State v. Dixon , 2016 Ohio 1491 ( 2016 )

[Cite as State v. Dixon, 2016-Ohio-1491.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
STATE OF OHIO, :
: Case No. 15CA3680
Plaintiff-Appellee, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
LARRY DIXON, :
:
Defendant-Appellant. : Released: 04/06/16
_____________________________________________________________
APPEARANCES:
James S. Sweeney, James Sweeney Law, LLC, Columbus, Ohio, for
Appellant.
Mark E. Kuhn, Scioto County Prosecuting Attorney, and Shane A. Tieman,
Scioto County Assistant Prosecuting Attorney, Portsmouth, Ohio, for
Appellee.
_____________________________________________________________
McFarland, J.
{¶1} Larry Dixon appeals from his convictions and sentences imposed
by the Scioto County Court of Common Pleas after a jury found him guilty
of possession and trafficking in both cocaine and heroin. On appeal,
Appellant contends that 1) the trial court erred when it failed to grant his
motion for acquittal as the guilty verdicts at the trial court were not
supported by sufficient evidence; 2) the trial court erred when it entered a
judgment against him when the judgment was not supported by the manifest
Scioto App. No. 15CA3680 2
weight of the evidence; 3) the prosecuting attorney’s remarks during closing
argument constituted prosecutorial misconduct and plain error which
deprived him of a fair trial in violation of the United States Constitution; 4)
the trial court erred in failing to properly advise him of the consequences of
violating postrelease control, rendering his conviction partially void; and 5)
he received ineffective assistance of counsel to a degree that he did not
receive a fair trial.
{¶2} Because we have concluded that Appellant’s convictions are
supported by sufficient evidence and are not against the manifest weight of
the evidence, Appellant’s first and second assignments of error are
overruled. Further, as we did not find that the prosecutor’s comments during
closing argument rose to the level of plain error, Appellant’s third
assignment of error is overruled. With respect to Appellant’s fourth
assignment of error, we conclude that the trial court erred in failing to
properly impose postrelease control and as such, the postrelease control
portion of Appellant’s sentence is vacated and the matter is remanded to the
trial court for re-sentencing. Finally, because we cannot conclude that trial
counsel’s representation was deficient, Appellant’s fifth and final
assignment of error is overruled. Accordingly, Appellants convictions are
Scioto App. No. 15CA3680 3
affirmed; however, the postrelease control portion of his sentence is vacated
and the matter is remanded for the proper imposition of postrelease control.
FACTS
{¶3} In the early morning hours on September 16, 2014, Trooper Nick
Lewis, with the Ohio State Highway Patrol, stopped a vehicle driven by
Appellant, Larry Dixon. Lewis was assigned to the drug interdiction team
and had been informed that there was a large supplier of crack cocaine in
Chillicothe. Lewis initially ran the tag as the vehicle passed by on U.S.
Route 23 and determined that the vehicle was owned by an older female in
Chillicothe. After Lewis began following the vehicle, he observed a traffic
violation and initiated a traffic stop.
{¶4} When he approached the stopped vehicle, Appellant, who was
driving the vehicle, informed Lewis he did not have a driver’s license or
identification. Lewis patted down Appellant and placed him in the back of
the cruiser. When Lewis noted that he smelled marijuana, Appellant stated
marijuana had been smoked in the vehicle earlier, but not by him. Lewis
then asked the passenger, Lawrence Barnes, to exit the vehicle. While
patting Barnes down, Barnes began to resist and a struggle ensued in which
both Lewis and Barnes went out of view of the trooper cam. Lewis later
testified during trial that during the pat down he felt an object in Barnes’
Scioto App. No. 15CA3680 4
pants, asked Barnes to remove the object and at that time Barnes began to
pull away from him. After reinforcements arrived, Barnes was again
searched but the object was no longer on his person. He was cuffed and
placed in the cruiser while the troopers searched the area.
{¶5} Trooper Basdin, who had arrived to assist Lewis, found a white
object lying in the grass in the area where Barnes and Lewis had struggled.
The contents were later identified as 22.464 grams of cocaine and 3.993
grams of heroin, the identity and weight of which the parties stipulated at
trial. The heroin was packaged into thirty-one small baggies, which Lewis
testified typically indicates they have been prepared for sale. Lewis also
testified that the drugs were concealed in the rear of Barnes’ pants. Both
Appellant and Barnes were Mirandized, placed under arrest and transported
to the Highway Patrol Post.
{¶6} Trooper Lewis testified that while at the post, he reviewed the
recording from the trooper cam. Not only did the camera record what
occurred outside the vehicle, but a recording was also made of Appellant and
Barnes while they were in the backseat of the cruiser. After hearing
comments by both Appellant and Barnes on the video, Lewis asked
Appellant if he would like to provide a written statement, however,
Appellant declined. Lewis testified that he asked Appellant if he smoked
Scioto App. No. 15CA3680 5
crack cocaine, to which Appellant replied that he did. Appellant further
stated that although they had not discussed details, Barnes was to pay
Appellant in either cash or crack cocaine for transporting him.
{¶7} Subsequently, on November 4, 2014, Appellant and Lawrence
Barnes were both indicted on four felony counts, including count one,
trafficking in cocaine, a felony of the second degree in violation of R.C.
2925.03(A)(2) and 2925.03(C)(4)(e); count two, possession of cocaine, a
felony of the second degree in violation of R.C. 2925.11(A) and
2925.11(C)(4)(d); count three, trafficking in heroin, a felony of the third
degree in violation of R.C. 2925.03(A)(2) and 2925.03(C)(6)(d); and count
four, possession of cocaine, a felony of the third degree in violation of R.C.
2925.11(A) and 2925.11(C)(6)(c).1 A fifth count was contained in the
indictment, which charged obstructing official business, a fifth degree felony
in violation of R.C. 2921.31(A) and 2921.31(B), however, this count only
applied to Barnes.
