State v. Greenway ( 2017 )

[Cite as State v. Greenway, 2017-Ohio-7729.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-160511
TRIAL NO. C-15CRB-10942
Plaintiff-Appellee, :
O P I N I O N.
vs. :
LEAH GREENWAY, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
Remanded
Date of Judgment Entry on Appeal: September 22, 2017
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean M. Donovan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Demetra Stamatakos,
Assistant Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
M OCK , Presiding Judge.
{¶1} Following a bench trial, defendant-appellant Leah Greenway was
convicted of one count of possessing drug-abuse instruments under former R.C.
2925.12. She presents four assignments of error for review. We find merit in her
fourth assignment of error related to her sentencing. Consequently, we affirm the
finding of guilt, but vacate the sentence and remand the matter for resentencing.
I. Facts and Procedure
{¶2} The record shows that on May 1, 2015, Officer Michael Hackman of the
Forest Park Police Department responded to a radio call for a “non-breather,
someone that had overdosed.” When he arrived, he entered a residence and saw a
woman sitting on a couch. The woman, who identified herself as Greenway’s mother,
directed him to the basement.
{¶3} When he went down to the basement, Officer Hackman saw the life
squad “working on the defendant.” He said it appeared that they were “doing life
saving measures.” He further stated that he could see that Greenway was breathing
and that she was talking “somewhat” and moving.
{¶4} Officer Hackman also observed a syringe on the floor at the foot of the
bed where Greenway was lying. He stated that it was between her right leg and a
concrete wall. Hackman collected the syringe and secured it. Later he submitted it
for testing at the Hamilton County Coroner’s laboratory. The lab analysis showed
that residue in the syringe contained morphine and fentanyl. Greenway was
transported to the hospital and a warrant was later issued for her arrest.
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II. Questioning by the Trial Court
{¶5} In her first assignment of error, Greenway contends that the trial court
violated Evid.R. 614(B) and her right to due process by questioning Officer
Hackman, the state’s only witness. She argues that the court ceased to be impartial
when it stated on the record that the questions were meant to elicit a specific fact
necessary for conviction. This assignment of error is not well taken.
{¶6} Evid.R. 614(B) allows the court to interrogate witnesses in an impartial
manner. State v. Cepac, 149 Ohio St.3d 438, 2016-Ohio-8076, 75 N.E.3d 1185, ¶ 70;
State v. Payne, 1st Dist. Hamilton No. C-060437, 2007-Ohio-3310, ¶ 12. Generally,
we review the trial court’s interrogation of a witness for an abuse of discretion.
Payne at ¶ 12; State v. Davis, 79 Ohio App.3d 450, 454, 607 N.E.2d 543 (4th
Dist.1992).
{¶7} After Officer Hackman had testified, the trial court began to question
him. The court asked the officer if he was able to tell the court “what * * * the life
squad was doing to her.” When Greenway objected on a number of grounds, the
court held a conference in chambers. It stated:
Well, I’m not entirely conversant with what happens on one of these
runs when somebody ODs, although it isn’t uncommon, we hear more
and more that people say that either officers or life squad are
administering something commonly referred to that I heard of called
Narcan.
***
So what I’m attempting to elicit out of the officer right now is whether
he observed some kind of administration of Narcan or something like
that, so that’s the purpose of my question.
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{¶8} Greenway explained more about the basis of her objections. The court
then stated:
Well, what I was doing is excavating his answer further. They were
working on * * * her. Do you know what they were doing? So if he
knows what they are doing and if he says Narcan, I’ll have to evaluate
its weight, so I was giving you the courtesy of doing it outside of [his
presence] so that he doesn’t – so that he’s not overly stimulated to an
answer by doing it outside of [his presence]. I don’t want him to get –
I don’t want you to be treated unfairly by some lightbulb going on in
his head, oh he wants me to say Narcan, so that’s why I called us in
here.
{¶9} The court overruled Greenway’s objection and again asked Officer
Hackman what the life squad was doing to Greenway. He replied that they were
checking her vital signs and preparing her for transport. The officer started to testify
about something a member of the life squad had told him, but Greenway objected on
the basis of hearsay. The trial court sustained the objection.
{¶10} The court then asked Officer Hackman if he saw the life squad
administer any medication to Greenway. He answered: “All of the medicine –
including Narcan, had been given prior to my arrival.” Defense counsel objected on
the basis that his answer was outside of the officer’s personal knowledge. The court
stated that “we’re going to strike what you said about the Narcan being prior
administered.” The court then asked him if he saw “Narcan there out in the open
somewhere?” The officer answered: “[T]he equipment and containers for the
Narcan were still laying on the floor around the area where the defendant was being
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OHIO FIRST DISTRICT COURT OF APPEALS
worked on.” The court asked him “Did you see it with your own eyes?” and Officer
Hackman replied that he did.
