State v. Dukes , 2017 Ohio 7204 ( 2017 )

[Cite as State v. Dukes, 2017-Ohio-7204.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
STATE OF OHIO, : Case Nos. 16CA3745
: 16CA3760
Plaintiff-Appellee, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
YOLANDA DUKES, :
:
Defendant-Appellant. : Released: 08/07/17
_____________________________________________________________
APPEARANCES:
James H. Banks, Dublin, Ohio, for Appellant.
Mark E. Kuhn, Scioto County Prosecuting Attorney, and Jay Willis, Scioto
County Assistant Prosecuting Attorney, Portsmouth, Ohio, for Appellee.
_____________________________________________________________
McFarland, J.
{¶1} Appellant, Yolanda Dukes, appeals the trial court’s judgment
denying her motion to suppress, her convictions and sentences imposed after
a jury trial, as well as the trial court’s judgment denying her motion for a
new trial. On appeal, Appellant contends that 1) the trial court erred in
refusing to suppress her statements and the pills obtained through illegal
search of her vehicle; 2) her due process rights were violated and her
indictment and conviction did not set forth proper elements of the crimes
charged, nor the valid statutory provisions for the crimes such as to require
Scioto App. Nos. 16CA3745 and 16CA3760 2
reversal of her convictions; 3) the trial court erred in sentencing her; and 4)
the trial court erred in refusing to grant a new trial based upon jury
misconduct.
{¶2} Because we have failed to find merit in any of the assignments
of error raised by Appellant, the judgments of the trial court with regard to
both motions to suppress and the motion for new trial court are affirmed.
Further, the judgment of the trial court convicting and sentencing Appellant
on felony trafficking and possession of oxycodone and hydrocodone is also
affirmed.
FACTS
{¶3} A review of the record herein indicates that Appellant was
indicted on four felony counts as follows: count one, aggravated trafficking
(oxycodone/schedule II) in violation of R.C. 2925.03(A)(2) and
2925.03(C)(1)(d), a second degree felony; count two, aggravated possession
of drugs (oxycodone/schedule II) in violation of R.C. 2925.11(A) and R.C.
2925.11(C)(1)(c), a second degree felony; count three, trafficking in drugs
(hydrocodone/schedule III) in violation of R.C. 2925.03(A)(2) and R.C.
2925.03(C)(2)(d), a third degree felony; and count four, possession of drugs
Scioto App. Nos. 16CA3745 and 16CA3760 3
(hydrocodone/schedule III) in violation of R.C. 2925.11(A) and
2925.11(C)(2)(c), a third degree felony.1
{¶4} The indictment stemmed from a traffic stop that occurred on
January 2, 2015. As the case proceeded through discovery, Appellant filed
two different motions to suppress. The first motion primarily focused on the
traffic stop and search, and it was denied by the trial court. The second
motion primarily focused on statements made by Appellant allegedly
without the benefit of Miranda warnings. The trial court granted the motion
in part, ordering all statements made by Appellant prior to receiving
Miranda warnings at the Ohio State Highway Patrol Post be suppressed.
However, the trial court found that Miranda warnings were given at the
patrol post and that statements made thereafter were admissible.
{¶5} The case proceeded to a two-day jury trial. The State presented
three witnesses, including Trooper Drew Kuehne (the K-9 officer who
initiated the traffic stop), Trooper Nick Lewis (another trooper who assisted
with the stop and search), Detective Steve Brewer (for stipulations to chain
of custody), and Jennifer Sulcebarger, a forensic drug chemist employed
with the Ohio Bureau of Criminal Identification and Investigation (who
testified regarding the identification and amount of the drugs discovered in
1
As will be discussed below, hydrocodone is actually a Schedule II drug, not a Schedule III drug.
Scioto App. Nos. 16CA3745 and 16CA3760 4
Appellant’s vehicle). Appellant testified on her own behalf and presented no
other witnesses.
{¶6} A review of the trial testimony indicates that Appellant was
traveling southbound in a rented vehicle with out-of-state license plates on
Route 23 near Portsmouth, Ohio, with a passenger, Darryl Brown, at
approximately 11:45 a.m. on January 2, 2015. According to Trooper
Kuehne, Appellant was stopped after she made an abrupt lane change which
cut off the vehicle behind her, and thereafter traveled over the fog line,
resulting in a marked lanes violation.2 The violations were not caught on the
cruiser video. Trooper Kuehne asked Appellant to get out of her vehicle and
placed her in the front seat of his cruiser while he ran the license and
information of both Appellant and her passenger.
{¶7} While waiting on information from dispatch, Trooper Kuehne
asked Appellant where she was going, and she said she was going to
Cincinnati to shop. When he informed her she wasn’t headed towards
Cincinnati, she then stated she was going to Kentucky first to visit a cousin.
Appellant also stated they were returning to Michigan that day, as she had to
turn the car in the next day. Trooper Kuehne considered Appellant’s story to
be odd due to the stated destinations and time frames and, as a result, he
2
Appellant testified at trial and denied committing any traffic violations.
Scioto App. Nos. 16CA3745 and 16CA3760 5
requested dispatch to also run a criminal history report as well. Trooper
Kuehne then asked the passenger, who was still seated in Appellant’s
vehicle, the same questions. Based upon the answers given by the
passenger, Trooper Kuehne decided to walk his dog around Appellant’s
vehicle to conduct a canine sniff. Another officer, Trooper Lewis, arrived
around this time to assist.
{¶8} The canine sniff resulted in the K-9 indicating on the driver’s
side door of Appellant’s vehicle. As a result, Appellant and her passenger
were both placed in the back of Trooper Lewis’ cruiser while both troopers
conducted a search of the vehicle. The troopers eventually located
approximately 500 oxycodone pills and approximately 200 hydrocodone
pills in the passenger side kick panel, as well as a MapQuest printout with
directions from 17661 Collinson Avenue, East Point, Michigan, which was
Appellant’s address, to 1601 High Street, Portsmouth, Ohio.
{¶9} Appellant and her passenger were then transported to the patrol
post, where they were Mirandized and questioned. The passenger remained
silent but Appellant engaged in a conversation with law enforcement which
resulted in her informing them that she was bringing the drugs in question to
“a fein named Rock,” and that the directions were to his house. Trooper
Lewis was familiar with a Rocky Newman, whose mother lived on High
Scioto App. Nos. 16CA3745 and 16CA3760 6
Street, and obtained a photo of Rocky. Appellant confirmed the photo was
the “Rock” she was to meet to deliver the drugs and obtain $13,000 in
exchange. Appellant then worked with law enforcement to conduct an
attempted controlled buy involving Rocky Newman at a local motel.
Apparently, however, no deal ended up being made and little other
information was presented regarding the results of the attempted controlled
buy. Appellant and her passenger were both permitted to go home that
night.
{¶10} The case was submitted to the jury for a decision, which
ultimately resulted in Appellant being convicted on all counts of the
indictment. In imposing sentence, the trial court merged count two with
count one and imposed a stated mandatory prison term of five years. The
trial court also merged count four with count three and imposed a stated
mandatory prison term of thirty-six months. The trial court further ordered
the sentences to be served consecutively. Thereafter, a report of alleged
juror misconduct was brought to the trial court’s attention by way of
Appellant’s filing of a motion for a new trial. The motion alleged that jurors
had utilized their cell phones during jury deliberations to look up
information and definitions related to the charges.
Scioto App. Nos. 16CA3745 and 16CA3760 7
{¶11} As a result, the trial court conducted a hearing attended by all
of the jurors on the case. After questioning each juror and being satisfied
that the misconduct did not affect the outcome of the trial, the trial court
denied Appellant’s motion for a new trial. Appellant has now timely
appealed from her convictions and sentences, as well as the trial court’s
denial of her motions to suppress and motion for a new trial, setting forth the
following assignments of error for our review.
ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT ERRED IN REFUSING TO SUPPRESS
DEFENDANT’S STATEMENTS AND THE PILLS OBTAINED
THROUGH ILLEGAL SEARCH OF HER VEHICLE.
II. THE DEFENDANT’S DUE PROCESS RIGHTS WERE VIOLATED
AND HER INDICTMENT AND CONVICTION DID NOT SET
FORTH PROPER ELEMENTS OF THE CRIMES CHARGED NOR
THE VALID STATUTORY PROVISIONS FOR THE CRIMES
SUCH TO REQUIRE REVERSAL OF HER CONVICTIONS.
III. THE TRIAL COURT ERRED IN SENTENCING THE
DEFENDANT.
IV. THE TRIAL COURT ERRED IN REFUSING TO GRANT A NEW
TRIAL BASED UPON JURY MISCONDUCT.”
ASSIGNMENT OF ERROR I
{¶12} In her first assignment of error, Appellant challenges the trial
court’s denial of her motions to suppress. Appellant raises multiple issues
under this assignment of error, which are as follows: 1) whether the stop of
Scioto App. Nos. 16CA3745 and 16CA3760 8
her vehicle was unlawful and based impermissibly on racial profiling and
lack of probable cause; 2) whether the canine sniff of her vehicle unlawfully
extended the traffic stop; 3) whether the search of her vehicle was based
upon speculation and violates her Fourth Amendment rights; 4) whether her
interrogation prior to receiving Miranda warnings requires suppression of
her statements; 5) whether the statements she made prior to receiving
Miranda warnings require suppression of later statements as fruit of the
poisonous tree; 6) whether the trial court’s ruling admonishing her that
statements made at her suppression hearing could be used against her at trial
improperly required her to forfeit her Miranda rights, such to require
reversal of her convictions; and 7) whether said admonitions constitute plain
error and require reversal of her convictions.