{¶8} A one-day jury trial was held on December 15, 2014. The State
presented the testimony of Troopers Lewis and Basdin, and played the video
of the trooper cam for the jury. Appellant, through counsel, made a motion
for dismissal pursuant to Crim.R. 29(A), which was denied by the trial court.
1
Counts three and four were later amended to fourth degree felonies.
Scioto App. No. 15CA3680 6
The defense then rested without presenting any evidence. The jury
subsequently found Appellant guilty of all four counts of the indictment. As
such, the trial court entered convictions on each count and sentenced
Appellant to a total mandatory prison term of four years.2 The trial court
further imposed a mandatory three-year term of postrelease control. It is
from this judgment entry that Appellant brings his current appeal, setting
forth five assignments of error for our review.3
ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT THE
DEFENDANT’S [SIC] MOTION FOR ACQUITTAL AS THE
GUILTY VERDICTS AT THE TRIAL COURT WERE NOT
SUPPORTED BY SUFFICIENT EVIDENCE.
II. THE TRIAL COURT ERRED WHEN IT ENTERED A JUDGMENT
AGAINST THE APPELLANT WHEN THE JUDGMENT WAS
NOT SUPPORTED BY THE MANIFEST WEIGHT OF THE
EVIDENCE.
III. THE PROSECUTING ATTORNEY’S REMARKS DURING
CLOSING ARGUMENTS CONSTITUTED PROSECUTORIAL
MISCONDUCT AND PLAIN ERROR WHICH DEPRIVED
APPELLANT OF A FAIR TRIAL IN VIOLATION OF THE
UNITED STATES CONSTITUTION.
IV. THE TRIAL COURT ERRED IN FAILING TO PROPERLY
ADVISE APPELLANT OF THE CONSEQUENCES OF
2
In sentencing Appellant, the trial court imposed a four-year mandatory term as to count one, merged count
two with count one, imposed a stated prison term of eighteen months on count three, and merged count four
with count three. The trial court then ordered the sentences to be served consecutively for a total term of
four years.
3
Appellant appealed from the trial court’s nunc pro tunc judgment entry entered on January 9, 2015.
Scioto App. No. 15CA3680 7
VIOLATING POSTRELEASE CONTROL RENDERING
APPELLANT’S CONVICTION PARTIALLY VOID.
V. APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF
COUNSEL TO A DEGREE THAT APPELLANT DID NOT
RECEIVE A FAIR TRIAL.”
ASSIGNMENT OF ERROR I
{¶9} In his first assignment of error, Appellant contends that the trial
court erred when it failed to grant his motion for acquittal, as the guilty
verdicts were not supported by sufficient evidence. “A motion for acquittal
under Crim.R. 29(A) is governed by the same standard as the one for
determining whether a verdict is supported by sufficient evidence.” State v.
Tenace, 109 Ohio St. 3d 255, 2006-Ohio-2417, 847 N.E.2d 386 (2006), ¶ 37.
When reviewing the sufficiency of the evidence, our inquiry focuses
primarily upon the adequacy of the evidence; that is, whether the evidence,
if believed, reasonably could support a finding of guilt beyond a reasonable
doubt. State v. Thompkins, 78 Ohio St. 3d 380, 386, 678 N.E.2d 541 (1997)
(stating that “sufficiency is a test of adequacy”); State v. Jenks, 61 Ohio
St.3d 259, 274, 574 N.E.2d 492 (1991). The standard of review is whether,
after viewing the probative evidence and inferences reasonably drawn
therefrom in the light most favorable to the prosecution, any rational trier of
fact could have found all the essential elements of the offense beyond a
Scioto App. No. 15CA3680 8
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,
(1979); Jenks at ¶ 273.
{¶10} Furthermore, a reviewing court is not to assess “whether the
state's evidence is to be believed, but whether, if believed, the evidence
against a defendant would support a conviction.” Thompkins at ¶ 390. Thus,
when reviewing a sufficiency-of-the-evidence claim, an appellate court must
construe the evidence in a light most favorable to the prosecution. State v.
Hill, 75 Ohio St. 3d 195, 205, 661 N.E.2d 1068 (1996); State v. Grant, 67
Ohio St. 3d 465, 477, 620 N.E.2d 50 (1993). A reviewing court will not
overturn a conviction on a sufficiency-of-the-evidence claim unless
reasonable minds could not reach the conclusion that the trier of fact did.
State v. Tibbetts, 92 Ohio St. 3d 146, 162, 749 N.E.2d 226 (2001); State v.
Treesh, 90 Ohio St. 3d 460, 484, 739 N.E.2d 749 (2001).
{¶11} On appeal, Appellant challenges the sufficiency of the evidence
presented by the State in support of the offenses for which he was charged
and convicted, possession and trafficking of cocaine and heroin. R.C.
2925.03(A)(2) governs trafficking offenses and provides as follows:
“(A) No person shall knowingly do any of the following:
***
Scioto App. No. 15CA3680 9
(2) Prepare for shipment, ship, transport, deliver, prepare for
distribution, or distribute a controlled substance or a controlled
substance analog, when the offender knows or has reasonable
cause to believe that the controlled substance or a controlled
substance analog is intended for sale or resale by the offender
or another person.”
R.C. 2925.11(A) governs drug possession offenses and provides in section
(A) that “[n]o person shall knowingly obtain, possess, or use a controlled
substance or a controlled substance analog.”
{¶12} Appellant contends that the State failed to prove beyond a
reasonable doubt that he knowingly shipped the illegal drugs in question and
that he had either actual or constructive possession of them. “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). “[P]ossession” is defined
as “having control over a thing or substance, but may not be inferred solely
from mere access to the thing or substance through ownership or occupation
of the premises upon which the thing or substance is found.” R.C.
