State v. Parker , 2013 Ohio 3135 ( 2013 )

[Cite as State v. Parker, 2013-Ohio-3135.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99047
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MAURICE D. PARKER
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART,
REVERSED IN PART, AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-560645
BEFORE: E.T. Gallagher, J., Rocco, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: July 18, 2013
ATTORNEY FOR APPELLANT
Russell S. Bensing
1350 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Melissa Riley
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:
{¶1} Defendant-appellant Maurice Parker (“Parker”) appeals the trial court’s
judgment convicting him of two counts of drug trafficking, and one count of drug
possession. We find some merit to the appeal and affirm in part. We reverse in part for
the limited purpose of resentencing allied offenses.
{¶2} Parker was charged with one count of drug possession in violation of R.C.
2925.11(A), one count of trafficking in violation of R.C. 2925.03(A)(1) (sell or offer to
sell) and one count of trafficking in violation of R.C. 2925.03(A)(2) (prepare for
shipment). He was charged after allegedly selling drugs to a confidential reliable
informant (“CRI”) during a controlled buy-bust.
{¶3} Plaintiff-appellee, state of Ohio (“the state”) called several witnesses at trial.
Detective Michael Duller (“Det. Duller”), who participated in the buy-bust, testified that
he parked his unmarked car approximately 70 feet from the car occupied by Detective
Maria Matos (“Det. Matos”) and the CRI in the parking lot at Steelyard Commons. Det.
Duller observed Parker arriving on the scene in a gray car. Parker and his codefendant
Malcolm Burgess (“Burgess”), parked next to Det. Matos’s vehicle. Parker exited the
gray car and got into Det. Matos’s vehicle where the CRI gave him previously recorded
“buy” money in exchange for heroin. When the exchange was complete, Parker returned
to the gray car and drove off. Det. Duller, who heard the conversation between Parker,
the CRI, and Det. Matos through a body wire transmitter, alerted the takedown officers
that the transaction was complete. Within one minute of the transaction, several police
officers moved in and arrested Parker.
{¶4} Det. Robert Klomfas (“Det. Klomfas”), who was part of the takedown team
who arrested Parker, testified that he removed Parker from the front passenger seat and
found one cell phone and $15 in Parker’s left hoodie pocket. Another detective found two
cell phones in Parker’s pants. The buy money and the cell phone used to arrange the sale
were located on the center console between Parker and the driver, Burgess. Det.
Klomfas, Det. Duller, and Det. Matos each testified that Parker was wearing a blue
hoodie at the time of both the transaction and his arrest. A forensic drug chemist with
the Cuyahoga County Regional Forensic Science Laboratory later determined that the
brown rock the CRI purchased from Parker contained 0.46 grams of heroin.
{¶5} Parker asserted that this was a case of misidentification. Burgess, who
testified for the defense, stated that he sold the drugs to the CRI, not Parker. Burgess
explained that he was taking Parker to Home Depot when he stopped to sell the heroin.
Burgess claimed the police erroneously identified Parker as the drug dealer. However,
he admitted that Parker was wearing a blue hoodie at the time of his arrest.
{¶6} At the conclusion of the state’s case, the trial court found that the state failed
to present sufficient evidence to sustain a conviction for possession of criminal tools, and
the court dismissed that count of the indictment. At the end of trial, the jury found Parker
guilty of one count of drug trafficking in violation of R.C. 2925.03(A)(1), one count of
drug trafficking in violation of R.C. 2925.03(A)(2), and one count of drug possession in
violation of R.C. 2925.11(A). Parker now appeals and raises three assignments of error.
Evidence of Cell Phones
{¶7} In the first assignment of error, Parker argues the trial court erred in allowing
Det. Klomfas to testify that the seizure of three cell phones on Parker’s person is
indicative of drug dealing. He contends this evidence was unfairly prejudicial and
inadmissible pursuant to Evid.R. 404.
{¶8} We find the error, if any, was invited error since the defense opened the door
and brought in the testimony now being challenged. Under the invited error doctrine, a
party is not entitled to take advantage of an error that he himself invited or induced.
State v. Campbell, 90 Ohio St.3d 320, 324, 2000-Ohio-183, 738 N.E.2d 1178.
{¶9} In this case, when the state asked Det. Klomfas what is the significance of
someone having three cell phones, defense counsel objected, and the court sustained the
objection. However, on cross-examination, defense counsel asked Det. Klomfas about
the three cell phones police found in Parker’s possession. Among several questions on
the subject, defense counsel asked: “Do you have any knowledge whether those cell
phones were used for any kind of drug transaction?” In response to this question, the
prosecutor asked on redirect: “[W]hy would you seize three cell phones off of one
person?” Defense counsel again objected, but the court overruled the objection, stating:
“It follows your question.” Answering the prosecutor’s question, Det. Klomfas testified:
“It is indicative of criminal activities, such as drug sales, from my experience.”