STANDARD OF REVIEW
{¶13} Appellate review of a motion to suppress presents a mixed
question of law and fact. State v. Gurley, 2015–Ohio–5361, 54 N.E.3d 768,
¶ 16 (4th Dist.); citing State v. Roberts, 110 Ohio St. 3d 71, 2006–Ohio–
3665, 850 N.E.2d 1168, ¶ 100. At a suppression hearing, the trial court acts
as the trier of fact and is in the best position to resolve factual questions and
evaluate witness credibility. Id.; State v. Burnside, 100 Ohio St. 3d 152,
2003–Ohio–5372, 797 N.E.2d 71, ¶ 8. Thus, when reviewing a ruling on a
Scioto App. Nos. 16CA3745 and 16CA3760 9
motion to suppress, we defer to the trial court's findings of fact if they are
supported by competent, credible evidence. Gurley at ¶ 16; citing State v.
Landrum, 137 Ohio App. 3d 718, 722, 739 N.E.2d 1159 (4th Dist.2000).
However, “[a]ccepting those facts as true, we must independently determine
whether the trial court reached the correct legal conclusion in analyzing the
facts of the case.” Id.; citing Roberts at ¶ 100.
FOURTH AMENDMENT
{¶14} “ ‘The Fourth Amendment to the United States Constitution
and the Ohio Constitution, Article I, Section 14, prohibit unreasonable
searches and seizures.’ ” State v. Shrewsbury, 4th Dist. Ross No. 13CA3402,
2014–Ohio–716, ¶ 14; quoting State v. Emerson, 134 Ohio St. 3d 191, 2012–
Ohio–5047, 981 N.E.2d 787, ¶ 15. “This constitutional guarantee is
protected by the exclusionary rule, which mandates the exclusion of the
evidence obtained from the unreasonable search and seizure at trial.” Id.;
citing Emerson at ¶ 15; see also State v. Lemaster, 4th Dist. Ross No.
11CA3236, 2012–Ohio–971, ¶ 8 (“If the government obtains evidence
through actions that violate an accused's Fourth Amendment rights, that
evidence must be excluded at trial.”).
Scioto App. Nos. 16CA3745 and 16CA3760 10
INITIAL STOP
{¶15} “An officer's temporary detention of an individual during a
traffic stop constitutes a seizure of a person within the meaning of the Fourth
Amendment * * *.” State v. Lewis, 4th Dist. Scioto No. 08CA3226, 2008–
Ohio–6691, ¶ 14; see also State v. Eatmon, 4th Dist. Scioto No. 12CA3498,
2013–Ohio–4812, ¶ 13 (quoting Lewis). “To be constitutionally valid, the
detention must be reasonable under the circumstances.” Lewis at ¶ 14.
“While probable cause ‘is certainly a complete justification for a traffic
stop,’ it is not required.” Eatmon at ¶ 13; quoting State v. Mays, 119 Ohio
St.3d 406, 2008–Ohio–4539, 894 N.E.2d 1204, ¶ 23. “So long as ‘an
officer's decision to stop a motorist for a criminal violation, including a
traffic violation, is prompted by a reasonable and articulable suspicion
considering all the circumstances, then the stop is constitutionally valid.’ ”
Id.; quoting Mays at ¶ 8. “Reasonable and articulable suspicion is a lower
standard than probable cause.” Id.; citing Mays at ¶ 23.
{¶16} A police officer may stop the driver of a vehicle after
observing a de minimis violation of traffic laws. State v. Debrossard, 4th
Dist. Ross. No. 13CA3395, 2015–Ohio–1054, ¶ 13; citing State v. Guseman,
4th Dist. Athens No. 08CA15, 2009–Ohio–952, ¶ 20; citing State v. Bowie,
4th Dist. Washington No. 01CA34, 2002–Ohio–3553, ¶ 8, 12, and 16; citing
Scioto App. Nos. 16CA3745 and 16CA3760 11
Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769 (1996). See also
Dayton v. Erickson, 76 Ohio St. 3d 3, 655 N.E.2d 1091 (1996), syllabus.
Further, the Supreme Court of Ohio has clearly stated: “Where a police
officer stops a vehicle based on probable cause that a traffic violation has
occurred or was occurring, the stop is not unreasonable under the Fourth
Amendment to the United States Constitution even if the officer had some
ulterior motive for making the stop[.]” Dayton at paragraph one of the
syllabus.
{¶17} Additionally, with respect to allegations of racial profiling,
racial profiling has been rejected as a legal basis for the suppression of
evidence. State v. Coleman, 3rd Dist. Hancock No. 5-13-15, 2014-Ohio-
1483, ¶ 18; citing State v. Chambers, 3rd Dist. Hancock No. 5-10-29, 2011-
Ohio-1305, ¶ 22; see also United States v. Cousin, 448 Fed.Appx. 593, 594
(6th Cir.2012) (explaining that United States v. Nichols, 512 F.3d 789, 794-
795 (6th Cir. 2008) precludes the application of the exclusionary rule for
alleged racial profiling.). In City of Cleveland v. Oko, 2016-Ohio-7774, --
N.E.3d--, ¶ 20 (8th Dist.), the court noted that “[a]ll challenges to the
validity of a traffic stop are subject to the same Terry standard of review,
even where the defendant raises allegations of pretext.” Additionally, in
State v. Gartrell, 2014-Ohio-5203, 24 N.E.3d 680, ¶ 68 (3rd Dist.), the court
Scioto App. Nos. 16CA3745 and 16CA3760 12
noted that “[a]ny ulterior motives for the traffic stop are irrelevant to the
determination of whether the officers possessed a reasonable, articulable
suspicion justifying the stop.” (internal citations omitted).
{¶18} Here, Trooper Kuehne, along with his K-9, stopped
Appellant’s vehicle as it was heading south on Route 23 just outside of
Portsmouth, Ohio, after witnessing Appellant make an abrupt lane change
that cut off a vehicle in the right lane, then travel outside of her lane and
slow to approximately 45 m.p.h. in a 55 m.p.h. zone. Although these traffic
violations were not on video, Trooper Kuehne testified regarding the reasons
he stopped Appellant’s vehicle at both a suppression hearing and later at
trial. As set forth above, it is well settled that a traffic stop is lawful even if
the traffic violations are minor, or “de minimus.”
{¶19} Furthermore, as set forth above, when a police officer stops a
vehicle based upon probable cause that a traffic violation has occurred or
was occurring, the stop is not unreasonable under the Fourth Amendment
even if the officer had some ulterior motive for making the stop. Thus,
because the trial court accepted the testimony that the trooper witnessed two
traffic violations, and because even a de minimus traffic violation constitutes
probable cause to initiate a traffic stop, the record indicates that the initial
stop of Appellant’s vehicle was lawful, despite Appellant’s allegation that
Scioto App. Nos. 16CA3745 and 16CA3760 13
the trooper had an ulterior motive of racial profiling. As such, we reject
Appellant’s argument that the initial stop of her vehicle was unlawful.
CANINE SNIFF AND DURATION OF STOP
{¶20} The scope and duration of a routine traffic stop “must be
carefully tailored to its underlying justification * * * and last no longer than
is necessary to effectuate the purpose of the stop.” Debrossard at ¶ 16;
quoting Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319 (1983); see
also State v. Gonyou, 108 Ohio App. 3d 369, 372, 670 N.E.2d 1040 (6th
Dist.1995) and State v. Hughes, 4th Dist. Ross No. 97CA2309, 1998 WL
363850. The rule set forth in Royer is designed to prevent law enforcement
officers from conducting “fishing expeditions” for evidence of a crime. See
generally Gonyou; Sagamore Hills v. Eller, 9th Dist. Summit No. 18495,
1997 WL 760693 (Nov. 5, 1997); see also Fairborn v. Orrick, 49 Ohio
App.3d 94, 95, 550 N.E.2d 488 (2nd Dist.1988), (stating that “the mere fact
that a police officer has an articulable and reasonable suspicion sufficient to
stop a motor vehicle does not give that police officer ‘open season’ to
investigate matters not reasonably within the scope of his suspicion”).
{¶21} Generally, “[w]hen a law enforcement officer stops a vehicle
for a traffic violation, the officer may detain the motorist for a period of time
sufficient to issue the motorist a citation and to perform routine procedures
Scioto App. Nos. 16CA3745 and 16CA3760 14
such as a computer check on the motorist's driver's license, registration and
vehicle plates.” State v. Aguirre, 4th Dist. Gallia No. 03CA5, 2003–Ohio–
4909, ¶ 36; citing State v. Carlson, 102 Ohio App. 3d 585, 598, 657 N.E.2d
591 (9th Dist.1995); see also Rodriguez v. United States,—U.S.—, 135 S. Ct.
1609, 1615 (2015) (ordinary inquiries incident to a traffic stop include
“checking the driver's license, determining whether there are outstanding
warrants against the driver, and inspecting the automobile's registration and
proof of insurance”). “In determining if an officer completed these tasks
within a reasonable length of time, the court must evaluate the duration of
the stop in light of the totality of the circumstances and consider whether the
officer diligently conducted the investigation.” Id.; citing State v. Cook, 65
Ohio St. 3d 516, 521–522, 605 N.E.2d 70 (1992) (fifteen-minute detention
was reasonable); United States v. Sharp, 470 U.S. 675, 105 S. Ct. 1568
(1985), (twenty-minute detention was reasonable).
{¶22} Additionally, once a driver has been lawfully stopped, an
officer may order the driver to get out of the vehicle without any additional
justification. State v. Kilbarger, 4th Dist. Hocking No. 11CA23, 2012-Ohio-
1521, ¶ 16; citing State v. Huffman, 2nd Dist. Clark No. 2010–CA–104,
2011-Ohio-4668, ¶ 8. See Pennsylvania v. Mimms, 434 U.S. 106, 111, 98
S. Ct. 330, fn. 6 (1977); See also State v. Alexander–Lindsey, 2016-Ohio-
Scioto App. Nos. 16CA3745 and 16CA3760 15
3033, 65 N.E.3d 129, ¶ 14 (“Officers can order a driver and a passenger to
exit the vehicle, even absent any additional suspicion of a criminal
violation.”) (internal citations omitted). However, “the officer must
‘carefully tailor’ the scope of the stop ‘to its underlying justification,’ and
the stop must ‘last no longer than is necessary to effectuate the purpose of
the stop.’ ” State v. Marcinko, 4th Dist. Washington No. 06CA51, 2007-
Ohio-1166, ¶ 26; quoting Florida v. Royer at 500. “An officer may lawfully
expand the scope of the stop and may lawfully continue to detain the
individual if the officer discovers further facts which give rise to a
reasonable suspicion that additional criminal activity is afoot.” Id.