{¶11} We cannot hold that the trial court’s questioning of the witness was an
abuse of discretion. Greenway argues that the court’s questioning went to an
essential element of the state’s case. We disagree. The evidence would have been
sufficient to support the conviction even without the officer’s testimony about
Narcan. Further, “[i]n regard to the examination of witnesses, the trial judge is
something more than a mere umpire or sergeant at arms to preserve order in the
courtroom.” Davis, 79 Ohio App.3d at 456, 607 N.E.2d 543. Rather, the court “has
active duties to perform in maintaining justice and in seeing that the truth is
developed, and may, for such purpose, put proper questions to the witnesses, and
even leading questions.” Id. Under the circumstances, we cannot say that the trial
court’s questioning was so arbitrary, unreasonable or unconscionable as to connote
an abuse of discretion. See State v. Clark, 71 Ohio St.3d 466, 470, 644 N.E.2d 331(1994).
{¶12} The trial court’s questioning would only have been improper if it had
demonstrated bias, as argued by Greenway. A criminal trial before a biased judge is
fundamentally unfair and denies a defendant due process of law. Cepac, 149 Ohio
St.3d 438, 2016-Ohio-8076, 75 N.E.3d 1185, at ¶ 73. The presence of a biased judge
is structural error, which, if demonstrated, requires reversal. Id.The term ‘biased’ implies a hostile feeling or spirit of ill will or undue
friendship or favoritism toward one of the litigants or his attorney,
with the formation of a fixed anticipatory judgment on the part of the
judge, as contradistinguished from an open state of mind which will be
governed by the law and the facts.
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Id. at ¶ 73, quoting State ex rel. Pratt v. Weygandt, 164 Ohio St.3d 463, 132 N.E.2d
191 (1956), paragraph four of the syllabus; State v. Loudermilk, 1st Dist. Hamilton
No. C-160487, 2017-Ohio-7378, ¶ 21. The “threshold inquiry” is “whether, with
reference to a range of acceptable, though not necessarily model, judicial behavior,
the [trial] court’s conduct falls demonstrably outside this range so as to constitute
hostility or bias.” Cepac at ¶ 74, quoting McMillan v. Castro, 405 F.3d 405, 410 (6th
Cir.2005).
{¶13} Nothing in the record shows that the trial judge exhibited favoritism
toward the state and against Greenway or that he did not have an open mind.
Therefore, we cannot say that the trial judge exhibited bias, and we overrule
Greenway’s first assignment of error.
III. Crime Lab Report
{¶14} In her second assignment of error, Greenway contends that the trial
court erred in admitting the crime laboratory report into evidence. She argues that
the report was not admissible because the accompanying notarized statement by the
signer of the report was not also entered into evidence. This assignment of error is
not well taken.
{¶15} The state served the lab report and the accompanying affidavit on
Greenway as required by R.C. 2925.51(B). It also notified her that if she did not
request the testimony of the signer of the report within seven days after receiving the
report, it would be prima-facie evidence of the test results. See State v. Pasqualone,
121 Ohio St.3d 186, 2009-Ohio-315, 903 N.E.2d 270, ¶ 16; State v. Garrett, 5th Dist.
Richland No. 03-CA-49, 2004-Ohio-2231, ¶ 19-20. The failure to serve the report
and to include all of the necessary information as specifically required by the statute
would have rendered it inadmissible. See State v. McClain, 6th Dist. Lucas No. L-10-
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1088, 2012-Ohio-5264, ¶ 18-22; State v. Putnam, 8th Dist. Cuyahoga No. 91044,
2009-Ohio-233, ¶ 16-18; State v. Bethel, 5th Dist. Tuscarawas No. 2002AP0010,
2002-Ohio-5437, ¶ 9. Since Greenway received the report and the required
notification and she did not request the testimony of the analyst, she waived the right
to have the analyst testify at trial and to cross-examine him. See Pasqualone at ¶ 18-
21.
{¶16} Courts have held that the failure to submit a properly notarized
affidavit into evidence was harmless or was not plain error when it did not prejudice
the defendant. See State v. Hudson, 8th Dist. Cuyahoga No. 79010, 2002 WL
472304, *3 (Mar. 28, 2002); State v. Rodriquez, 66 Ohio App.3d 5, 17, 583 N.E.2d
384 (6th Dist.1990). In this case, Greenway has not demonstrated how the failure to
include the affidavit was prejudicial. She makes no claim that anything in the report
itself was inaccurate or that a properly notarized chemical analysis would have
differed in any material respect from the exhibit presented at trial. See Hudson at
*3.
{¶17} No reasonable probability existed that the failure to submit the
affidavit contributed to Greenway’s conviction. Therefore, any error was harmless.
See State v. Bayless, 48 Ohio St.2d 73, 357 N.E.2d 1035 (1976), paragraph seven of
the syllabus; State v. Brundage, 1st Dist. Hamilton No. C-030632, 2004-Ohio-6436,
¶ 33. Consequently, we overrule Greenway’s second assignment of error.
