arrived, Wilkinson’s mother arrived.
{¶14} Wilkinson admitted that on two prior occasions her friend Marcus asked her if he
could have a package delivered to her address. She testified that the prior package was left on
her porch, which Marcus retrieved on his own. She denied that a second package was
previously sent. She testified that she linked this package with Marcus because he was the only
person to ever have something sent to her house.
{¶15} When questioned about her affiliation and relationship with Marcus, her testimony
became contradictory and confusing. She stated that she went to high school with Marcus, yet
did not know his last name. She stated that he was going to help her buy a car, yet she stated she
was not close with him, they only hung out once or twice, and did not know what he did for a
living. She told the jury she spoke to him once in awhile, but then stated they spoke once a
week. She testified that on April 3 she was supposed to hang out with Marcus at a friend’s
house, which was close to her mother’s residence. But after her friends left, the plan was
cancelled. Wilkinson testified that she does not let Marcus inside her house because she had
been robbed previously, yet she allowed him to have a package delivered to her house.
{¶16} Wilkinson explained to the jury that the text messages she received and sent to
Marcus related to her car getting towed to her mother’s house that day. Evidence was presented
that her car was towed to her mother’s house.
{¶17} The state recalled Inspector Green as a rebuttal witness. He testified about the
second package flagged as suspicious on April 3, 2013, that was addressed to a fictitious
recipient residing on West 99th Street. Green testified that the defendant’s mother lived at the
West 99th Street address. According to Green, when he advised the defendant’s mother of this
information, she appeared aggravated and angry, yelling at her daughter in an accusatory manner.
{¶18} The jury found Wilkinson guilty of all counts. After merging the drug trafficking
and drug possession counts, the trial court sentenced Wilkinson to one year of community control
sanctions, to run concurrent with a one-year community control sentence on the possessing
criminal tools charge. Wilkinson’s cell phone was ordered forfeited.
{¶19} Wilkinson appeals raising three assignments of error.
I. Sufficiency of the Evidence
{¶20} The state’s theory of the case was that Wilkinson acted as the “middleman” or
“mule” in this transaction — accepting the package from the sender with the intent of forwarding
the package on to the seller. Wilkinson’s defense at trial and on appeal is that she merely
accepted the package and had no knowledge of the contents. Accordingly, in her first
assignment of error, Wilkinson contends that the state failed to present sufficient evidence of the
offenses charged.
{¶21} The test for sufficiency requires a determination of whether the prosecution met its
burden of production at trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598,
¶ 12. 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 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. State v. Thompkins, 78 Ohio St.3d 380, 386, 678
N.E.2d 541 (1997). Additionally, when reviewing the sufficiency of the evidence, an appellate
court is to consider all of the evidence admitted at trial, even if the evidence was improperly
admitted. State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, 903 N.E.2d 284, ¶19.
{¶22} It is well established that “‘circumstantial evidence is sufficient to sustain a
conviction if the evidence would convince the average mind of the defendant’s guilt beyond a
reasonable doubt.’” State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, 837 N.E.2d 315, ¶
75, quoting State v. Heinish, 50 Ohio St.3d 231, 238, 553 N.E.2d 1026 (1990). Circumstantial
evidence carries the same weight as direct evidence. State v. Jenks, 61 Ohio St.3d 259, 272, 574
N.E.2d 492 (1991). Circumstantial evidence is proof of facts or circumstances by direct
evidence from which the trier of fact may reasonably infer other related or connected facts that
naturally or logically follow. State v. Beynum, 8th Dist.Cuyahoga No. 69206, 1996 Ohio App.
LEXIS 2143 (May 23, 1996).
A. Drug Trafficking and Possession
{¶23} In Count 1, Wilkinson was charged with drug trafficking in violation of R.C.
2925.03(A)(2). The jury was instructed that Wilkinson “knowingly shipped, transported and/or
delivered a controlled substance when she knows or has reasonable cause to believe that the
controlled substance was intended for sale or resale by the Defendant or another person.” In
Count 2, Wilkinson was charged with drug possession in violation of R.C. 2925.11(A), which
prohibits a person from knowingly obtaining, possessing, or using a controlled substance or a
controlled substance analog. The state proceeded in this case on a theory of complicity.