{¶23} Further, a lawfully detained vehicle may be subjected to a
canine check of the vehicle's exterior even without the presence of a
reasonable suspicion of drug-related activity. State v. Rusnak, 120 Ohio
App.3d 24, 28, 696 N.E.2d 633 (6th Dist.1997). Both Ohio courts and the
United States Supreme Court have determined that “the exterior sniff by a
trained narcotics dog to detect the odor of drugs is not a search within the
meaning of the Fourth Amendment to the Constitution.” State v. Jones, 4th
Dist. Washington No. 03CA61, 2004–Ohio–7280, ¶ 24; United States v.
Place, 462 U.S. 696, 103 S. Ct. 2637 (1983). Thus, a canine check of a
Scioto App. Nos. 16CA3745 and 16CA3760 16
vehicle may be conducted during the time period necessary to effectuate the
original purpose of the stop. Jones at ¶ 24.
{¶24} During a continued, lawful detention of a vehicle, as discussed
above, officers are not required to have a reasonable, articulable suspicion of
criminal activity in order to call in a canine unit to conduct a canine sniff on
the vehicle. See, e.g., State v. Feerer, 12th Dist. Warren No. CA2008–05–
064, 2008–Ohio–6766, ¶ 10. “Because the ‘exterior sniff by a trained
narcotics dog is not a search within the meaning of the Fourth Amendment
to the Constitution,’ a canine sniff of a vehicle may be conducted even
without the presence of such reasonable, articulable suspicion of criminal
activity so long as it is conducted during the time period necessary to
effectuate the original purpose of the stop.” Id. See also United States v.
Place, supra. “A drug sniffing dog used to detect the presence of illegal
drugs in a lawfully detained vehicle does not violate a reasonable
expectation of privacy and is not a search under the Ohio Constitution.”
State v. Waldroup, 100 Ohio App. 3d 508, 514, 654 N.E.2d 390 (12th
Dist.1995).
{¶25} Further, “[a]n officer may expand the scope of the stop and
may continue to detain the vehicle without running afoul of the Fourth
Amendment if the officer discovers further facts which give rise to a
Scioto App. Nos. 16CA3745 and 16CA3760 17
reasonable suspicion that additional criminal activity is afoot.” State v. Rose,
4th Dist. Highland No. 06CA5, 2006–Ohio–5292, ¶ 17; citing State v.
Robinette, 80 Ohio St. 3d 234, 240, 685 N.E.2d 762 (1997). The Robinette
court explained, at paragraph one of the syllabus:
“When a police officer's objective justification to continue
detention of a person * * * is not related to the purpose of the
original stop, and when that continued detention is not based on
any articulable facts giving rise to a suspicion of some illegal
activity justifying an extension of the detention, the continued
detention to conduct a search constitutes an illegal seizure.”
Conversely, “if a law enforcement officer, during a valid investigative stop,
ascertains ‘reasonably articulable facts giving rise to a suspicion of criminal
activity, the officer may then further detain and implement a more in-depth
investigation of the individual.’ ” Rose at ¶ 17; quoting Robinette at 241.
{¶26} However, the United States Supreme Court in Rodriguez v.
United States, supra, recently held that while a police officer “may conduct
certain unrelated checks during an otherwise lawful traffic stop * * * he may
not do so in a way that prolongs the stop, absent the reasonable suspicion
ordinarily demanded to justify detaining an individual.” Id. at 1615.
Accordingly, the Court concluded that police officers may not extend an
otherwise-completed traffic stop, absent reasonable suspicion, in order to
conduct a dog sniff. Id. at 1614–1617. (Emphasis added).
Scioto App. Nos. 16CA3745 and 16CA3760 18
{¶27} Finally, “In determining whether a detention is reasonable, the
court must look at the totality of the circumstances.” State v. Matteucci, 11th
Dist. Lake No. 2001–L–205, 2003–Ohio–702, ¶ 30. The totality of the
circumstances approach “allows officers to draw on their own experience
and specialized training to make inferences from and deductions about the
cumulative information available to them that ‘might well elude an untrained
person.’ ” State v. Ulmer, 4th Dist. Scioto No. 09CA3283, 2010–Ohio–695,
¶ 23; United States v. Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744 (2002).
Thus, when an appellate court reviews a police officer's reasonable suspicion
determination, “the court must give ‘due weight’ to factual inferences drawn
by resident judges and local law enforcement officers.” Ulmer at ¶ 23;
Ornelas v. United States, 517 U.S. at 699.
{¶28} Here, based upon our review of the record, Appellant’s vehicle
was initially stopped at approximately 11:45 a.m. Upon approaching the
vehicle, Trooper Kuehne noted Appellant appeared to be extremely nervous,
to the extent he could see Appellant’s pulse in the side of her neck, and also
observed Appellant’s hands to be shaking. Trooper Kuehne also noted the
passenger would not make eye contact and was breathing very heavily.
Trooper Kuehne obtained information from both Appellant and her
passenger and asked Appellant to step out of the vehicle and sit in his cruiser
Scioto App. Nos. 16CA3745 and 16CA3760 19
while he ran their information, which he stated would take a little longer
because they were both from out state. As set forth above, law enforcement
may lawfully order both a driver and passenger from the vehicle without
reasonable suspicion of criminal activity and may also run certain checks
regarding the identity of the driver and passenger upon making a traffic stop.
Thus, we find no error with the removal of Appellant from the vehicle or the
request for information from both Appellant and her passenger.
{¶29} After speaking to both Appellant and her passenger separately
and observing that they had differing stories as to their purpose, destination
and return time, and while waiting on the requested information to be
provided by the computer and/or dispatch, the trooper decided to walk his
dog around the vehicle for a canine sniff of the exterior of the vehicle. The
canine was deployed and began conducting the sniff at 12:01 p.m., just
sixteen minutes after the initial stop was made. Again, as set forth above, a
canine sniff of a vehicle may be performed without reasonable suspicion of
criminal activity and does not constitute a search within the meaning of the
Fourth Amendment. Thus, Trooper Kuehne was not required to have
reasonable suspicion of criminal activity to deploy his canine and we find
none was needed in this scenario.
Scioto App. Nos. 16CA3745 and 16CA3760 20
{¶30} However, as explained above, in the absence of reasonable
suspicion, a canine sniff cannot serve to extend an otherwise completed
traffic stop. With respect to the duration of the stop, it has been noted that
“an officer should, on average, have completed the necessary checks and be
ready to issue a traffic citation in approximately 15 minutes.” State v. White,
8th Dist. Cuyahoga No. 100624, 2014-ohio-4202, ¶ 22; quoting State v.
Brown, 183 Ohio App. 3d 337, 2009-Ohio-3804, 91 N.E.2d 1138, ¶ 23 (6th
Dist.); but see State v. Alexander-Lindsey, supra, (approving the deployment
of K-9 twenty-two minutes into the stop). Again, here, Trooper Kuehne was
still waiting on the information he requested on both the driver and
passenger to be returned, which as he explained to Appellant during the stop
and also testified at trial, usually took a little longer to obtain for out-of-state
licenses. Further, because he was still awaiting the requested information,
he had not begun to issue either a verbal or written warning or citation.
{¶31} In Rodriguez, a police officer issued a written warning to the
defendant Rodriguez during a traffic stop. Id. at 1613. After the officer
returned Rodriguez's information and “ ‘* * * got all the reason[s] for the
stop out of the way[,]* * *’ ” the officer asked for permission to walk his
dog around Rodriguez's vehicle. Id. After Rodriguez refused to consent to
the request, the officer instructed Rodriguez to turn off the ignition, exit the
Scioto App. Nos. 16CA3745 and 16CA3760 21
vehicle, and stand in front of the patrol car to wait for a second officer to
arrive with a dog. Id. The dog later conducted a sniff and alerted to the
presence of drugs in the vehicle. Id. A search of the vehicle revealed a large
bag of methamphetamine. Id.
{¶32} The United States Supreme Court held that while a police
officer “may conduct certain unrelated checks during an otherwise lawful
traffic stop * * * he may not do so in a way that prolongs the stop, absent the
reasonable suspicion ordinarily demanded to justify detaining an individual.”
Id. at 1615. Accordingly, the Court concluded that police officers may not
extend an otherwise-completed traffic stop, absent reasonable suspicion, in
order to conduct a dog sniff. Id. at 1614–1617.
{¶33} This case is factually distinguishable from Rodriguez. In
Rodriguez, the officer asked the defendant if he would allow a dog to
conduct a sniff of the defendant's vehicle. Although Rodriguez refused, the
officer still held Rodriguez until a canine unit arrived for a dog to conduct a
sniff of the vehicle. Here, Trooper Kuehne, who was a K-9 handler and had
his dog with him, decided to conduct a canine sniff of the vehicle before
receiving the information he had requested regarding the driver and
passenger, and before he had even begun to issue either a verbal or written
warning or citation. Thus, the tasks associated with the initial stop of the
Scioto App. Nos. 16CA3745 and 16CA3760 22
vehicle had not been completed and the stop had not been concluded.
Further, when Trooper Kuehne advised Appellant of his plan to conduct a
canine sniff, Appellant said “Go right ahead.” Thus, even though Trooper
Kuehne did not require consent to walk his canine around the vehicle,
Appellant consented. Based upon these facts, and considering the totality of
the circumstances, there is no indication Trooper Kuehne was not being
diligent in the management of time during the stop, or that the canine sniff
unlawfully prolonged or extended the duration of the stop.