2925.01(K). “Possession may be actual or constructive.” State v. Moon, 4th
Scioto App. No. 15CA3680 10
Dist. Adams No. 08CA875, 2009-Ohio-4830, ¶ 19; citing State v. Butler, 42
Ohio St. 3d 174, 175, 538 N.E.2d 98 (1989) (“[t]o constitute possession, it is
sufficient that the defendant has constructive possession”).
{¶13} “ ‘Actual possession exists when the circumstances indicate
that an individual has or had an item within his immediate physical
possession.’ ” State v. Kingsland, 177 Ohio App. 3d 655, 2008-Ohio-4148,
895 N.E.2d 633, ¶ 13 (4th Dist.); quoting State v. Fry, 4th Dist. Jackson No.
03CA26, 2004-Ohio-5747, ¶ 39. “Constructive possession exists when an
individual knowingly exercises dominion and control over an object, even
though that object may not be within his immediate physical possession.”
State v. Hankerson, 70 Ohio St. 2d 87, 434 N.E.2d 1362 (1982), syllabus;
State v. Brown, 4th Dist. Athens No. 09CA3, 2009-Ohio-5390, ¶ 19. For
constructive possession to exist, the state must show that the defendant was
conscious of the object's presence. Hankerson at ¶ 91; Kingsland at ¶ 13.
Both dominion and control, and whether a person was conscious of the
object's presence may be established through circumstantial evidence.
Brown at ¶ 19. “Moreover, two or more persons may have joint constructive
possession of the same object.” Id.
{¶14} “Although a defendant's mere proximity is in itself insufficient
to establish constructive possession, proximity to the object may constitute
Scioto App. No. 15CA3680 11
some evidence of constructive possession. * * * Thus, presence in the
vicinity of contraband, coupled with another factor or factors probative of
dominion or control over the contraband, may establish constructive
possession.” Kingsland at ¶ 13; State v. Criswell, 4th Dist. Scioto No.
13CA3588, 2014-Ohio-3941, ¶ 11.
{¶15} In support of his contention that the State failed to demonstrate
Appellant knowingly shipped drugs, Appellant notes that he repeatedly
denied to Trooper Lewis that there was anything illegal in the vehicle. He
further argues that the statement he made indicating “they found it[,]” could
be attributed to the fact that he had likely seen Barnes toss the drugs during
the struggle with Lewis and was simply commenting that the troopers had
found the drugs. Based upon our review of the record, we reject Appellant’s
arguments regarding whether the State demonstrated Appellant had
knowledge of the drugs.
{¶16} A review of the record indicates that upon being stopped,
Appellant was cooperative with Trooper Lewis and denied that there was
anything illegal in the car. He admitted marijuana had been smoked in the
vehicle earlier, but not by him. Once Barnes was placed in the cruiser with
him, Appellant and Barnes conversed and Appellant made multiple
statements which seemingly denied any knowledge of illegal drugs in the
Scioto App. No. 15CA3680 12
vehicle. However, once the troopers found the bag of drugs in the grassy
area on the side of the road, Appellant stated “they found it.” At that point,
the conversation took a turn. Barnes then began to question Appellant as to
whether he had set him up, and whether Appellant was a confidential
informant. These questions, though lodged by Barnes, infer Appellant knew
Barnes was carrying drugs.
{¶17} Further, a review of the trial transcript indicates Trooper Lewis
testified that when Barnes pulled away from him a second time, the video
shows Barnes had his hand down the back of his pants. The inference from
this testimony is that this is likely the point in which Barnes tossed the bag
of drugs.4 A review of the video, however, indicates that Barnes pulled
away from Lewis right in front of the cruiser. It appears from our review of
the trooper cam that Appellant was staring off to the side when this initial
struggle between Barnes and Lewis began, and then at some point Appellant
noticed that something was happening off to the side of the vehicle. In fact,
a review of the trooper cam video reveals that when Barnes was placed into
the cruiser, Appellant asked him what happened and stated he didn’t see
what happened. Additionally, as noted by the State, at one point on the
video Appellant can be heard stating “[w]e’re fucked.” Such a statement
4
This Court, after reviewing the video, was unable to determine the point in which Barnes tossed the drugs.
Scioto App. No. 15CA3680 13
implies Appellant and Barnes were acting together, or at a minimum that
Appellant was complicit in Barnes’ conduct. These facts contradict
Appellant’s argument that his statement “they found it” was simply in
reference to him having seen Barnes toss the bag of drugs into the grass.
{¶18} Appellant also argues that the fact that he was to allegedly be
paid in crack cocaine or cash does not mean that he knew Barnes had crack
cocaine or heroin on his person at the time they were stopped. A review of
the record indicates that after being Mirandized, and while at the State
Highway Patrol Post, Appellant admitted to Trooper Lewis that he smoked
crack cocaine and that he was to be paid in either cash or crack cocaine to
drive Barnes to Kentucky. The significance of this statement is better
understood when considered in light of testimony by Trooper Lewis that
based upon his experience working drug interdiction, drugs travel south and
money travels north. While it is not out of the realm of possibility that
Appellant was completely clueless as to Barnes’ possession of drugs and
thought Barnes would obtain drugs to pay him once they arrived at their
destination, a more realistic scenario, construing the facts in a light most
favorable to the prosecution, is that Appellant knew he was transporting
Barnes, who was carrying drugs, and that in exchange for providing
transportation, Appellant would either be paid in cash that would be
Scioto App. No. 15CA3680 14
obtained after said drugs were sold, or would be paid a portion of the drugs
that were being transported. Coupled with Appellant’s comments that “they
found it” and “[w]e’re fucked[,]” as well as Barnes’ accusations that
Appellant had set him up, we cannot conclude that the State failed to prove
Barnes was carrying drugs and was transporting them for sale, and that
Appellant had knowledge of these facts, and was complicit in this conduct.