{¶24} The jury was given the following instruction on a complicity:
However, the State of Ohio does not necessarily contend that [Wilkinson] directly
and personally committed each of these offenses. The State contends she either
personally committed one or more of the offenses or she aided and abetted a
person who directly or personally committed one or more of the offenses.
A person who aids or abets in the commission of a crime is regarded as if she
were the principal offender under Ohio law is as guilty as if she personally
committed every act constituting the offense.
Under the laws of Ohio, however, no person can be found guilty of aiding and
abetting another in committing an offense unless that person is acting with the
same kind of culpability required for the commission of the offense.
Now, by kind of culpability the law means the same mental state, be it purposely
or knowingly. Aid means to help, assist, or strengthen. Abet means to
encourage, counsel, incite, or assist.
(Tr. 694-695.)
{¶25} Wilkinson contends that because she merely accepted the package, the state failed
to produce sufficient evidence to prove that she had knowledge of the existence of the marijuana
inside the package in order to be convicted of drug possession or drug trafficking. “A person
acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause
a certain result or will probably be of a certain nature. A person has knowledge of circumstances
when he is aware that such circumstances probably exist.” R.C. 2901.22(B). In State v.
Teamer, 82 Ohio St.3d 490, 492, 696 N.E.2d 1049 (1998), the Ohio Supreme Court held that the
issue of whether a person charged with drug possession knowingly possessed, obtained, or used a
controlled substance “is to be determined from all the attendant facts and circumstances
available.”
{¶26} In support of her argument, Wilkinson relies on this court’s decision in State v.
Collins, 8th Dist. Cuyahoga No. 95422, 2011-Ohio-4808, wherein this court reversed a drug
trafficking conviction reasoning that “[r]eceipt of drugs alone is not one of the enumerated
methods of violating the ‘preparation for shipment statute.’” Collins at ¶ 29. In Collins, the
defendant received two packages that both contained marijuana. The first package was
delivered and accepted by Collins’s brother. A short time later, Collins arrived at the house and
carried the package a few houses down where he tore the shipping label off the package. The
second package was delivered and accepted by Collins, himself. After taking the package inside
the house, he came back out of the house and placed the package on the porch. After both of
these deliveries, Collins was arrested and charged with drug trafficking in violation of R.C.
2925.03(A)(2). The state contended that Collins’s actions amounted to drug trafficking on the
basis that he “prepared the marijuana for distribution by delivery of the packages.” This court
disagreed and explained,
Unless police can lay out the conspiracy to distribute drugs, including details on
the origin of shipment, method of shipment, and parties involved in the shipment
(real or otherwise), in a manner designed to prove the act of receipt is part of an
overall drug conspiracy, the elements that an offender prepares a drug for
shipment, or ships a drug, or transports a drug, or delivers a drug, or prepares for
distribution a drug, or actually distributes a controlled substance, when the
offender knows or has reasonable cause to believe that the controlled substance is
intended for sale or resale by the offender or another person, are not met by
evidence of receipt alone.
Id. at ¶ 30.
{¶27} Although Collins is distinguishable from the facts in this case because Collins
analyzed the “preparation for shipment” aspect of R.C. 2925.03(A)(2), we find the analysis
instructive in deciding the case against Wilkinson.
{¶28} In this case, Wilkinson was charged with shipping, distributing, or delivering the
controlled substance under a complicity theory. The state presented evidence that two packages
of similar size, weight, origin of shipment, and appearance were flagged at the post office.
These packages both contained a similar quantity of marijuana. The senders and recipients on
each package were fictitious with one package being delivered to Wilkinson’s address, and the
other to Wilkinson’s mother’s address. Finally, the state presented evidence of cryptic,
short-worded text messages sent between Wilkinson and Marcus that would lead a reasonable
person to infer that the subject matter pertained to the delivery of the parcel. This inference is
strengthened by Wilkinson’s own testimony that she previously allowed Marcus to receive
packages at her house. Finally, the inference is reasonable in that she immediately opened the
parcel that was not addressed to her and when she saw the blinking device, she called her mother,
who was also receiving a similar package that day. The evidence showed that within minutes of
the package being delivered and opened, Marcus had called Wilkinson twice — 2:17 p.m. and
again at 2:21 p.m.