{¶34} Further, with respect to the actual canine sniff that was
conducted, the record reveals that the K-9 indicated on the vehicle in the
area of the driver’s side door. As a result of the positive indication by the K-
9, the troopers proceeded to search the vehicle, which ultimately led to the
discovery of approximately 500 oxycodone pills and 200 hydrocodone pills
concealed in the passenger side kick panel, as well as a Mapquest printout
containing directions from Appellant’s residence to 1601 High Street,
Portsmouth, Ohio. This Court has noted that once a trained drug dog alerts
to the odor of drugs, police have probable cause to search the entire vehicle
for drugs and may continue to search even if the passenger compartment
contains no drugs. State v. Baum, 4th Dist. Ross No. 99CA2489, 2000 WL
126678, *3; citing State v. Calhoun, 9th Dist. Lorain No. 94CA5824, 1995
Scioto App. Nos. 16CA3745 and 16CA3760 23
WL 255929 (May 3, 1995); see also State v. White, supra, at ¶ 23 (internal
citations omitted) and State v. Gurley, supra, at ¶ 28. Thus, the K-9's
positive indication on the vehicle provided the troopers with probable cause
to search the vehicle.
{¶35} However, Appellant also challenges the training of the K-9 that
conducted the sniff of the vehicle, arguing that there were no records
introduced regarding the canine’s accuracy. Appellant further argues that
because the K-9 was not trained to detect the smell of the drugs that were
actually found, which were pills, that the canine’s indication on the vehicle
was a false positive. Appellant also suggests Trooper Kuehne struck the
vehicle with his hand to induce the dog to indicate on the vehicle.
{¶36} The record before us reveals that Trooper Kuehne provided
testimony at the suppression hearing regarding the K-9's training and
certification. He testified that the K-9, Rocky, underwent 5-6 weeks of
training on narcotics detection and criminal apprehension and that the K-9
obtained certification. He explained that the K-9 was trained to detect
marijuana, heroin, cocaine, methamphetamine and crack cocaine, but was
not trained to be able to detect pharmaceutical pills, which is what was
actually recovered from Appellant’s vehicle. In White, supra, at ¶ 26, the
court noted that “ ‘[p]roof of the fact that a drug dog is properly trained and
Scioto App. Nos. 16CA3745 and 16CA3760 24
certified is the only evidence material to a determination that a particular
dog is reliable.’ ” quoting State v. Nguyen, 157 Ohio App. 3d 482, 2004-
Ohio-2879, 811 N.E.2d 1180, ¶ 55 (6th Dist.) The White court further noted
that “proof that a dog is properly trained and certified may be established by
means of testimony or through documentary proof.” Id. at ¶ 27 (accepting
the testimony of the trooper/canine handler as the requisite testimony
regarding the training he and his dog completed and their certification for
drug detection.).
{¶37} We are persuaded by the reasoning in White and conclude
Trooper’s Kuehne’s testimony regarding the training both he and Rocky
underwent and the certification they obtained in drug detection sufficiently
established the reliability of the dog in this case. Further, we reject
Appellant’s argument that because Rocky was not trained to detect the smell
of pharmaceutical pills that his indication on the vehicle constituted a false
positive. In State v. Knight, 83 Ohio Misc.2d 79, 679 N.E.2d 758 (1997),
the court reasoned that the mere fact that the dog alerted to a package that
did not contain substances to which the dog was trained to alert was
irrelevant. Further, in State v. Reid, 9th Dist. Lorain No. 12CA010265,
2013-Ohio-4274, the court explained as follows when discussing the
problems with relying on a dog’s field performance:
Scioto App. Nos. 16CA3745 and 16CA3760 25
“If the dog alerts to a car in which the officer finds no narcotics,
the dog may not have made a mistake at all. The dog may have
detected substances there [sic] were too well hidden or present
in quantities too small for the officer to locate. Or the dog may
have smelled the residual odor of drugs previously in the
vehicle or on the driver’s person. Field data thus may markedly
overstate a dog’s real false positives.”
We agree with the foregoing reasoning and conclude that Trooper’s
Kuehne’s testimony sufficiently established the training, certification and
reliability of the K-9 and that the fact he was not trained to indicate on
pharmaceutical pills, but nevertheless indicated on the vehicle, is not a
reason to doubt his reliability or conclude that his indication was a false
positive.
{¶38} Finally, Appellant suggests that Trooper Kuehne improperly
touched the vehicle and, thus, induced the dog to indicate on the vehicle.
When questioned whether he actually struck the vehicle, Trooper Kuehne
testified during the suppression hearing that he performed a “tap-back,”
which he explained involved him waving his hand across an area of the
vehicle to “present” the area to the canine to sniff. He explained that he was
taught to do this as a way of presenting an area of the vehicle to the dog
when the dog’s attention needed to be drawn back to the vehicle or when the
handler believed a dog had missed a certain area of the vehicle when
performing the sniff.
Scioto App. Nos. 16CA3745 and 16CA3760 26
{¶39} “Handler cues are conscious or unconscious signals given from
the handler that can lead a detection dog to where the handler thinks drugs
are located.” State v. Nguyen, supra, at FN. 109; citing United States v.
$80,760.00 in U.S. Currency (N.D.Tex.1991), 781 F. Supp. 462, 478, fn. 36.
The trial court heard the testimony of both Appellant and Trooper Kuehne
during the suppression hearing on whether Trooper Kuehne actually touched
the vehicle in some manner prior to the dog indicating and apparently
accepted Trooper Kuehne’s testimony as being the most credible. This was
a factual and credibility determination properly within the province of the
trial court in ruling on the motion to suppress. We further note that from a
reviewing standpoint, the placement of the trooper’s hand prior to the dog’s
indication is not visible on the video. As such, the trial court was in the best
position to hear the testimony and we defer to the trial court on this factual
determination. We reject this argument as well.
{¶40} In light of the foregoing, and based upon the totality of the
circumstances, we conclude that the initial stop, detention, canine sniff and
subsequent search of the vehicle were lawful and thus constitutionally valid.
As such, we reject the arguments raised by Appellant related to the initial
stop, detention, canine sniff and vehicle search.
Scioto App. Nos. 16CA3745 and 16CA3760 27
MIRANDA WARNINGS
{¶41} In addition to challenging the stop, detention, canine sniff and
search of her vehicle, Appellant argues that she was not provided with
Miranda warnings and that the statements she made to law enforcement
during the course of the traffic stop should have been suppressed. Based
upon the following, we agree with Appellant that statements made to
Trooper Lewis after the drugs were located but before she arrived at the
patrol post were properly suppressed as obtained in violation of her
constitutional rights. However, as will be discussed below, we reject the
argument as it relates to other statements Appellant made during different
timeframes of her traffic stop and subsequent arrest.
{¶42} “In Miranda, * * * the United States Supreme Court held that
statements made during custodial interrogation, i.e. ‘questioning initiated by
law enforcement officers after a person has been taken into custody or
otherwise deprived of his freedom of action in any significant way,’ are
admissible only upon a showing that law enforcement officials followed
certain procedural safeguards to secure the accused's Fifth Amendment
privilege against self incrimination.” (Emphasis sic.) State v. Phillips, 4th
Dist. Highland No. 11CA11, 2011-Ohio-6773, ¶ 9; quoting Miranda v.
Arizona, 384 U.S. 436, 444, 986 S. Ct. 1602 (1966). Those safeguards
Scioto App. Nos. 16CA3745 and 16CA3760 28
include informing the defendant that “he has the right to remain silent, that
anything he says can be used against him in a court of law, that he has the
right to the presence of an attorney, and that if he cannot afford an attorney
one will be appointed for him prior to any questioning if he so desires.”
Miranda.
{¶43} Police are not required to administer Miranda warnings to
everyone they question. State v. Fouts, 4th Dist. Washington No. 15CA25,
2016-Ohio-1104, ¶ 19; citing Oregon v. Mathiason, 429 U.S. 492, 495, 97
S. Ct. 711 (1977). “[T]he requirement that police officers administer
Miranda warnings applies only when a suspect is subjected to both custody
and interrogation.” State v. Dunn, 131 Ohio St. 3d 325, 2012-Ohio-1008, 964
N.E.2d 1037, ¶ 24. In other words, “Miranda rights only attach when both
custody and interrogation coincide.” State v. Tellington, 9th Dist. Summit
No. 22187, 2005-Ohio-470, ¶ 8; citing State v. Wiles, 59 Ohio St. 3d 71, 83,
571 N.E.2d 97 (1991). “Moreover, ‘an individual has a right to counsel only
when he is in custodial interrogation, as a suspect, or once adversary
proceedings have commenced and he becomes a defendant. See, e.g., Davis
v. United States, 512 U.S. 452, 456–457, 114 S. Ct. 2350 (1994). The person
can only invoke that right during those times.’ ” State v. Guysinger, 4th Dist.
Scioto App. Nos. 16CA3745 and 16CA3760 29
Ross No. 11CA3251, 2012-Ohio-4169, ¶ 12; quoting State v. Adams, 11th
Dist. Trumbull No. 2003–T–0064, 2005-Ohio-348, ¶ 43.
{¶44} “[A]n individual has been placed into custody [if] * * *, under
the totality of the circumstances, a ‘reasonable person would have believed
that he was not free to leave.’ ” State v. Gumm, 73 Ohio St. 3d 413, 429, 653
N.E.2d 253 (1995); quoting U.S. v. Mendenhall, 446 U.S. 544, 554, 100
S. Ct. 1870 (1980). “The ‘term “interrogation” under Miranda refers not
only to express questioning, but also to any words or actions on the part of
the police (other than those normally attendant to arrest and custody) that the
police should know are reasonably likely to elicit an incriminating response
from the suspect.’ ” State v. Williams, 4th Dist. Scioto No. 10CA3381, 2012-
Ohio-6083 ¶ 18; quoting Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct.
1682 (1980).
{¶45} The determination of whether a suspect is in custody presents a
mixed question of fact and law. In re R.H., 2nd Dist. Montgomery No.