{¶19} Appellant further contends that because the drugs were found
between Barnes’ buttocks, Appellant did not have actual or constructive
possession of them. Appellant argues that finding him in constructive
possession of the drugs at issue would require a belief that Appellant had
dominion and control over something that was in a very private part of
another’s body. However, this Court has found constructive possession in
such circumstances. For example, in State v. Crocker, 2015-Ohio-2528, 38
N.E.3d 369, this Court found that the driver of a vehicle had knowledge of
and was in constructive possession of heroin and cocaine that was concealed
in the vagina of the passenger of the vehicle. In determining Crocker had
knowledge of the drugs, we took into consideration text messages appearing
on Crocker’s phone and statements made by Crocker on the jail telephone
indicating he had knowledge of the drugs. Id. at ¶ 27. After concluding
Crocker had knowledge of the drugs, and noting the fact that Crocker drove
Scioto App. No. 15CA3680 15
the rental car that was transporting the drugs, we further concluded that
Crocker was in a position to control the contraband. Id. Ultimately, we
determined in Crocker that the trial court reasonably concluded “that
Crocker knew about the heroin and cocaine and that he exercised dominion
and control over the drugs by knowingly transporting them in the rental car.”
Id. at ¶ 28.
{¶20} Here, we have determined that the facts, if believed and
considered in a light most favorable to the prosecution, demonstrate that
Appellant had knowledge of the drugs at issue. Here, like in Crocker,
Appellant was the driver of the vehicle transporting the drugs. The vehicle
at issue was registered to Appellant’s mother, thus this is not a situation
where Appellant was simply driving Barnes’ vehicle. Appellant apparently
obtained a vehicle from his mother to transport Barnes, who was carrying
drugs, to Kentucky, in exchange for payment in the form of either cash or
crack cocaine. Based upon these facts, and relying on our prior reasoning in
Crocker, we conclude that the State demonstrated that Appellant knowingly
transported drugs and that by driving the vehicle in which they were being
transported, he exercised dominion and control over the drugs. As such,
although Appellant was not in actual possession of the drugs, he
constructively possessed them. In light of the foregoing, we cannot
Scioto App. No. 15CA3680 16
conclude that the trial court erred in denying Appellant’s Crim.R. 29(A)
motion for acquittal. Accordingly, Appellant’s first assignment of error is
overruled.
ASSIGNMENT OF ERROR II
{¶21} In his second assignment of error, Appellant contends that the
trial court erred when it entered a judgment against him when the judgment
was not supported by the manifest weight of the evidence. Appellant relies
on the same argument presented in his first assignment of error, contending
that the State failed to demonstrate that he was aware of the drugs found on
Barnes’ person, and failed to demonstrate Appellant was in actual or
constructive possession of the drugs.
{¶22} When considering whether a conviction is against the manifest
weight of the evidence, our role is to determine whether the evidence
produced at trial “attains a high degree of probative force and certainty
required of a criminal conviction.” State v. Fry, supra, at ¶ 34; quoting State
v. Getsy, 84 Ohio St. 3d 180, 193, 702 N.E.2d 866 (1998). The reviewing
court sits, essentially, as a “ ‘thirteenth juror’ and [may] disagree [ ] with the
fact finder's resolution of the conflicting testimony.” Fry, supra; quoting
State v. Thompkins at 387; quoting Tibbs v. Florida, 457 U.S. 31, 42, 102
S. Ct. 2211 (1982). The reviewing court must dutifully examine the entire
Scioto App. No. 15CA3680 17
record, weighing the evidence and considering the credibility of witnesses,
but keeping in mind that credibility generally is an issue for the trier of fact
to resolve. Fry, supra; citing State v. Thomas, 70 Ohio St. 2d 79, 80, 434
N.E.2d 1356 (1982); State v. DeHass, 10 Ohio St. 2d 230, 227 N.E.2d 212
(1967), paragraph one of the syllabus.
{¶23} The reviewing court may reverse the conviction if it appears
that the factfinder, in resolving evidentiary conflicts, “ ‘clearly lost its way
and created such a manifest miscarriage of justice that the conviction must
be reversed and a new trial ordered.’ ” Thompkins at 387; quoting State v.
Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1st Dist. 1983). On the
other hand, we will not reverse a conviction if the State presented substantial
evidence upon which the trier of fact could reasonably conclude that all
essential elements of the offense had been established beyond a reasonable
doubt. Fry, supra; citing State v. Eley, 56 Ohio St. 2d 169, 383 N.E.2d 132
(1978), syllabus.
{¶24} We have addressed in detail the evidence presented at trial in
addressing Appellant’s first assignment of error, where we determined that
Appellant’s convictions were supported by sufficient evidence, and as such,
the trial court did not err in denying Appellant’s Crim.R. 29(A) motion for
acquittal. In light of the evidence that was presented, as discussed above, we
Scioto App. No. 15CA3680 18
find there was not only sufficient evidence, but substantial evidence upon
which the trier of fact reasonably could conclude that the essential elements
of the above offenses have been established beyond a reasonable doubt.
{¶25} Although the State acknowledges that some of Appellant’s
statements were subject to interpretation, we agree with the State that they
could also be interpreted to indicate knowledge. Likewise, we conclude the
facts before us constitute substantial evidence that Appellant was in
constructive possession of the drugs by driving the vehicle in which the
drugs were being transported. Further, we are mindful that credibility
generally is an issue for the trier of fact to resolve. The jury clearly believed
the State’s version of events and afforded weight accordingly to the
statements made by Appellant. Based upon the evidence it had before it, we
cannot conclude that the jury clearly lost its way and created such a manifest
miscarriage of justice that the convictions must be reversed. Accordingly,
Appellant’s second assignment of error is overruled.