IV. Weight and Sufficiency
In her third assignment of error, Greenway contends that the evidence was
insufficient to support the conviction. R.C. 2925.12(A) provides:
No person shall knowingly make, obtain, possess, or use any
instrument, article, or thing the customary and primary purpose of
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OHIO FIRST DISTRICT COURT OF APPEALS
which is for the administration or use of a dangerous drug, other than
marihuana, when the instrument involved is a hypodermic or syringe,
whether or not of crude or extemporized manufacture or assembly,
and the instrument, article, or thing involved has been used by the
offender to unlawfully administer or use a dangerous drug, other than
marihuana, or to prepare a dangerous drug, other than marihuana, for
unlawful administration or use.
To obtain a conviction under this statute, the state must prove that the offender had
used the syringe to unlawfully administer, use, or prepare a dangerous drug. State v.
Young, 5th Dist. Knox Nos. 16CA24 and 165CA25, 2017-Ohio-7051, ¶ 39; State v.
Lorenzo, 9th Dist. Summit No. 26214, 2012-Ohio-3145, ¶ 20; State v. Davis, 1st Dist.
Hamilton No. C-110620, 2012-Ohio-2642, ¶ 8.
{¶18} Our review of the record shows that a rational trier of fact, after
viewing the evidence in a light most favorable to the prosecution, could have found
that the state proved beyond a reasonable doubt all of the elements of possessing
drug-abuse instruments, including the use of the syringe. Therefore, the evidence
was sufficient to support the conviction. See State v. Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492 (1991), paragraph two of the syllabus; State v. Ojile, 1st Dist. Hamilton
Nos. C-110677 and C-110678, 2012-Ohio-6015, ¶ 48. While the evidence that she
possessed drug-abuse instruments was circumstantial, circumstantial and direct
evidence possess the same probative value. Jenks at paragraph one of the syllabus;
State v. Lowery, 160 Ohio App.3d 138, 2005-Ohio-1181, 826 N.E.2d 340, ¶ 19 (1st
Dist.).
{¶19} Greenway further argues that her conviction was against the manifest
weight of the evidence. After reviewing the evidence, we cannot say that the trier of
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fact lost its way and created such a manifest miscarriage of justice that we must
reverse her conviction and order a new trial. Therefore, the conviction was not
against the manifest weight of the evidence. See State v. Thompkins, 78 Ohio St.3d
380, 387, 678 N.E.2d 541 (1997); Loudermilk, 1st Dist. Hamilton No. C-160487,
2017-Ohio-7378, at ¶ 5. We overrule Greenway’s third assignment of error.
V. Right of Allocution
{¶20} In her fourth assignment of error, Greenway contends that she was
denied her right of allocution at sentencing. She argues that the trial court did not
address her personally and ask whether she wished to make a statement on her own
behalf or present any information in mitigation of her punishment. This assignment
of error is well taken.
{¶21} Crim.R. 32(A) provides that at the time of imposing sentence, the
court shall “afford counsel an opportunity to speak on behalf of the defendant and
address the defendant personally and ask if he or she wishes to make a statement in
his or her own behalf or present any information in mitigation of punishment.” The
right of allocution belongs to the defendant herself. State v. Osume, 1st Dist.
Hamilton No. C-140390, 2015-Ohio-3850, ¶ 23. The failure to afford a defendant
the right of allocution is not insignificant. State v. Long, 1st Dist. Hamilton No. C-
150713, 2016-Ohio-5345, ¶ 3. “A Crim.R. 32 inquiry is much more than an empty
ritual: it represents a defendant’s last opportunity to plead his case or express
remorse.” State v. Green, 90 Ohio St.3d 352, 359-360, 738 N.E.2d 1208 (2000). It
is not enough for the trial court to simply give defense counsel the opportunity to
speak on the defendant’s behalf. Osume at ¶ 23.
{¶22} Trial courts must “painstakingly adhere to Crim.R. 32, guaranteeing
the right of allocution.” Green at 359; Long at ¶ 4. If a trial court imposes sentence
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OHIO FIRST DISTRICT COURT OF APPEALS
without first asking the defendant if he or she wants to exercise the right of
allocution, resentencing is required unless the error is invited or harmless error.
State v. Campbell, 90 Ohio St.3d 320, 738 N.E.2d 1178 (2000), paragraph three of
the syllabus; Long at ¶ 4. An error will be deemed harmless only in unusual
circumstances. See State v. Matthews, 1st Dist. Hamilton No. C-140663, 2015-Ohio-
5075, ¶ 14; Osume at ¶ 24.
{¶23} The trial court erred in failing to address Greenway personally and ask
her if she wished to make a statement on her own behalf or to present any
information in mitigation of punishment before imposing sentence. No unusual
circumstances existed to render the error harmless. Consequently, we sustain
Greenway’s fourth assignment of error.
VI. Summary
{¶24} In sum, we find merit in Greenway’s fourth assignment of error.
Consequently, we reverse the sentence, and remand the cause for resentencing. We
affirm the trial court’s judgment in all other respects.
Judgment affirmed in part, reversed in part, and cause remanded.
C UNNINGHAM and M ILLER , JJ., concur.
Please note:
The court has recorded its own entry this date.
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