22352, 2008-Ohio-773, ¶ 15. “We defer to the court's findings of fact, when
articulated, but evaluate de novo whether on those facts, [the suspect] was in
custody.” Id. A motorist temporarily detained as the subject of an ordinary
traffic stop is not “in custody” for purposes of Miranda. State v. Farris, 109
Ohio St. 3d 519, 2006-Ohio-3255, 849 N.E.2d 985, ¶ 13; citing Berkemer v.
Scioto App. Nos. 16CA3745 and 16CA3760 30
McCarty, 468 U.S. 420, 440, 104 S. Ct. 3138 (1984). However, if the
motorist “thereafter is subjected to treatment that renders him ‘in custody’
for practical purposes, he will be entitled to the full panoply of protections
prescribed by Miranda.” Id.; quoting Berkemer at 440. “The ‘only relevant
inquiry’ in determining whether a person is in custody is ‘how a reasonable
man in the suspect's position would have understood his situation.’ ” Id. at
¶ 14; quoting Berkemer at 442.
{¶46} We conclude that the first category of statements made by
Appellant, which were made during her initial detention stemming from her
lawful traffic stop, were not statements made while in custody. As such, her
statements that she was simply sightseeing, heading to Kentucky to see
cousins, going to Cincinnati to shop and then returning to Michigan the same
day were admissible despite the fact that they were made without the benefit
of Miranda warnings. Because Appellant was not in custody at the time
these statements were made, there was no trigger for providing Miranda
warnings and thus, there was no error with respect to their admission into
evidence.
{¶47} The next category of statements made by Appellant consists of
statements made voluntarily by Appellant to her passenger while they were
both in the police cruiser and while the troopers were searching the vehicle.
Scioto App. Nos. 16CA3745 and 16CA3760 31
We note that "[a] suspect who volunteers information without being asked
any questions is not subject to a custodial interrogation and is not entitled to
Miranda warnings." State v. Williams, 4th Dist. Scioto No. 10CA3381,
2012-Ohio-6083, ¶ 19; citing State v. McGuire, 80 Ohio St. 3d 390, 401, 686
N.E.2d 1112 (1997). In other words, “Miranda does not affect the
admissibility of ‘[v]olunteered statements of any kind.’ ” Id.; citing Miranda
at 478. When a defendant initiates communication, “nothing in the Fifth and
Fourteenth Amendments would prohibit the police from merely listening to
his voluntary, volunteered statements and using them against him at the
trial.” Edwards v. Arizona, 451 U.S. 477, 485, 101 S.Ct. 1880(1981).
Because the statements Appellant made during the search of her vehicle,
which were recorded on the cruiser cam, were voluntary and not in response
to any type of police questioning or interrogation, we find no error
associated with their admission into evidence at trial.
{¶48} The third category of statements involves the statements made
by Appellant to Trooper Lewis after the search of the vehicle yielded
narcotics but before Appellant was Mirandized. These statements were the
subject of the second suppression hearing and were properly ordered
suppressed by the trial court. We affirm the trial court's decision with
respect to the suppression of these statements.
Scioto App. Nos. 16CA3745 and 16CA3760 32
{¶49} The fourth category of statements consists of statements made
by Appellant at the patrol post after she was Mirandized by Trooper Kuehne.
To use a statement made by the accused during a custodial interrogation, the
prosecution must show: “(1) the accused, prior to any interrogation, was
given the Miranda warnings; (2) at the receipt of the warnings, or thereafter,
the accused made ‘an express statement’ that he desired to waive his
Miranda constitutional rights; (3) the accused effected a voluntary, knowing,
and intelligent waiver of those rights.” State v. Edwards, 49 Ohio St. 2d 31,
38, 358 N.E.2d 1051 (1976) (overruled on other grounds), citing Miranda.
However, contrary to the second prong in Edwards, the Supreme Court
recently held that the prosecution “does not need to show that a waiver of
Miranda rights was express. An ‘implicit waiver’ of the ‘right to remain
silent’ is sufficient to admit a suspect's statement into evidence.” Berghuis v.
Thompkins, 560 U.S. 370, 130 S. Ct. 2250, 2261 (2010) (Citation omitted).
“Where the prosecution shows that a Miranda warning was given and that it
was understood by the accused, an accused's uncoerced statement establishes
an implied waiver of the right to remain silent.” Id. at 2262. That is because
“the law can presume that an individual who, with a full understanding of
his or her rights, acts in a manner inconsistent with their exercise has made a
deliberate choice to relinquish the protection those rights afford.” Id.
Scioto App. Nos. 16CA3745 and 16CA3760 33
{¶50} Appellant contends that because the questions asked of her at
the patrol post were a continuation of a line of questioning that began in the
cruiser with Trooper Lewis, statements which were properly suppressed, that
any statements given post-Miranda should also be suppressed as fruit of the
poisonous tree. We disagree. The statements at issue involve Appellant's
admissions to law enforcement during questioning at the patrol post that she
was bringing the drugs to "a fein named Rock" who lived on High Street in
Portsmouth, Ohio, in exchange for $13,000.
{¶51} The record before us indicates that Appellant testified at the
first suppression hearing that she was never, at any point, provided with
Miranda warnings. However, the record further reflects that at the second
suppression hearing, Trooper Kuehne testified that he did not question
Appellant until he took her to the patrol post, and that he only questioned her
after he Mirandized her. As already discussed, the trial court ordered that
statements made by Appellant in response to questioning by Trooper Lewis
after the search, but prior to arriving at the patrol post, be suppressed.
However, the trial court found, at the second suppression hearing, that a
Miranda warning was provided by Trooper Kuehne at the patrol post and
that statements made thereafter were admissible.
Scioto App. Nos. 16CA3745 and 16CA3760 34
{¶52} In State v. Osman, 4th Dist. Athens No. 09CA36, 2011-Ohio-
4626, this Court rejected an argument that statements given before the police
provided Miranda warnings tainted subsequent statements made after
receiving Miranda warnings. In reaching our conclusion, we relied upon the
reasoning of the United States Supreme Court in Oregon v. Elstad, 470 U.S.
298, 105 S. Ct. 1285 (1985), which considered the question of whether a
defendant could waive his Miranda rights if the defendant had previously
responded to uncoercive questions prior to receiving Miranda warnings. In
Osman, we quoted Oregan v. Elstad as follows:
"* * * the dictates of Miranda and the goals of the Fifth
Amendment proscription against use of compelled testimony
are fully satisfied in the circumstances of this case by barring
use of the unwarned statement in the case in chief. No further
purpose is served by imputing 'taint' to subsequent statements
obtained pursuant to a voluntary and knowing Miranda waiver.
We hold today that a suspect who has once responded to
unwarned yet uncoercive questioning is not thereby disabled
from waiving his rights and confessing after he has been given
the requisite Miranda warnings." Id.
{¶53} Despite Appellant's testimony at the first suppression hearing
that she was never warned, and her re-argument at the second suppression
that she was never warned, the trial court found otherwise based upon the
testimony of Trooper Kuehne. We defer to the trial court's factual findings
on this issue. Further, based upon the foregoing case law, we cannot
conclude that the trial court erred in refusing to suppress Appellant's
Scioto App. Nos. 16CA3745 and 16CA3760 35
statements made at the patrol post, which were made, as found by the trial
court, after Trooper Kuehne had provided Appellant with a Miranda
warning.
{¶54} Finally, Appellant argues that she was erroneously advised at
both suppression hearings of her rights under the Fifth Amendment and
waiver thereof by testifying, which prejudiced her in that she was prevented
from testifying that she was never Mirandized at the suppression stage. The
record reveals the following testimony during the first suppression hearing at
the point in which Appellant was called to testify:
"Mr. Tieman [the prosecutor]: Your Honor, I think it may be
necessary to advise her of her Fifth Amendment Rights
considering this case may go to trial and anything she says
could be used against her.
The Court: Ma'am do you understand that?
Defendant: Yes, sir."
Appellant thereafter went on to testify at the first suppression regarding her
version of the traffic stop as well as her claim that she never received
Miranda warnings, nor signed a waiver of her Miranda rights. On cross-
examination, when asked whether she was, in fact, transporting drugs into
Scioto County, Appellant pleaded the Fifth Amendment. Thus, the record
reflects Appellant was permitted to testify that she was not provided with
Miranda warnings.
Scioto App. Nos. 16CA3745 and 16CA3760 36
{¶55} The record further reveals the following testimony at the
second suppression hearing at the point in which Appellant was called to
testify:
"Mr. Tieman: Your Honor, could we clarify for the record
though, that once she takes the stand she's waived her Fifth
Amendment Right to remain silent. [sic]
The Court: Absolutely.
Mr. Tieman: All right.
Mr. Loesch [Appellant's counsel]: You understand that? But I
have to question you about whether or not you received
Miranda rights.
The Court: You can't choose what you testify to, Mr. Loesch.
Once you take the stand everything's open.
Mr. Loesch: After a discussion with my client, she says that
she'd elect not to take the stand, so I'd concur."
Thus, it appears from the foregoing that although the warning did prevent
Appellant from testifying regarding the fact that she did not receive Miranda
warnings at the second suppression hearing, she had already testified on that
issue at the first hearing. As such, we find any error to be harmless as the
testimony Appellant alleges she was prevented from providing had already
been given and would have merely been duplicative.
{¶56} Further, with respect to whether such a warning should have
been given at all, we note that "when a defendant testifies at a pretrial
Scioto App. Nos. 16CA3745 and 16CA3760 37
suppression hearing, those statements cannot be used to prove the
defendant's guilt." State v. Riddle, 12th Dist. Brown No. CA97-05-012, 1998
WL 161384, *3 (Apr. 6, 1998); citing Simmons v. United States, 390 U.S.