ASSIGNMENT OF ERROR III
{¶26} In his third assignment of error, Appellant contends that the
prosecuting attorney’s remarks during closing argument constituted
prosecutorial misconduct and plain error which deprived Appellant of a fair
trial in violation of the United States Constitution. Failure to object to an
Scioto App. No. 15CA3680 19
alleged error waives all but plain error. State v. Keeley, 4th Dist. Washington
No. 11CA5, 2012-Ohio-3564, ¶ 28. Notice of Crim.R. 52(B) plain error
must be taken with the utmost caution, under exceptional circumstances and
only to prevent a manifest miscarriage of justice. State v. Rohrbaugh, 126
Ohio St. 3d 421, 2010-Ohio-3286, 934 N.E.2d 920, ¶ 6; State v. Long, 53
Ohio St. 2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. To
find plain error, the outcome of trial must clearly have been otherwise. State
v. McCausland, 124 Ohio St. 3d 8, 2009-Ohio-5933, 918 N.E.2d 507, ¶ 15;
State v. Braden, 98 Ohio St. 3d 354, 2003-Ohio-1325, 785 N.E.2d 439, ¶ 50.
{¶27} “The test for prosecutorial misconduct is whether the conduct
was improper and, if so, whether the rights of the accused were materially
prejudiced.” State v. Purdin, 4th Dist. Adams No. 12CA944, 2013-Ohio-22,
¶ 31; quoting State v. Leonard, 4th Dist. Athens No. 08CA24, 2009-Ohio-
6191, ¶ 36; citing State v. Smith, 97 Ohio St. 3d 367, 2002-Ohio-6659, 780
N.E.2d 221, ¶ 45; in turn citing State v. Smith, 14 Ohio St. 3d 13, 14, 470
N.E.2d 883 (1984). “The ‘conduct of a prosecuting attorney during trial
cannot be grounds for error unless the conduct deprives the defendant of a
fair trial.’ ” Purdin at ¶ 31; quoting State v. Givens, 4th Dist. Washington
No. 07CA19, 2008-Ohio-1202, ¶ 28; quoting State v. Gest, 108 Ohio App. 3d
248, 257, 670 N.E.2d 536 (8th Dist. 1995). Accord State v. Apanovitch, 33
Scioto App. No. 15CA3680 20
Ohio St. 3d 19, 24, 514 N.E.2d 394 (1987). “Prosecutorial misconduct
constitutes reversible error only in rare instances.” Purdin, supra; quoting
State v. Edgington, 4th Dist. Ross No. 05CA2866, 2006-Ohio-3712, ¶ 18;
citing State v. Keenan, 66 Ohio St. 3d 402, 406, 613 N.E.2d 203 (1993). The
“touchstone analysis * * * is the fairness of the trial, not the culpability of
the prosecutor. * * * The Constitution does not guarantee an ‘error free,
perfect trial.’ ” Purdin at ¶ 31; quoting Leonard at ¶ 36; quoting Gest at
¶ 257.
{¶28} Appellant contends that the following statement by the
prosecution constituted prosecutorial misconduct: “Midnight, African
American male asks for a ride to Portsmouth and he will pay you in crack or
money.” Appellant argues that the statement was essentially a racially
biased argument by the prosecution that suggested that because Appellant
was giving a ride to an African-American late at night “that something
nefarious was afoot.” Appellant argues the comment was inflammatory and
constituted plain error. However, based upon the following reasons, we
disagree.
{¶29} We initially note that we agree with Appellant that the
comment made during closing by the prosecution may have been
inappropriate, yet we cannot conclude that but for the comment the outcome
Scioto App. No. 15CA3680 21
of the trial would have been different. As set forth above, we have already
noted that Appellant's convictions were based upon sufficient evidence and
were not against the manifest weight of the evidence. Further, this solitary
and isolated comment made by the prosecution was made during closing
arguments. The jury was instructed that “* * * attorneys are not witnesses,
and since it is your duty to decide the case solely on the evidence which you
see and here [sic] in this case, you must not consider as evidence any
statement of any attorney made during the trial.” The jury was further
instructed that “* * * the evidence does not include any statement of counsel
made during the trial, unless such statement was an admission or agreement
admitting certain facts. The opening statements and the closing arguments
of the counsel are designed to assist you, but they are not evidence.” “ ‘A
presumption always exists that the jury has followed the instructions given
to it by the trial court.’ ” State v. Murphy, 4th Dist. Scioto No. 09CA3311,
2010-Ohio-5031, ¶ 81; quoting Pang v. Minch, 53 Ohio St. 3d 186, 559
N.E.2d 1313 (1990), paragraph four of the syllabus.
{¶30} Bearing in mind our plain error standard of review, considering
that this statement was made one time during closing arguments, and in light
of the other evidence before the jury, we cannot conclude that Appellant
would not have been convicted but for the prosecutions’ reference to the
Scioto App. No. 15CA3680 22
race of Appellant’s co-defendant. As such, Appellant has failed to
demonstrate plain error. Accordingly, Appellant’s third assignment of error
is overruled.
ASSIGNMENT OF ERROR IV
{¶31} In his fourth assignment of error, Appellant contends that the
trial court erred in failing to properly advise him of the consequences of
violating postrelease control, which Appellant claims rendered his
convictions partially void. More specifically, Appellant contends that
although the trial court informed him that he may receive a prison term for
the commission of a new felony while on postrelease control, and that that
prison term may be imposed “in addition to” any other prison term imposed
for the new offense, the trial court failed to inform him that a prison term
imposed for the commission of a new felony will be served “consecutively”
to the prison term for the violation of postrelease control. The State argues
that “in addition to” means essentially the same thing as “consecutive to,”
but concedes that this notification does not meet the sentencing requirements
for postrelease control notifications set forth in State v. Pippen, 4th Dist.
Scioto No. 14CA3595, 2014-Ohio-4454.
{¶32} “Generally, when reviewing felony sentences, we apply the
standard of review set forth in R.C. 2953.08(G)(2).” State v. Baker, 4th Dist.