{¶10} Parker argues his trial lawyer did not invite the error because the questions
were intended to show that the cell phones were not used in any drug transaction and
therefore that they were not criminal tools. However, defense counsel’s questions about
the cell phones were unnecessary because it is the state’s burden to prove beyond a
reasonable doubt that the cell phones were, in fact, criminal tools. And the court
sustained defense counsel’s objection to questions regarding the use of cell phones in
drug activity during the state’s case-in-chief. Therefore, Parker invited the error of
which he now complains.
{¶11} Accordingly, we overrule the first assignment of error.
Ineffective Assistance of Counsel
{¶12} In the second assignment of error, Parker argues he was denied his
constitutional right to the effective assistance of counsel. He contends his trial counsel
was ineffective for failing to move for disclosure of the CRI.
{¶13} To prevail on a claim of ineffective assistance of counsel, a defendant must
show that counsel’s performance fell below an objective standard of reasonableness and
that prejudice arose from counsel’s performance. Strickland v. Washington, 466 U.S. 668,
687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538
N.E.2d 373 (1989), paragraph two of the syllabus. A defendant must show that counsel
acted unreasonably and that but for counsel’s errors, there exists a reasonable probability
that the result of the proceeding would have been different. Strickland, 466 U.S. at 696;
Bradley at paragraph three of the syllabus. In making this determination, the reviewing
court must presume that counsel’s conduct was competent. Id.{¶14} If Parker’s trial counsel had filed a motion to disclose the identity of the
confidential informant, it would have been denied. The determination of whether to
disclose the identity of a confidential informant involves the balancing of competing
interests. State v. Williams, 4 Ohio St.3d 74, 75, 446 N.E.2d 779 (1983), citing State v.
Phillips, 27 Ohio St.2d 294, 272 N.E.2d 347 (1971). A trial court must balance a
defendant’s constitutional right to confront accusers against him with the public’s interest
in protecting the flow of information to the government. Id. The defendant is entitled to
disclosure of the identity of a confidential informant only when “the testimony of the
informant is vital to establishing an element of the crime or would be helpful or beneficial
to the accused in preparing or making a defense to criminal charges.” Williams at
syllabus. The defendant bears the burden of establishing the need for disclosure. State v.
Wallace, 8th Dist. No. 85541, 2005-Ohio-4397, ¶ 27.
{¶15} Parker argues the identity of the CRI would have helped his defense because
he could have called the CRI to testify that Parker was not the person who sold him the
heroin. However, several detectives who participated in the buy-bust testified that the
person who entered Det. Matos’s car to complete the sale was wearing a blue hoodie. At
the time of his arrest within a minute of the sale, Parker was wearing a blue hoodie and
Burgess was wearing a gray hoodie. Moreover, from the driver’s seat of her vehicle,
Det. Matos observed Parker hand the CRI heroin in exchange for money. Therefore, the
state did not require testimony of the CRI to prove that Parker was the seller of the heroin.
And it is doubtful that the CRI would have offered different identification testimony.
Therefore, because Parker could not meet his burden of establishing the need for
disclosure of the CRI’s identity, his trial counsel was not ineffective for failing to move
for disclosure.
{¶16} Accordingly, the second assignment of error is overruled.
Merger of Allied Offenses
{¶17} In the third assignment of error, Parker argues that all three of his
convictions should have merged for sentencing. As previously stated, Parker was
convicted of two counts of drug trafficking and one count of drug possession. At the
time of sentencing, the state agreed to merge one count of trafficking (R.C.
2925.03(A)(2), prepare for shipment) with drug possession, and the State elected to
sentence on the trafficking count. The state now concedes that the second count of
trafficking (in violation of R.C. 2925.03(A)(1), offer to sell) should have also merged for
sentencing in accordance with this court’s holding in State v. Goodson, 8th Dist. No.
94954, 2011-Ohio-5820, ¶ 13, because all three convictions resulted from the same
transaction, involved the same amount of contraband and were committed with a single
state of mind.
{¶18} Therefore, the third assignment of error is sustained.
{¶19} Judgment is affirmed in part and reversed in part. Parker’s convictions are
affirmed. However, we remand the case to the trial court for the limited purpose of
merging all three drug-related offenses for sentencing and to allow the state to elect
which offense it will pursue for purposes of sentencing and conviction.
It is ordered that appellee and appellant share the 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.
EILEEN T. GALLAGHER, JUDGE
KENNETH A. ROCCO, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR