State v. Cobb , 2024 Ohio 458 ( 2024 )

[Cite as State v. Cobb, 2024-Ohio-458.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 112785
v. :
JOHN COBB, JR., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART; SENTENCE VACATED
IN PART; AND REMANDED
RELEASED AND JOURNALIZED: February 8, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-22-670729-B
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Benjamin Fuchs, Assistant Prosecuting
Attorney, for appellee.
Christopher M. Kelley, for appellant.
SEAN C. GALLAGHER, J.:
Appellant John Cobb, Jr. (“appellant”), appeals his convictions and
sentence in this case. Upon review, we vacate the sentence imposed upon Counts 1,
2, 3, and 4, which involve allied offenses of similar import, and we remand with
instructions for merger and resentencing. We otherwise affirm the judgment of the
trial court.
In June 2022, appellant was charged along with a codefendant,
Chaz A. Belton, under a seven-count indictment with two counts of trafficking
(Counts 1 and 3), four counts of drug possession (Counts 2, 4, 5, and 6), and
possessing criminal tools (Count 7). Each count included forfeiture specifications.
The case proceeded to a jury trial. Counts 3 and 4 were amended during trial to
change the amount of the drug and degree of the offense.
The testimony at trial revealed that on May 19, 2022, police detectives
were conducting surveillance near Craven Avenue and East 118th Street in Cleveland
for possible drug activity. Detective Daniel Hourihan, who was in an undercover
car, observed a white vehicle that was backed into a driveway and saw multiple
individuals approach the driver’s window and engage in suspected hand-to-hand
drug transactions. At one point, he saw the driver exit the white vehicle and have a
brief interaction at the driver’s side of another vehicle.
After a zone car was contacted to initiate a stop, Detective Matthew
Pollak approached the white vehicle and observed Belton standing outside of the
driver’s door and appellant in the passenger’s seat. Detective Pollak smelled a strong
odor of marijuana. In the vehicle, the detective found a large bag containing
suspected marijuana, an orange pill bottle with the name ripped off the label
containing 5 mg tablets of oxycodone, and a digital scale with THC residue. The
detective testified that drug traffickers will typically have scales to weigh their
product and ensure they are selling proper amounts. Two cell phones were also
seized, which the detective testified are also common among drug traffickers.
Detective Pollak searched Belton’s person and found $9,882 in cash,
the majority of which was rubber banded together, and a container with marijuana
dipped in THC wax.
Detective Cody Sheets searched Cobb’s person. Detective Sheets
noticed Cobb had a knife on a chain around his neck and, upon patting down Cobb,
he found a knife in Cobb’s pocket and a bag in the waistband of Cobb’s underwear
containing smaller bags that contained an aggregate total of 15.14 grams of
methamphetamine, which is typically sold as ecstasy. The detective testified that
having the smaller bags of drugs inside the larger bag was common among drug
traffickers for quicker transactions. Detective Sheets also found on Cobb a pill bottle
with the name ripped off the label containing 60 mg capsules of Vyvanse (30-unit
doses of lisdexamphetamine), a small bag containing 1.17 grams of cocaine
hydrochloride, $27 cash, and a 100-gram weight, which is commonly used by drug
traffickers to calibrate the scale.
Edgar Andrus, a forensic scientist from the Cuyahoga County
Regional Forensic Laboratory, testified to the lab results and the weight of the drugs
recovered. Other testimony and evidence were presented, which this court has
reviewed.
The jury found appellant guilty as to Counts 1-5, but not guilty on the
forfeiture specifications accompanying each count. The jury found appellant not
guilty on Counts 6 and 7. The trial court sentenced appellant on each of Counts 1-5
to be served concurrent to each other as well as to sentences imposed in other
matters. The total aggregate prison sentence in the case was six to nine years. The
trial court also imposed a $7,500 fine on Count 1.
Appellant timely filed this appeal. He raises four assignments of error
for our review.
Under his first assignment of error, appellant claims his convictions
are against the manifest weight of the evidence.
When reviewing whether a judgment is against the manifest weight
of the evidence, an appellate court reviews the entire record and “‘weighs the
evidence and all reasonable inferences, considers the credibility of witnesses and
determines 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. Thompkins, 78 Ohio St.3d 380,
387, 678 N.E.2d 541 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175, 485
N.E.2d 717 (1st Dist.1983). Reversing a conviction based upon the weight of the
evidence should occur “‘only in the exceptional case in which the evidence weighs
heavily against the conviction.’” Id., quoting Martin at 175.
Appellant challenges his convictions on the two counts of trafficking
under R.C. 2925.03(A)(2) and three counts of drug possession under
R.C. 2925.11(A).
First, appellant argues that the evidence in this case was unreliable
because he claims the state failed to show the proper chain of custody was followed
or to show that the equipment and instruments used to test the drugs were properly
calibrated. Appellant argues that the record fails to show how the alleged drugs got
from the crime scene to the forensic laboratory to be tested and that the individual
who delivered the evidence to the lab did not have his name written on the evidence.
He also maintains that the testimony of Edgar Angus did not establish with
reasonable certainty that the instruments used to test the drugs were properly
calibrated.