Scioto App. No. 15CA3680 23
Athens No. 13CA18, 2014-Ohio-1967, ¶ 25. See also State v. Brewer, 4th
Dist. Meigs No. 14CA1, 2014-Ohio-1903, ¶ 33 (“we join the growing
number of appellate districts that have abandoned the Kalish plurality's
second-step abuse-of-discretion standard of review; when the General
Assembly reenacted R.C. 2953.08(G)(2), it expressly stated that ‘[t]he
appellate court’s standard of review is not whether the sentencing court
abused its discretion’ ”).5
{¶33} Under R.C. 2953.08(G)(2), we may only modify or vacate a
defendant's sentence if we find, clearly and convincingly, that (1) the record
does not support the mandatory sentencing findings, or (2) that the sentence
is “otherwise contrary to law.” We recognize that this is an “extremely
deferential standard of review.” State v. Venes, 2013-Ohio-1891, 992 N.E.2d
453, at ¶ 21. Although Kalish may not provide the standard of review
framework for reviewing felony sentences, it does provide guidance for
determining whether a sentence is clearly and convincingly contrary to law.
See State v. Lee, 12th Dist. Butler No. CA2012-09-182, 2013-Ohio-3404,
¶ 10. According to Kalish, a sentence is not clearly and convincingly
contrary to law when the trial court considers the purposes and principles set
forth in R.C. 2929.11, as well as the factors listed in R.C. 2929.12, properly
5
State v. Kalish, 120 Ohio St. 3d 23, 2008-Ohio-4912, 896 N.E.2d 124.
Scioto App. No. 15CA3680 24
applies postrelease control, and sentences within the permissible statutory
range. Id.; See also Kalish at ¶ 18.
{¶34} In State v. Pippen, supra, this Court held that a trial court must
incorporate notice of the sanctions set forth in R.C. 2929.141(A) when
giving its notification of the potential penalties for violations of postrelease
control. More specifically, we held the court must include a notification that
a prison term imposed for commission of a new felony during a term of
postrelease control will be served consecutively to the prison term imposed
by the court for the violation of postrelease control. Pippen at ¶ 24. Here,
the trial court advised Appellant as follows, both on the record and in the
sentencing entry, with respect to postrelease control violations:
“If the violation is a new felony, Defendant may receive a
prison term of the greater of one year, or the time remaining on
post release control, in addition to any other prison term
imposed for the new offense.”
Thus, the entry does not state that the prison term must be served
consecutively to the term imposed for the violation of postrelease control.
{¶35} Under our holding in Pippen, the trial court's failure to advise
Appellant of all the consequences of violating postrelease control renders
that part of the sentence void and we must set it aside. Pippen at ¶ 25; citing
Scioto App. No. 15CA3680 25
State v. Fischer, 128 Ohio St. 3d 92, 942 N.E.2d 332, 2010-Ohio-6238, ¶ 26.
Despite a split amongst appellate districts regarding whether this notification
is required, this Court recently adhered to our prior holding in Pippen in
State v. Adkins, 4th Dist. Lawrence No. 14CA29, 2015-Ohio-2830 ¶ 16
(acknowledging different holdings by different districts on this particular
question but reasoning that “principles of stare decisis require that we follow
our prior holding in Pippen unless there is a ‘special justification’ to depart
from it.”).
{¶36} Thus, we find merit to Appellant’s argument that the trial court
erred in failing to properly impose postrelease control, however, we disagree
with Appellant’s conclusion that such error renders his convictions void.
Instead, we conclude that the error renders only the postrelease control
portion of Appellant’s sentence void. Id. at ¶ 20. As such, we find merit to
Appellant’s fourth assignment of error. Accordingly, we order the
postrelease control portion of Appellant’s sentence to be vacated, and
remand this matter to the trial court for re-sentencing.
ASSIGNMENT OF ERROR V
{¶37} In his fifth and final assignment of error, Appellant contends
that he received ineffective assistance of counsel to a degree that he did not
receive a fair trial. Criminal defendants have a right to counsel, including a
Scioto App. No. 15CA3680 26
right to the effective assistance from counsel. McMann v. Richardson, 397
U.S. 759, 771, 90 S. Ct. 1441, fn. 14 (1970); State v. Stout, 4th Dist. Gallia
No. 07CA5, 2008-Ohio-1366, ¶ 21. To establish constitutionally ineffective
assistance of counsel, a criminal defendant must show (1) that his counsel's
performance was deficient and (2) that the deficient performance prejudiced
the defense and deprived him of a fair trial. Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052, (1984); State v. Issa, 93 Ohio St. 3d 49, 67,
752 N.E.2d 904 (2001); State v. Goff, 82 Ohio St. 3d 123, 139, 694 N.E.2d
916 (1998). “In order to show deficient performance, the defendant must
prove that counsel's performance fell below an objective level of reasonable
representation. To show prejudice, the defendant must show a reasonable
probability that, but for counsel's errors, the result of the proceeding would
have been different.” State v. Conway, 109 Ohio St. 3d 412, 2006-Ohio-
2815, 848 N.E.2d 810, ¶ 95. “Failure to establish either element is fatal to
the claim.” State v. Jones, 4th Dist. Scioto No. 06CA3116, 2008-Ohio-968,
¶ 14.
{¶38} “When considering whether trial counsel's representation
amounts to deficient performance, ‘a court must indulge a strong
presumption that counsel's conduct falls within the wide range of reasonable
professional assistance.’ ” State v. Walters, 4th Dist. Washington Nos.
Scioto App. No. 15CA3680 27
13CA33, 13CA36, 2014-Ohio-4966, ¶ 23; quoting Strickland at 689, 104
S. Ct. 2052. “Thus, ‘the defendant must overcome the presumption that,
under the circumstances, the challenged action might be considered sound
trial strategy.’ ” Id.; quoting Strickland at 689. “ ‘A properly licensed
attorney is presumed to execute his duties in an ethical and competent
manner.’ ” Id.; quoting State v. Taylor, 4th Dist. Washington No. 07CA11,
2008-Ohio-482, ¶ 10. “Therefore, a defendant bears the burden to show
ineffectiveness by demonstrating that counsel's errors were so serious that he
or she failed to function as the counsel guaranteed by the Sixth
Amendment.” Id.