{¶29} Based on this court’s criteria set forth in Collins, we find that the state established
that Wilkinson’s receipt of the parcel was part of the overall conspiracy to trafficking in drugs,
and that she received the package with knowledge that it contained illegal narcotics.
{¶30} This holding is consistent with a similar case this court considered in State v.
Smith, 8th Dist. Cuyahoga No. 67524, 1995 Ohio App. LEXIS 2464 (June 15, 1995). In Smith,
a controlled delivery of a package containing marijuana was addressed to and accepted by the
defendant. The defendant argued that the unopened package and lack of drug paraphernalia
found in her residence established that she lacked knowledge of the contents of the package.
This court found that the facts and circumstances surrounding the delivered and the contradictory
testimony by the defendant, allowed the factfinder to reasonably conclude that she acted as the
middleman in receiving the package containing marijuana.
{¶31} Much like in Smith, the state in this case proposed that Wilkinson’s role was a
middle person or mule in the drug operation. This theory explained why Wilkinson did not have
any items indicative of drug trafficking in her home. Furthermore, the circumstances and facts
surrounding the delivery and Wilkinson’s contradictory testimony allowed the factfinder to
reasonably conclude she was acting as the middleman in this transaction.
{¶32} Accordingly, viewing the evidence in the light most favorable to the state,
sufficient evidence was presented to support Wilkinson’s drug trafficking and drug possession
convictions.
B. Possessing Criminal Tools
{¶33} In Count 3, Wilkinson was charged with possessing criminal tools in violation of
R.C. 2923.24(A), which prohibits a person from possessing or having under the person’s control
any substance, device, instrument, or article, with purpose to use it criminally. Specifically, the
state alleged her cell phone was used as a criminal tool.
{¶34} In this case, the state presented evidence that Wilkinson used her cell phone to
communicate with Marcus, the purported intended recipient of the package. The testimony and
evidence demonstrated that the increased frequency of communications along with the cryptic
short-worded conversation between Wilkinson and Marcus allowed the factfinder to properly
infer that Wilkinson was accepting a package for Marcus on April 3, and that she was using her
cell phone to further facilitate the commission of the offenses.
{¶35} Accordingly, viewing the evidence in light most favorable to the state, sufficient
evidence was presented to support Wilkinson’s convictions of possessing criminal tools.
{¶36} Wilkinson’s first assignment of error is overruled.
II. Manifest Weight of the Evidence
{¶37} “‘A manifest weight challenge * * * questions whether the prosecution met its
burden of persuasion.’” State v. Ponce, 8th Dist. Cuyahoga No. 91329, 2010-Ohio-1741, ¶ 17,
quoting State v. Thomas, 70 Ohio St.2d 79, 80, 434 N.E.2d 1356 (1982). The
manifest-weight-of-the-evidence standard of review requires us to review the entire record,
weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and
determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and a new
trial ordered. State v. Otten, 33 Ohio App.3d 339, 515 N.E.2d 1009 (9th Dist.1986), paragraph
one of the syllabus. The discretionary power to grant a new trial should be exercised only in
exceptional cases where the evidence weighs heavily against the conviction. Thompkins, 78
Ohio St.3d at 386, 678 N.E.2d 541.
{¶38} Wilkinson argues in her second assignment of error that because her credibility
was not impeached, her testimony and explanation regarding the content of the text messages
reveal that her convictions were against the manifest weight of the evidence. We disagree.
{¶39} Under well-settled precedent, we are constrained to adhere to the principle that the
credibility of witnesses and the weight to be given to their testimony are matters for the trier of
fact to resolve. See State v. DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967).