377, 88 S. Ct. 967 (1968). As explained in Riddle, "the reasoning is a
defendant should not have to risk exercising his constitutional rights by
testifying in a suppression hearing at the risk of incriminating himself." Id;
citing Simmons at 394. However, the Riddle court ultimately held, relying
on the reasoning of other jurisdictions, that "impeachment of a defendant
with sworn testimony from a suppression hearing is constitutionally
permissible." Id. at *4; citing People v. Douglas, 66 Cal. App. 3d 998, 1005,
136 Cal. Rptr. 358, 36 (1977); Gray v. State, 43 Md.App. 238, 245, 403 A.2d
853 (1979); People v. Sturgis, 58 Ill. 2d 211, 216, 317 N.E.2d 545 (1974),
certiori denied (1975), 420 U.S. 936, 95 S. Ct. 1144. In reaching its decision,
the Riddle court reasoned as follows:
"Appellant was not under any physical coercion or the legal
obligation to testify[,]" but rather "with the advice of counsel,
chose to testify at the pretrial suppression hearing and '[h]aving
voluntarily taken the stand, [appellant] was under an obligation
to speak truthfully and accurately * * *.' " Riddle at *4.
{¶57} Considering the foregoing, we cannot conclude that the
advisement given to Appellant upon taking the witness stand at the
suppression hearings was completely erroneous. Although statements made
Scioto App. Nos. 16CA3745 and 16CA3760 38
by Appellant during the hearing could not be used against her at a later trial
to prove her guilt, they could be used to impeach her. As such, we conclude
the advisement was incomplete, but not inaccurate.
ASSIGNMENT OF ERROR II
{¶58} In her second assignment of error, Appellant contends that her
due process rights were violated and that her indictment and convictions did
not set forth proper elements of the crimes charged or valid statutory
provisions for the crimes, which Appellant further contends requires reversal
of her convictions. Appellant again sets forth multiple issues presented for
review, which are as follows: 1) whether the indictment for trafficking and
possession of hydrocodone was defective; 2) whether the indictment was
void on the charges involving hydrocodone as setting forth violation of
erroneous schedule and statutory provisions; 3) whether the erroneous
verdict forms on the hydrocodone charges resulted in unlawful convictions
on those charges; 4) whether the erroneous charges resulted in substantial
prejudice to the defendant and resulted in convictions on four charges and
sentences on two when the hydrocodone charges should have been included
with the oxycodone charges; 5) whether the failure of defense counsel to
object to the faulty and void indictment and verdict forms constitutes plain
error; and 5) whether the failure of defense counsel to object to the faulty
Scioto App. Nos. 16CA3745 and 16CA3760 39
and void indictment and verdict forms, along with the other failures set forth
herein constitute ineffective assistance of counsel.
{¶59} Appellant briefly mentions two other alleged errors under this
assignment of error as follows:
"Additional violations of Appellant's due process rights include
but are not limited to the denial of her requests for a
continuance of the second suppression hearing and the trial due
to her husband's stroke and the denial of her motion for an
acquittal pursuant to Crim.R. 29(A)."
Pursuant to App.R. 12(A)(2), this Court may disregard an assignment of
error presented for review if the party raising it fails to identify in the record
the error on which the assignment of error is based or fails to argue the
assignment separately in the brief, as required under App.R. 16(A). See
Wright v. Suzuki Motor Corp., 4th Dist. Meigs Nos. 03CA2, 03CA3, and
03CA4, 2005-Ohio-3494, FN. 9. Appellant has failed to separately argue
these arguments in accordance with App.R. 16. Though the appellate court
has the option to address two or more assignments of error at once, the
parties do not. Grimes v. Grimes, 4th Dist. Washington No. 10CA23, 975
N.E.2d 946, FN. 4. Because these alleged errors are simply mentioned and
not even fully argued or developed, and there is no explanation as to how
Appellant was prejudiced, we decline to address these extraneous arguments.
Scioto App. Nos. 16CA3745 and 16CA3760 40
{¶60} On appeal, the State concedes that hydrocodone is not a
Schedule III drug, but rather is a Schedule II drug. The State contends that
only the schedule of the drug was misidentified and that the statutory
sections included in the indictment were correct. The State further argues
that because the error inured to the benefit of Appellant, she was not
prejudiced as a result. A review of the indictment in relation to the pertinent
statutes is necessary.3
{¶61} A review of the record indicates that Appellant was indicted
for one count of trafficking in drugs and one count of possession of drugs,
counts three and four respectively, on April 20, 2015. The indictment
specified that the drug involved in both of these counts was hydrocodone,
and identified the hydrocodone as a Schedule III drug in an amount equal to
or exceeding five times the bulk amount but less than fifty times the bulk
amount. Count three, the trafficking charge, alleged a violation of R.C.
2925.03(A)(2) and (C)(2)(d), a third degree felony. Count four, the
possession charge, alleged a violation of R.C. 2925.11(A) and (C)(2)(c), a
third degree felony.
{¶62} However, because hydrocodone is a Schedule II drug, rather
than a Schedule III drug, Appellant should have been indicted, under count
3
There have been multiple revisions to the pertinent statutes since Appellant committed the offenses at
issue. Thus, we apply the versions of the statute in effect at the time the offenses herein were committed.
Scioto App. Nos. 16CA3745 and 16CA3760 41
three trafficking in drugs, for a violation of R.C. 2925.03(A)(2) and
(C)(1)(d), a second degree felony, rather than R.C. 2925.03(A)(2) and
(C)(2)(d), a third degree felony. Likewise, under count four possession of
drugs, Appellant should have been indicted for a violation of R.C.
2925.11(A) and (C)(1)(c), a second degree felony, rather than R.C.
2925.11(A) and (C)(2)(c), a third degree felony. Thus, an error regarding
the schedule of the drug resulted in an error in the identification of the
proper subsection of the statute which determines the felony level of the
offense.
{¶63} “ ‘Article I, Section 10 of the Ohio Constitution provides that
“no person shall be held to answer for a capital, or otherwise infamous,
crime, unless on presentment or indictment of a grand jury.” Thus, the Ohio
Constitution guarantees an accused that the essential facts constituting the
offense for which he is tried will be found in the indictment by the grand
jury.’ ” State v. Jackson, 134 Ohio St. 3d 184, 2012-Ohio-5561, 980 N.E.2d
1032, ¶ 12; quoting State v. Pepka, 125 Ohio St. 3d 124, 2010-Ohio-1045,
926 N.E.2d 611, ¶ 14; citing Harris v. State, 125 Ohio St. 257, 264, 181
N.E. 104 (1932). As noted in Jackson at ¶ 12, “Crim.R. 7(B) provides, ‘The
statement [specifying the offense in an indictment] may be made in ordinary
and concise language without technical averments or allegations not
Scioto App. Nos. 16CA3745 and 16CA3760 42
essential to be proved. The statement may be in the words of the applicable
section of the statute, provided the words of that statute charge an offense, or
in words sufficient to give the defendant notice of all the elements of the
offense with which the defendant is charged.’ ”
{¶64} “ ‘An indictment meets constitutional requirements if it “first,
contains the elements of the offense charged and fairly informs a defendant
of the charge against which he must defend, and, second, enables him to
plead an acquittal or conviction in bar of future prosecutions for the same
offense.” ’ ” Jackson at ¶ 13; quoting State v. Childs, 88 Ohio St. 3d 558,
565, 728 N.E.2d 379 (2000); in turn quoting Hamling v. United States, 418
U.S. 87, 117, 94 S. Ct. 2887 (1974). “ ‘Generally, the requirements of an
indictment may be met by reciting the language of the criminal statute.’ ”
Jackson at ¶ 14; quoting State v. Childs, 88 Ohio St. 3d 194, 199, 724 N.E.2d
781 (2000); citing State v. Murphy, 65 Ohio St. 3d 554, 583, 605 N.E.2d 884
(1992). However, “if the indictment does not name the essential elements of
the criminal offense charged, the indictment is insufficient to charge the
defendant with that offense.” Jackson at ¶ 14; citing State v. Jester, 32 Ohio
St.3d 147, 149, 512 N.E.2d 962 (1987).
{¶65} In State v. Horner, 126 Ohio St. 3d 466, 2010-Ohio-3830, 935
N.E.2d 26, ¶ 10, the Supreme Court of Ohio noted that “[t]he purpose of a
Scioto App. Nos. 16CA3745 and 16CA3760 43
grand jury indictment has always been to give notice to the accused: ‘[A]
criminal offense must be charged with reasonable certainty in the indictment
so as to apprise the defendant of that which he may expect to meet and be
required to answer; so that the court and jury may know what they are to try,
and the court may determine without unreasonable difficulty what evidence
is admissible.’ ” Quoting Horton v. State, 85 Ohio St. 13, 19, 96 N.E. 797
(1911). Further, it should be noted that the Court held in Horner that
“failure to timely object to a defect in an indictment constitutes waiver of the
error.” Horner at ¶ 46; citing Crim.R. 12(C)(2) (objections to defect in
indictment must be raised before trial.). Thus, “[a]ny claim of error in the
indictment in such a case is limited to a plain-error review on appeal.” Id.;
citing State v. Frazier, 73 Ohio St. 3d 323, 652 N.E.2d 1000; Crim.R. 52(B).
{¶66} Appellate courts take notice of plain error with the utmost of
caution, under exceptional circumstances and only to prevent a manifest
miscarriage of justice. State v. Gardner, 118 Ohio St. 3d 420, 2008-Ohio-
2787, 889 N.E.2d 995, at ¶ 78; State v. Patterson, 4th Dist. Washington No.
05CA16, 2006-Ohio-1902, ¶ 13. Plain error should only be noticed if the
error seriously affects the fairness, integrity or public reputation of judicial
proceedings. See State v. Bundy, 2012-Ohio-3934, 974 N.E.2d 139, ¶ 66.
The Supreme Court of Ohio recently stated that appellate courts should be
Scioto App. Nos. 16CA3745 and 16CA3760 44
conservative in their application of plain-error review, reserving notice of
plain error for situations that involve more than merely theoretical prejudice
to substantial rights. State v. Steele, 138 Ohio St. 3d 1, 2013-Ohio-2470, 3
N.E.3d 135, ¶ 30.