{¶39} Appellant contends that his trial counsel was deficient in two
ways. First, he argues that trial counsel failed to but should have objected to
the admission of testimony pertaining to his prior drug use. Specifically,
Appellant claims his trial counsel should have objected to testimony in
which Appellant, in response to Trooper Lewis’ inquiry, stated he smokes
crack cocaine. Appellant argues that the admission of this statement should
have been excluded under Evid.R. 404(B) as evidence of other crimes,
wrongs, or acts, which are not admissible to prove the character of a person
or to show action in conformity therewith. The State responds by arguing
that this testimony was not improper character testimony, but rather was an
Scioto App. No. 15CA3680 28
admission against interest by Appellant. The State further argues that even
if the statement could be considered other acts testimony, evidence of
motive is admissible under other acts.
{¶40} At trial, Trooper Lewis testified as follows:
“I had asked Mr. Dixon if he wanted to give me a written
statement. He said at the time he didn’t want to give a written
statement. But as I’m sitting there doing my paperwork, the
incarceration forms, writing out his citation and things like that,
I began to talk to him and asked him, you know, if he smoked
crack cocaine. He advised that he did smoke crack cocaine. I
also asked if he was getting paid to take Mr. Barnes to – they –
they told me they were going to Kentucky, originally. I asked
him if he was getting paid to go to Kentucky. He said he didn’t
know. I asked him if he was going to get some of the crack
cocaine. He said they didn’t discuss details, he just knew that
he was getting paid to take him down there, whether it would be
cash or crack cocaine.”
{¶41} As argued by Appellant, under Evid.R. 404(B), “[e]vidence of
other crimes, wrongs, or acts is not admissible to prove” a defendant's
character or in order to show criminal propensity. However, as also argued
Scioto App. No. 15CA3680 29
by the State, it may be admissible to show “motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.”
(Emphasis added). We find that here, Appellant’s statement was admissible
for purposes of showing knowledge of the existence of the drugs at issue, as
well as motive for his involvement in the transportation of the drugs. Thus,
we cannot say that counsel’s performance was deficient for failing to object
to the admission of the statement, or that Appellant was prejudiced by the
failure to object. Further, as noted by the State, it is apparent that part of
defense counsel’s strategy was to paint the picture that Appellant was a drug
user, but not a trafficker, and counsel for Appellant argued to that effect
during closing arguments. Thus, it is reasonable to conclude that defense
counsel did not object to the admission of the statement for tactical reasons.
As such, we cannot conclude that Appellant has overcome the presumption
that counsel’s actions were sound trial strategy.
{¶42} Secondly, Appellant argues that trial counsel failed to object to
the playing of the videotaped statements between him and Barnes, as Barnes
was unable to be subjected to cross-examination. Appellant contends this
evidence violated his Sixth Amendment right of confrontation. The State
responds by primarily arguing that Appellant had no reasonable expectation
of privacy regarding statements made in the back of a police cruiser. The
Scioto App. No. 15CA3680 30
State also argues that a recording of Appellant’s own actions and reactions
does not implicate the confrontation clause, that the statements of Barnes
were not offered for the truth of the matter asserted, and that playing the
video tape was part of defense counsel’s trial strategy.
{¶43} “[T]he admission or exclusion of evidence generally rests in the
trial court's sound discretion.” State v. Jeffers, 4th Dist. Gallia No. 08CA7,
2009-Ohio-1672, ¶ 17; citing State v. Sage, 31 Ohio St. 3d 173, 510 N.E.2d
343 (1987). “However, questions concerning evidentiary issues that also
involve constitutional protections, including confrontation clause issues,
should be reviewed de novo.” Jeffers at ¶ 17; citing State v. Hardison, 9th
Dist. Summit No. 23050, 2007-Ohio-366.
{¶44} The Sixth Amendment to the United States Constitution
provides, “[i]n all criminal prosecutions, the accused shall enjoy the right
* * * to be confronted with the witnesses against him.” The Supreme Court
of the United States has “held that this bedrock procedural guarantee applies
to both federal and state prosecutions.” Crawford v. Washington, 541 U.S.
36, 42, 124 S. Ct. 1354, (2004); citing Pointer v. Texas, 380 U.S. 400, 406,
85 S. Ct. 1065, (1965). Likewise, Section 10, Article I of the Ohio
Constitution provides, “[i]n any trial, in any court, the party accused shall be
allowed * * * to meet the witnesses face to face.” Before its admission,
Scioto App. No. 15CA3680 31
“[w]here testimonial evidence is at issue * * * the Sixth Amendment
demands what the common law required: unavailability and a prior
opportunity for cross examination.” Crawford, 541 U.S. at 68.
{¶45} The threshold inquiry is whether the challenged out-of-court
statements were testimonial in nature and needed to be tested by
confrontation. See State v. Lewis, 1st Dist. Hamilton Nos. C-050989 and
C060010, 2007-Ohio-1485, ¶ 30. Statements are “testimonial when the
circumstances objectively indicate that there is no * * * ongoing emergency,
and that the primary purpose of the interrogation is to establish or prove past
events potentially relevant to later prosecution.” Davis v. Washington, 547
U.S. 813, 822, 126 S. Ct. 2266, (2006); see also State v. Stahl, 111 Ohio
St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834, paragraph one of the syllabus.
Although the Supreme Court of the United States has not specifically
defined what constitutes a “testimonial” statement, it has been held, at a
minimum, to apply to “prior testimony at a preliminary hearing, before a
grand jury, or at a former trial, and responses to police interrogations.” State
v. Mills, 2nd Dist. Montgomery No. 21146, 2005-Ohio-2128, ¶ 17; See also
State v. Ha, 9th Dist. Medina No. 07CA0089-M, 2009-Ohio-1134, ¶ 55.