“As a general matter, ‘the state [is] not required to prove a perfect,
unbroken chain of custody.’” State v. Gross, 97 Ohio St.3d 121, 2002-Ohio-5524,
776 N.E.2d 1061, ¶ 57, quoting State v. Keene, 81 Ohio St.3d 646, 662, 693 N.E.2d
246 (1998). Any break in the chain of custody goes to the weight, rather than the
admissibility, of evidence. State v. Franklin, 97 Ohio St.3d 1, 2002-Ohio-5304, 776
N.E.2d 26, ¶ 43, citing State v. Richey, 64 Ohio St.3d 353, 360, 595 N.E.2d 915(1992). “‘The state need only establish that it is reasonably certain that substitution,
alteration or tampering did not occur.’” State v. Sims, 8th Dist. Cuyahoga No.
89261, 2007-Ohio-6821, ¶ 14, quoting State v. Blevins, 36 Ohio App.3d 147, 150, 521
N.E.2d 1105 (10th Dist.1987).
Our review of the transcript reflects that Detective Sheets testified to
his recovery of the drugs and to his name being on the evidence bags. Although he
did not know who delivered the evidence to the forensic laboratory, he testified that
the evidence “was sealed, marked, tagged and entered” and that the process for
preserving the integrity of the evidence was followed. He also recognized the
exhibits shown at trial were the same drugs that were in fact recovered. Edgar
Andrus, the forensic scientist, testified to the forensic laboratory’s chain-of-custody
procedure. He testified that the police have potential controlled substances
packaged when brought to the lab, and he testified that in this case, all the bags had
the last name and badge number of Detective Sheets on them. Mr. Andrus further
indicated that there are identifiers assigned to the evidence by the lab, and he
testified to sealing the bags after testing to maintain the integrity of the evidence.
Additionally, Mr. Andrus testified that the lab instruments are checked with a test
mix daily to make sure they are detecting substances in the expected manner and an
evaluation is run to ensure the instruments are within specifications. Mr. Andrus
also testified to his qualifications and to the testing he performed. This testimony
effectively established a proper chain of custody and the reliability of the testing
process and results.
Next, appellant argues the evidence failed to show any drug
trafficking beyond a reasonable doubt. Appellant was convicted on Counts 1 and 3
of trafficking under R.C. 2925.03(A)(2). Appellant argues the evidence at trial
suggested he merely possessed the alleged drugs, not that he trafficked them. He
further argues that he was not complicit in any of Belton’s offenses. We are not
persuaded by his arguments.
In this case, the detectives testified, based upon their observation and
experience, to the circumstances being indicative of drug trafficking. The detectives
were investigating the area for drug activity, appellant and Belton were in a vehicle
backed into a driveway, several suspected hand-to-hand transactions were observed
with various individuals, a bag with multiple smaller bags of drugs was found in
appellant’s waistband, vials of drugs with the names ripped off the label and a 100-
gram weight were found, a large amount of money was found on Belton, and a scale
and cell phones were found in the vehicle. As this court has previously stated, “It
has long been established that otherwise innocuous objects such as bags, money, or
cell phones can be used as criminal tools in drug trafficking and these items may
constitute circumstantial evidence for drug trafficking.” State v. Hawthorne, 8th
Dist. Cuyahoga No. 102689, 2016-Ohio-203, ¶ 21, citing State v. Bowling, 8th Dist.
Cuyahoga No. 93052, 2010-Ohio-3595, ¶ 60. Furthermore, in that the detectives
found the majority of the money on Belton, while they found the majority of the
drugs on Cobb, Detective Pollack testified it is common to find a separation of money
and drugs when the people are working in tandem, which is sort of a risk-mitigation
tactic in the event of police interdiction. The circumstantial evidence in this case
established appellant not only possessed the drugs, but he trafficked them and was
complicit with Belton.
After reviewing the entire record, weighing the evidence and all
reasonable inferences, and considering the credibility of the witnesses, we do not
find the trial court clearly lost its way and created such a manifest miscarriage of
justice that the adjudication must be reversed. This is not the exceptional case in
which the evidence weighs heavily against the conviction. The first assignment of
error is overruled.
Under his second assignment of error, appellant claims his
convictions were not supported by sufficient evidence. When reviewing a sufficiency
challenge, “the inquiry is, after viewing the evidence in the light most favorable to
the prosecution, whether any reasonable trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio
St.3d 259, 273, 574 N.E.2d 492 (1991), citing Jackson v. Virginia, 443 U.S. 307, 319,
99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
R.C. 2925.03(A)(2), trafficking in drugs, provides:
No person shall knowingly * * * [p]repare for shipment, ship, transport,
deliver, prepare for distribution, or distribute 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.
R.C. 2925.11(A), possession of drugs, provides:
No person shall knowingly obtain, possess, or use a controlled
substance or a controlled substance analog.