{¶67} Further, with regard to Appellant’s argument that she received
ineffective assistance of counsel as a result of her counsel’s failure to object
to the error in the indictment, we note that criminal defendants have a right
to counsel, including a right to the effective assistance from counsel.
McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441 (1970), fn. 14;
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
Scioto App. Nos. 16CA3745 and 16CA3760 45
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.
{¶68} “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.
13CA33 & 13CA36, 2014–Ohio–4966, ¶ 23; quoting Strickland at 689.
“Thus, ‘the defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered sound trial
strategy.’ ” Id. “A properly licensed attorney is presumed to execute his
duties in an ethical and competent manner.” State v. Taylor, 4th Dist.
Washington No. 07CA11, 2008–Ohio–482, ¶ 10; citing State v. Smith, 17
Ohio St. 3d 98, 100, 477 N.E.2d 1128 (1985). “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.” Walters at ¶ 23; citing State v. Gondor, 112 Ohio
St.3d 377, 2006–Ohio–6679, 860 N.E.2d 77, ¶ 62 and State v. Hamblin, 37
Ohio St. 3d 153, 524 N.E.2d 476 (1988).
Scioto App. Nos. 16CA3745 and 16CA3760 46
{¶69} “To establish prejudice, a defendant must demonstrate that a
reasonable probability exists that but for counsel's errors, the result of the
trial would have been different.” Walters at ¶ 24; citing State v. White, 82
Ohio St. 3d 16, 23, 693 N.E.2d 772 (1998) and State v. Bradley, 42 Ohio
St.3d 136, 538 N.E.2d 373 (1989), at paragraph three of the syllabus.
“Furthermore, courts may not simply assume the existence of prejudice, but
must require that prejudice be affirmatively demonstrated.” Walters at ¶ 24.
“There are countless ways to provide effective assistance in any given case;
therefore, judicial scrutiny of counsel's performance must be highly
deferential.” Id. (Citations omitted).
{¶70} The indictment at issue herein charged Appellant with
possession and trafficking of hydrocodone in an amount exceeding five
times but less than fifty times the bulk amount. The indictment listed the
proper initial revised code sections of R.C. 2925.03(A)(2), trafficking, and
R.C. 2925.03 (A), possession. For instance, R.C. 2925.03(A)(2) provides
that “[n]o person shall knowingly do any of the following: * * * [p]repare
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
Scioto App. Nos. 16CA3745 and 16CA3760 47
another person.” R.C. 2925.11(A) provides that “[n]o person shall
knowingly obtain, possess, or use a controlled substance or a controlled
substance analog.”
{¶71} Unfortunately, because hydrocodone was changed from a
Schedule III to a Schedule II drug prior to the commission of Appellant’s
offenses, the State inadvertently indicted Appellant under another subsection
of each statute. For instance, the determination of the schedule of the drug,
as well as the amount of the drug involved determines the felony level of the
offense. Nevertheless, we conclude the language of the indictment put
Appellant on notice of the type of drug and the amount of drugs she was
accused of possessing and trafficking. In State v. Judy, 4th Dist. Ross No.
08CA3013, 2008-Ohio-5551, this Court rejected an argument that the State
failed to prove all the elements of the offense because it failed to prove that
the substance allegedly possessed by the defendant was a controlled
substance listed under Schedule II of the R.C. 3719.41. In reaching our
decision, we relied upon the reasoning set forth in State v. O’Connor, 12th
Dist. Fayette No. CA2007-01-005, 2008-Ohio-2415, ¶ 37 (“the state was not
required to prove that crack cocaine, cocaine, or marijuana are controlled
substances in Schedules I, II or R.C. 3719.41 because, by law, they are.”).
Applying the reasoning of O’Connor, we determined in Judy that “the State
Scioto App. Nos. 16CA3745 and 16CA3760 48
presented sufficient evidence, by virtue of the BCI & I laboratory report, that
the substance that formed the basis of the charge against Appellant was
crack cocaine, which is, as a matter of law, a Schedule II controlled
substance.” Judy at ¶ 26.
{¶72} Recognizing that the facts presently before us are different than
those in Judy, in that the only issue in Judy involved proving the elements of
the offense at trial rather than charging all of the elements of the offense in
the indictment, we still find the reasoning contained therein provides
guidance on this issue. Because the schedule of a particular drug is, by law,
what it is, and need not be expressly proven by the State, we find that
although an error in the indictment related to the identification of the proper
schedule of a drug is, in fact, an error, it is not an error that invalidates an
otherwise valid indictment.
{¶73} Here, the indictment charged Appellant with possession of a
controlled substance, hydrocodone, exceeding five times but less than fifty
times the bulk amount. The State was not required to allege or prove the
schedule of drug that hydrocodone is an element of the offense. The State
presented expert testimony that the drugs recovered from Appellant’s
vehicle were positively identified as hydrocodone and that the amount tested
was consistent with the amount alleged in the indictment. Further, verdict
Scioto App. Nos. 16CA3745 and 16CA3760 49
forms indicate the jury found Appellant guilty of possession and trafficking
of hydrocodone in the bulk amount as specified in the indictment.
Accordingly, we cannot conclude Appellant was prejudiced by the fact that
the indictment contained an incorrect subsection of the possession and
trafficking statutes, an error which stemmed from an error in the
identification of the correct drug schedule of hydrocodone.
{¶74} In reaching this decision, we are mindful of the Supreme Court
of Ohio’s recent decision in Jackson, supra, at syllabus, which held that
“[f]or the purpose of identifying the drug involved in a drug-trafficking
offense under R.C. 2925.03(A), an indictment is sufficient if it names the
schedule in which the drug appears.” Jackson involved a situation where the
indictment failed to name the specific drug involved, but listed the schedule
of the drug. Id. at ¶ 2. However, in the present case, the specific name of the
drug involved was listed in the indictment and thus Jackson is not directly
applicable. Further, we do not construe the holding in Jackson to require the
schedule of the drug be included in the indictment when the specific name of
the drug is included. To this end, we believe Jackson is not inconsistent
with our holding in Judy as to the idea that the schedule of a particular drug
is, by law, what it is, without resort to the State having to affirmatively
allege or prove such element.
Scioto App. Nos. 16CA3745 and 16CA3760 50
{¶75} Further, because the error in the present case did, in fact, inure
to the benefit of Appellant in that she ended up being charged, convicted and
sentenced for third degree felony offenses, rather than second degree felony
offenses, Appellant has not established that she was prejudiced as a result of
this error in the indictment. As such, we cannot conclude that the error rises
to the level of plain error such that would require reversal of Appellant’s
convictions, nor can we conclude that her counsel’s failure to object to the
error in the indictment constitutes ineffective assistance of counsel.
Specifically, with regard to Appellant’s ineffective assistance of counsel
argument, we indulge a strong presumption that counsel’s decision not to
bring the error to the court’s attention was sound trial strategy as the
Appellant actually benefitted from the error in that it was a lesser felony
with a lesser penalty.
{¶76} Finally, we reject the allied offenses argument raised under this
assignment of error. Appellant essentially contends that because oxycodone
and hydrocodone are both Schedule II drugs with a combined amount of less
than fifty times the bulk amount, her convictions for possession and
trafficking of oxycodone and hydrocodone should have merged for purposes
of sentencing. Appellant argues she was thus prejudiced by the prosecution
of the hydrocodone offenses as Schedule III as opposed to Schedule II drugs.
Scioto App. Nos. 16CA3745 and 16CA3760 51
{¶77} The Double Jeopardy Clause of the Fifth Amendment to the
United States Constitution provides that no person shall “be subject for the
same offence to be twice put in jeopardy of life or limb,” and this protection
applies to Ohio citizens through the Fourteenth Amendment and is
additionally guaranteed by Article I, Section 10 of the Ohio Constitution.
This constitutional protection prohibits multiple punishments in a single trial
for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct.
2072, (1969), overruled on other grounds; Alabama v. Smith, 490 U.S. 794,
109 S. Ct. 2201 (1989).
{¶78} The General Assembly enacted R.C. 2941.25 to specify when
multiple punishments can be imposed:
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the
indictment or information may contain counts for all such
offenses, but the defendant may be convicted of only one.
(B) Where the defendant's conduct constitutes two or more
offenses of dissimilar import, or where his conduct results
in two or more offenses of the same or similar kind
committed separately or with a separate animus as to each,
the indictment or information may contain counts for all
such offenses, and the defendant may be convicted of all of
them.
Merger is a sentencing question, and the defendant bears the burden of
establishing his entitlement to the protection of R.C. 2941.25. State v.
Washington, 137 Ohio St. 3d 427, 2013-Ohio-4982, 999 N.E.2d 661, ¶ 18.
Scioto App. Nos. 16CA3745 and 16CA3760 52
{¶79} Under current Ohio law courts can only impose multiple
punishments in a single trial for a defendant's conduct under two situations:
1) where the charged crimes are not allied offenses, i.e. it is not possible to
commit multiple crimes with the same action, State v. Johnson, 128 Ohio
St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061; and 2) the crimes are allied
offenses but the defendant's actions have dissimilar import, i.e. the crimes
were committed separately, or with a separate animus, or the resulting harm
for each offense is separate and identifiable. State v. Ruff, 143 Ohio St. 3d
114, 2015-Ohio-995, 34 N.E.3d 892, paragraph one of the syllabus.