{¶46} Here, there was no ongoing emergency, and there was no
interrogation. Rather, the video played for the jury contained an ongoing
Scioto App. No. 15CA3680 32
conversation between Appellant and Barnes while they were lodged in the
backseat of the trooper’s cruiser. All the statements made were voluntary
and not made in response to any sort of interrogation by law enforcement.
Thus, we cannot conclude that the statements contained in the trooper cam
video were testimonial as contemplated by Crawford, or that they offend the
confrontation clause.
{¶47} Further, as argued by the State, there could be no expectation of
privacy with respect to statements made in the back of a trooper’s cruiser.
As discussed by the Seventh District Court of Appeals:
“Various Ohio courts have held that there is no expectation of
privacy in the back of a police cruiser, and have declined to
exclude a variety of communications recorded in the back of a
cruiser without the knowledge of one or all individuals
involved. State v. Ingram, 9th Dist. No. 10CA0022-M, 2010-
Ohio-3546, ¶ 15-17 (appellant had no reasonable expectation in
his cell phone conversation with his mother which was recorded
while he was seated in the back seat of the police cruiser prior
to formal arrest) accord State v. Blackwell, 8th Dist. No. 87278,
2006-Ohio-4890, ¶ 33-35 (appellant had no reasonable
expectation of privacy in his unwittingly tape-recorded
Scioto App. No. 15CA3680 33
conversation in the back of a police cruiser with two co-
defendants regardless of the fact that one co-defendant then
turned state's evidence) accord State v. Skidmore, 12th Dist. No.
CA99-12-137, 2000 WL 1086722 (August 7, 2000) (where
appellant, who had been arrested but not read his rights, and did
not know he was being recorded, made spontaneous statements
while in the back of the police cruiser, the reviewing court
found that there was no Miranda violation, appellant had no
expectation of privacy in the cruiser, and trial counsel was not
ineffective for not having sought to suppress the recording).”
State v. Dillard, 7th Dist. Columbiana No. 09CO28, 2012-
Ohio-2716, ¶ 37.
{¶48} We cannot conclude, based upon the facts before us and the
foregoing case law, that Appellant’s trial counsel’s performance was
deficient, or that the outcome of the trial would have been different had
counsel objected to the complained of testimony. Because we cannot
conclude that Appellant received ineffective assistance of counsel, his fifth
assignment of error is overruled.
{¶49} Having found no merit to the assignments of error challenging
his convictions, Appellant’s convictions are affirmed. However, having
Scioto App. No. 15CA3680 34
found a sentencing error related to the imposition of postrelease control, the
postrelease control portion of Appellant’s sentence is vacated and this matter
is remanded to the trial court for proper imposition of postrelease control.
JUDGMENT AFFIRMED IN
PART, VACATED IN PART, AND
REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT
WITH THIS OPINION.
Scioto App. No. 15CA3680 35
Harsha, J., concurring in part and dissenting in part:
{¶50} I dissent from that part of the court’s opinion sustaining
Dixon’s fourth assignment of error and vacating the post-release-control
portion of his sentence. I did not participate in State v. Pippen, 4th Dist.
Scioto No. 14CA3595, 2014-Ohio-4454, and I dissented from State v.
Adkins, 4th Dist. No. 14CA29, 2015-Ohio-2830, the two cases cited by the
majority opinion in support of their disposition of the fourth assignment of
error.
{¶51} As I previously observed in my dissent to Adkins at ¶ 28-29, I
agree with the Eighth District’s holding in State v. Bybee, 2015-Ohio-878,
28 N.E.3d 149 (8th Dist.). See also State ex rel. Cornwall v. Sutula, 8th
Dist. Cuyahoga No. 103322, 2015-Ohio-4704, ¶ 6-9. Consequently, “[i]n
reading R.C. 2929.141(A) it is clear there is no provision in that statute
requiring the trial court in the original sentencing context to notify a
defendant that a court sentencing the defendant for a subsequent crime can
impose additional sanctions for the violation of post-conviction relief.”
Adkins at ¶ 29 (Harsha, J., dissenting). “Unlike R.C. 2929.19(B), which
expressly requires notifications concerning the parole board’s authority to
impose sanctions for violations, R.C. 2929.141(A) addresses the trial court’s
authority to do so, and is silent about notification in the original sentencing
Scioto App. No. 15CA3680 36
context.” Id. As the Eighth District recently observed in rejecting our
holdings in Pippen and Adkins, “[b]oth the Seventh and Twelfth Districts
have rejected attempts to extend [the Supreme Court of Ohio’s] mandatory
notifications for postrelease control under R.C. 2929.19(B) to 2929.141,
because R.C. 2929.141 contains no such notification requirement.”
Cornwall at ¶ 10, citing State v. Mullins, 12th Dist. Butler No. CA2007-01-
028, 2008-Ohio-1995, and State v. Susany, 7th Dist. Mahoning No. 07 MA
7, 2008-Ohio-1543. Our appellate district appears to be the outlier on this
issue. I would join the Seventh, Eighth, and Twelfth Districts, overrule
those portions of our opinions in Pippen and Adkins that hold otherwise.
{¶52} I concur with the remainder of the opinion, except for the cite at
¶ 32 to our decision in State v. Brewer, supra.
Scioto App. No. 15CA3680 37
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED IN PART,
VACATED IN PART, AND REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION. Appellant and
Appellee shall split costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Scioto County Common Pleas Court to carry this judgment into
execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Abele, J.: Concurs in Judgment and Opinion.
Harsha, J.: Concurs in Part and Dissents in Part with Opinion.
For the Court,
BY: ____________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL: Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with the clerk.