Although we consider the credibility of witnesses in a manifest weight challenge, we are mindful
that the determination regarding witness credibility rests primarily with the trier of fact because
the trier of fact is in the best position to view the witnesses and observe their demeanor, gestures,
and voice inflections — observations that are critical to determining a witness’s credibility.
State v. Clark, 8th Dist. Cuyahoga No. 94050, 2010- Ohio-4354, ¶ 17, citing State v. Hill, 75
Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996), and State v. Antill, 176 Ohio St. 61, 66, 197
N.E.2d 548 (1964). The trier of fact is free to accept or reject any or all the testimony of any
witness. State v. Smith, 8th Dist. Cuyahoga No. 93593, 2010-Ohio-4006, ¶ 16.
{¶40} After review, we find that Wilkinson’s convictions are not against the manifest
weight of the evidence. Admittedly, this case hinges on credibility and whether the jury
believed Wilkinson. The jury could not ignore the fact that Wilkinson accepted a package not
addressed to her and that she immediately opened. Once she saw the blinking device inside the
parcel, she called her mother who coincidentally lived at the address where another parcel
containing marijuana was to be delivered.
{¶41} The fact that Wilkinson provided the factfinder with an alternate version or
explanation of the events and text messages does not automatically lead to the conclusion that
her conviction was against the manifest weight of the evidence. The jury, as the factfinder, was
able to listen to each witness presented and judge their respective credibility. The factfinder was
within its province to credit the testimony of the officers and discredit Wilkinson’s testimony.
State v. Whitsett, 8th Dist. Cuyahoga No. 101182, 2014-Ohio-4933, citing State v. Howard, 4th
Dist. Ross No. 07CA2948, 2007-Ohio-6331, ¶ 16.
{¶42} Accordingly, we cannot say that the jury lost its way in finding Wilkinson guilty,
and we find that this is not the “exceptional case in which the evidence weighs heavily against
the convictions” such that a new trial should be ordered. Thompkins, 78 Ohio St.3d at 387, 678
N.E.2d 541.
{¶43} Wilkinson’s second assignment of error is overruled.
III. Admissibility of Testimony
{¶44} In her third assignment of error, Wilkinson contends that the trial court erred in
allowing three of the state’s witnesses to opine regarding her guilt, in violation of the Ohio Rules
of Evidence and in violation of the right to a fair trial and in violation of the due process clause
of the Fourteenth Amendment of the United States Constitution.
{¶45} Specifically, she contends that Officer Cline, Agent Donlin, and Officer Andrejcak
were permitted to testify that she was a “middleman” or “mule,” and that her possession of ten
pounds of marijuana was evidence of trafficking, and that her phone calls and text messages to
Marcus were evidence of trafficking. She contends that this testimony was extremely prejudicial
and usurped the roll of the trier of fact. Additionally, she argues that the officers were permitted
to testify as “experts” without first providing the proper foundation and without the filing of an
expert report. Finally, she contends that the testimony was unnecessary for the factfinder as the
testimony was not beyond the ordinary jurors understanding and the jury was capable of forming
competent conclusions absent the opinion.
{¶46} In this case, Wilkinson did not object or withdrew her objection to the testimony
given by the officers, thereby waiving all but plain error. Plain error consists of an obvious
error or defect in the trial proceeding that affects a substantial right. Crim.R. 52(B). Therefore,
plain error occurs only when, but for the error, the outcome of the trial clearly would have been
different. State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978); State v. Hill, 92 Ohio St.3d
191, 203, 749 N.E.2d 274 (2001).
{¶47} In support of her arguments on appeal, Wilkinson relies on State v. Johnson, 10th
Dist. Franklin No. 02AP-373, 2002-Ohio-6957. In Johnson, police officers who did not witness
the crime were permitted to state that based on their law enforcement training, and faced with the
same facts and circumstances as presented at trial, they would not have shot another in
self-defense. The court held that the testimony usurped the role of the jury because without
actually witnessing the event, the officers were asked to draw a conclusion based on the facts
presented.
{¶48} We find Johnson distinguishable because each testifying officer in this case was
involved in the investigation and controlled delivery of the package. Therefore, we find that the
officers’ testimonies and opinions were admissible as lay witnesses pursuant to Evid.R. 701.