In challenging his convictions for drug possession on Counts 2, 4, and
5, appellant again challenges the reliability of the evidence to establish the drugs
were illegal drugs and to establish the weight and amount of the drugs. Appellant
also challenges his convictions on Counts 1 and 3 for trafficking under
R.C. 2925.03(A)(2), again claiming that the evidence simply showed he possessed
the alleged drugs and that the state failed to establish he was complicit with Belton.
We have thoroughly reviewed the record in this case. The state
presented testimony from the detectives to establish appellant’s involvement in the
commission of the crimes. Detective Sheets testified regarding the drugs he found
on appellant’s person, and the forensic scientist testified to the positive lab results
and the weight of the drugs. The testimony sufficiently established that the evidence
was reliable. Additionally, the circumstantial evidence presented was sufficient to
show appellant and Belton were engaging in drug trafficking when they were
apprehended. Upon our review, we find the state presented sufficient evidence to
show appellant not only committed the drug-possession offenses, but also that he
committed the trafficking offenses and was complicit with Belton. After viewing the
evidence in the light most favorable to the prosecution, we find any reasonable trier
of fact could have found the essential elements of the crimes proven beyond a
reasonable doubt. The second assignment of error is overruled.
Under his third assignment of error, appellant claims the trial court
erred in providing a complicity instruction to the jury. He asserts the evidence at
trial was insufficient to warrant a jury instruction on complicity.
“Requested jury instructions should ordinarily be given if they are
correct statements of law, if they are applicable to the facts in the case, and if
reasonable minds might reach the conclusion sought by the requested instruction.”
State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 240, citing
Murphy v. Carrollton Mfg. Co., 61 Ohio St.3d 585, 591, 575 N.E.2d 828 (1991). “To
support a conviction for complicity by aiding and abetting pursuant to
R.C. 2923.03(A)(2), the evidence must show that the defendant supported, assisted,
encouraged, cooperated with, advised, or incited the principal in the commission of
the crime, and that the defendant shared the criminal intent of the principal.” State
v. Johnson, 93 Ohio St.3d 240, 240, 754 N.E.2d 796 (2001), syllabus. “Such intent
may be inferred from the circumstances surrounding the crime.” Id.Based on our review, we find the evidence was sufficient to show that
appellant was complicit in trafficking in the controlled substances. Because any
reasonable trier of fact could have found beyond a reasonable doubt that appellant
knowingly aided and abetted Belton in committing the trafficking offenses, the jury
instruction on complicity was warranted. Accordingly, we find the trial court did
not err in giving the jury instruction. The third assignment of error is overruled.
Under his fourth assignment of error, appellant claims the trial court
committed plain error by failing to merge appellant’s convictions for drug trafficking
and drug possession as allied offenses of similar import. Specifically, he claims the
trial court committed plain error by failing to merge Counts 1 and 2, which involve
trafficking and possession of methamphetamine, and by failing to merge Counts 3
and 4, which involve trafficking and possession of lisdexamphetamine. He asserts
with respect to each particular type of drug that because he was found to have
trafficked and possessed the same drugs through the same act, they were allied
offenses of similar import and should have merged pursuant to R.C. 2941.25.
“Ohio courts have long recognized that, in most instances, trafficking
and possession charges based on the same contraband are allied offenses requiring
merger.” State v. Mitchell, 1st Dist. Hamilton Nos. C-220155 and C-220156, 2022-
Ohio-4355, ¶ 24, citing State v. Murph, 1st Dist. Hamilton No. C-150263,
2015-Ohio-5076, ¶ 7; State v. Fenderson, 6th Dist. Erie No. E-21-018,
2022-Ohio-1973, ¶ 86; see also State v. Martin, 1st Dist. Hamilton No. C-230236,
2024-Ohio-10, ¶ 32-34 (finding a trial court should have merged trafficking in
marijuana and possession of marijuana counts). As stated in Martin, “‘By its nature,
a drug-trafficking offense under R.C. 2925.03(A)(2), which requires that the
offender knowingly “[p]repare for shipment, ship, transport, deliver, prepare for
distribution, or distribute a controlled substance,” necessarily includes some degree
of possession.’” Martin at ¶ 34, quoting Murph at ¶ 7.
Upon the record before us, we agree that in this case the trial court
committed plain error in failing to merge the methamphetamine-related offenses
and by failing to merge the lisdexamphetamine-related offenses. The fourth
assignment of error is sustained.
In conclusion, we vacate the sentences imposed on Counts 1, 2, 3, and
4, and we remand the matter with instructions for the trial court to merge Counts 1
and 2, which are the offenses for trafficking in and possession of methamphetamine,
and to separately merge Counts 3 and 4, which are the offenses for trafficking in and
possession of lisdexamphetamine. The trial court shall permit the state to elect
which of the respective allied offenses to pursue for sentencing, and the trial court
shall resentence appellant on the counts elected by the state. The judgment is
affirmed in all other respects.
Judgment affirmed in part; sentence vacated in part. Case remanded
for merger and resentencing.
It is ordered that appellant and appellee share 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. Any bail pending appeal
is terminated.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
______________________
SEAN C. GALLAGHER, JUDGE
MARY EILEEN KILBANE, P.J., and
MICHAEL JOHN RYAN, J., CONCUR