{¶49} Evid.R. 701 provides: “If the witness is not testifying as an expert, the witness’
testimony in the form of opinions or inferences is limited to those opinions or inferences which
are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding
of the witness’ testimony or the determination of a fact in issue.”
{¶50} In State v. Delaboin, 8th Dist. Cuyahoga No. 90406, 2008-Ohio-4093, the officer
testified that based on his experiences with drug users and drug dealers, the amount of crack
cocaine he recovered was consistent with an amount for shipment and sale. This court held that
the officer’s opinion was admissible pursuant to Evid.R. 701 because it was based on his training
and experience as a police officer of seven years, which included arresting both drug users and
dealers. Id. at ¶ 26.
{¶51} Appellate courts have similarly determined that some testimony offered by
officers and detectives is lay person witness testimony even though it is based on the officer –
detective’s specialized knowledge. State v. McClain, 6th Dist. Lucas No. L-10-1088,
2012-Ohio-5264, ¶ 13 (Detective’s testimony that quantities of narcotics recovered during the
execution of the search warrant suggested that they were for sale as opposed to personal use was
admissible under Evid.R. 701 as lay person opinion testimony because his testimony was based
on his training and experience.); State v. Williams, 9th Dist. Summit No. 25716,
2011-Ohio-6604, ¶ 11 (Officer’s testimony that location was a methamphetamine lab was proper
Evid.R. 701 testimony because it was based on personal observation from items taken from
garbage and found in the house.).
{¶52} Much like in Delaboin, McClain, and Williams, the testimony given by the officers
in this case was based on their training and experience with narcotics arrests, and their personal
observations with the investigation and controlled delivery of the parcel.
{¶53} The officers opined that Wilkinson’s actions and admissions indicated that her
role in this matter was that of a “middleman” or “mule,” and that the amount contained in the
parcel was indicative of drug trafficking. Narcotics Officer Cline explained to the jury that
normally drug paraphernalia is not discovered when a middleman or mule is involved because
that person is only receiving the package for someone else. Thus, according to Cline, Wilkinson
was the middleman in this transaction. Agent Donlin, who previously worked for the Drug
Enforcement Agency for six years and currently for Homeland Security, opined that “mules” or
“nominees” operate for money or drugs. And based on the evidence uncovered of Wilkinson’s
involvement with Marcus, Agent Donlin opined that Wilkinson was a mule or nominee. Officer
Andrejcak, a narcotics officer and a 14-year veteran in law enforcement, testified that 4900
grams of marijuana was consistent with trafficking, not personal use.
{¶54} The officers’ testimony and opinions were based on their training and experience,
which was applied to their firsthand observations of the parcel, its packaging, the quantity of the
contents, and the circumstances surrounding Wilkinson’s acceptance of the package. The
testimony was helpful to determine a fact in issue; therefore, their testimony was properly
admitted under Evid.R. 701 and was not plain error.
{¶55} Even excluding the officers’ opinions and testimonies, evidence existed for the
jury to find Wilkinson guilty of the offenses. Wilkinson accepted the package, signing her name
illegibly on the receipt verification card. She admitted to law enforcement that she previously
allowed her friend Marcus to receive a package at her address. An identical package was sent to
her mother’s address, who also happened to be the person she called when she discovered the
beacon in her parcel. The jury heard that she and Marcus increased their frequency in phone
calls, yet the content of the message was shorter than normal and according to Wilkinson was
“code.” Based on the circumstances, the jury did not need to hear that Wilkinson’s role in this
transaction was that of a mule or that the amount of marijuana in the parcel was indicative of
drug trafficking, because the evidence and Wilkinson’s own testimony established that she was
an integral intermediary part in this transaction. Accordingly, Wilkinson’s third assignment of
error is overruled.
{¶56} Judgment 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.
KATHLEEN ANN KEOUGH, PRESIDING JUDGE
TIM McCORMACK, J., and
EILEEN T. GALLAGHER, J., CONCUR