{¶80} Initially, we note that Appellant failed to raise an allied
offenses argument at the trial court level and, as a result, this argument is
also subject to a plain error analysis. We next note that we failed to find
plain error or ineffective assistance of counsel regarding the error in the
indictment that Appellant argues led to the imposition of multiple sentences
for what she argues were allied offenses of similar import. Finally, and
contrary to Appellant’s argument, this Court has previously noted that the
Supreme Court of Ohio “has held that the simultaneous possession of
different types of controlled substances can constitute multiple offenses
under R.C. 2925.11.” State v. Westbrook, 4th Dist. Scioto No. 09CA3277,
2010-Ohio-2692, ¶ 42; citing State v. Delfino, 22 Ohio St. 3d 270, 490
Scioto App. Nos. 16CA3745 and 16CA3760 53
N.E.2d 884, at syllabus (1980). In Westbrook we reasoned that “[t]he
legislature clearly intended that possession of different drug groups
constitutes different offenses.” Id.; citing Delfino at 274. Likewise, in State
v. Pitts, 4th Dist. Scioto No. 99CA2675, 2000 WL 1678020, *11, we
rejected an argument that simultaneously trafficking in two Schedule IV
drugs constitutes only one offense. Consistent with our prior reasoning in
both Westbrook and Pitt, we reject Appellant’s argument that convictions for
possession and trafficking of oxycodone and hydrocodone should merge
simply because both are Schedule II drugs.
{¶81} In light of the foregoing, we find no merit to any of the
arguments raised under Appellant’s second assignment of error.
Accordingly, it is overruled.
ASSIGNMENT OF ERROR III
{¶82} In her third assignment of error, Appellant contends that the
trial court erred in sentencing her. She raises two issues under this
assignment of error as follows: 1) whether the trial court abused its
discretion in imposing a harsh sentence upon her when she has no criminal
record; and 2) whether a court may impose a harsher sentence for reasons
already covered by the legislature in setting forth the level(s) of the offenses
in the statute charged. The State responds by contending that the trial court
Scioto App. Nos. 16CA3745 and 16CA3760 54
made the necessary findings to support the consecutive sentences imposed
and that the record supports those findings.
{¶83} Appellant relies on State v. Kalish, 120 Ohio St. 3d 23, 2008–
Ohio–4912, 896 N.E.2d 124, to support her argument that the trial court
abused its discretion by imposing harsh and consecutive sentences on her, as
she had no prior criminal history of criminal conduct, worked several jobs to
take care of her elderly father and sick husband, and is an “upstanding
citizen.” However, when reviewing felony sentences, we apply the standard
of review set forth in R.C. 2953.08(G)(2). State v. Brewer, 2014–Ohio–
1903, 11 N.E.3d 317, ¶ 33 (4th Dist.) (“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 ‘[t]he appellate court's
standard of review is not whether the sentencing court abused its
discretion”); see also State v. Graham, 4th Dist. Highland No. 13CA11,
2014–Ohio–3149, ¶ 31. R.C. 2953.08(G)(2) specifies that an appellate court
may increase, reduce, modify, or vacate and remand a challenged felony
sentence if the court clearly and convincingly finds either that “the record
does not support the sentencing court's findings” under the specified
statutory provisions or “the sentence is otherwise contrary to law.”
Scioto App. Nos. 16CA3745 and 16CA3760 55
{¶84} Here, it appears that sentences Appellant received on counts
one and three were within the statutory range for each offense, thus it cannot
be said that the length of either sentence is contrary to law. Further, with
respect to the trial court’s decision to order the sentences be served
consecutively, under the tripartite procedure set forth in R.C. 2929.14(C)(4)
for imposing consecutive sentences, the trial court had to find that (1)
consecutive sentences are necessary to protect the public from future crime
or to punish the offender; (2) consecutive sentences are not disproportionate
to the seriousness of the offender's conduct and to the danger the offender
poses to the public; and (3) that one of three circumstances specified in the
statute applies. See generally State v. Baker, 4th Dist. Athens No. 13CA18,
2014–Ohio–1967, ¶ 35–36. The trial court is required to make these
findings at the sentencing hearing and to incorporate its findings in its
sentencing entry. State v. Bonnell, 140 Ohio St. 3d 209, 2014–Ohio–3177, 16
N.E.3d 659, syllabus. “The trial court need not use talismanic words to
comply with R.C. 2929.14(C)(4), but it must be clear from the record that
the trial court actually made the required findings.” State v. Campbell, 4th
Dist. Adams No. 13CA969, 2014–Ohio–3860, at ¶ 25.
{¶85} Although the trial court must make the required findings before
imposing consecutive sentences, the court is under no obligation to make
Scioto App. Nos. 16CA3745 and 16CA3760 56
specific findings under the various factors in these statutes. See State v.
Kulchar, 4th Dist. Athens No. 10CA6, 2015–Ohio–3703, ¶ 47. Nor did the
trial court have any obligation under R.C. 2929.14(C)(4) to state reasons to
support its findings to impose consecutive sentences. Bonnell at syllabus
(“In order to impose consecutive terms of imprisonment, a trial court is
required to make the findings mandated by R.C. 2929.14(C)(4) at the
sentencing hearing and incorporate its findings into its sentencing entry, but
it has no obligation to state reasons to support its findings”).
{¶86} We reject Appellant’s assertion that consecutive sentences
were unwarranted. Here, the trial court’s judgment entry stated that it had
considered the principles and purposes of sentencing under R.C.
2929.11(A)(B) and (C), had considered and balanced the seriousness and
recidivism factors under R.C. 2929.12(B)-(E) and had found a presumption
in favor of prison. The trial court further expressly found 1) that consecutive
sentences were necessary to protect the public from future crime or to punish
the offender; 2) that consecutive sentences were not disproportionate to the
seriousness of the offender’s conduct and to the danger the offender poses to
the public; and 3) that at least two of the offenses were committed as part of
one or more courses of conduct, and the harm caused by two or more
multiple offenses so committed was so great or unusual that no single prison
Scioto App. Nos. 16CA3745 and 16CA3760 57
term for any of the offenses committed as part of any of the course of
conduct adequately reflects the seriousness of the offender’s conduct. Thus,
the required findings were made by the trial court before imposing
consecutive sentences and further, the trial court was under no obligation to
state its reasons for making its findings.
{¶87} In State v. Campbell, 4th Dist. Adams No. 15CA1012, 2016-
Ohio-415, ¶ 15, we noted that courts have upheld the imposition of
consecutive sentences that even included a life sentence as long as the trial
court makes the required findings. Citing State v. Peak, 8th Dist. Cuyahoga
No. 102850, 2015-Ohio-4702, ¶ 8-14 (affirming the imposition of two
consecutive life sentences with the possibility of parole after ten years on
each of the two counts for rape of a victim less than thirteen years old.). In
light of that reasoning, we held that Campbell had “failed to establish that
the trial court clearly and convincingly imposed a sentence that was either
not supported by the record or otherwise contrary to law.” Id. at ¶16. The
same reasoning applies herein and leads to the same result.
{¶88} Here, Appellant was found guilty of four felony drug offenses
that involved the possession and trafficking of approximately 500
oxycodone pills and approximately 200 hydrocodone pills into Scioto
County for distribution. The trial court considered all of the pertinent
Scioto App. Nos. 16CA3745 and 16CA3760 58
statutes, balanced all of the pertinent factors and made all of the necessary
findings before imposing consecutive sentences. As such, we cannot
conclude that the imposition of consecutive sentences was contrary to law or
unsupported by the record. Accordingly, Appellant’s third assignment of
error is overruled.
ASSIGNMENT OF ERROR IV
{¶89} In her fourth and final assignment of error, Appellant contends
that the trial court erred in refusing to grant a new trial based upon jury
misconduct. Appellant presents only one issue for review under this
assignment of error, which questions whether the conduct of the jurors and
the trial court require a new trial. The State concedes that juror misconduct
occurred when two jurors looked up the definition of the word “aggravated”
on their cell phones and read the definition to the other jurors. However, the
State argues that because each juror testified that he or she did not rely on
the information looked up on the cell phone in reaching their decision,
Appellant was not prejudiced.
{¶90} Crim.R. 33(A) provides: “A new trial may be granted on
motion of the defendant for any of the following causes affecting materially
his substantial rights: * * * (2) Misconduct of the jury * * *.” The decision
to grant or deny a motion for a new trial rests within the trial court's sound
Scioto App. Nos. 16CA3745 and 16CA3760 59
discretion. State v. Schiebel, 55 Ohio St. 3d 71, 564 N.E.2d 1140, paragraph
one of the syllabus (1990). Accordingly, we will not reverse the trial court's
denial of Appellant's motion absent an abuse of discretion. Id. An “abuse of
discretion” connotes that the court's attitude is “unreasonable, arbitrary, or
unconscionable.” Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219 450
N.E.2d 1140 (1983); Booth v. Booth, 44 Ohio St. 3d 142, 144 541 N.E.2d
1028 (1989).
{¶91} This Court has previously held that an inquiry into alleged
juror misconduct requires a two-pronged analysis. State v. Coleman, 4th
Dist. Scioto No. 05CA3037, 2006-Ohio-3200, ¶ 10; citing State v. Taylor,
73 Ohio App. 3d 827, 833, 598 N.E.2d 818 (4th Dist.1991), motion for leave
to appeal overruled (1991), 62 Ohio St. 3d 1453; see also State v. Marshall,
4th Dist. Lawrence No. 06CA23, 2007-Ohio-6298, ¶ 57. First the trial court
must determine whether misconduct occurred. Id. Then, if juror misconduct
is found, the court must determine whether the misconduct materially
affected the appellant's substantial rights. Id. “ ‘Trial courts are given broad
discretion when dealing with allegations of juror misconduct.’ ” Marshall at
¶ 57 (internal citations omitted). “Thus, its decision when faced with such
allegations must be reviewed for an abuse of discretion.” Id.
Scioto App. Nos. 16CA3745 and 16CA3760 60
{¶92} In State v. Fowler, 2nd Dist. Clark No. 2015-CA-95, 2016-
Ohio-5867, it was noted that “ ‘independent inquiry by a juror about the
evidence or the law violates the juror’s duty to limit his considerations to the
evidence, arguments, and law presented in open court, and such activity is
juror misconduct.’ ” Further, “if juror misconduct in the form of an
independent investigation is discovered, the trial court is ‘required to inquire
of that particular juror to determine whether he or she remained impartial
after the independent investigation.’ ” Fowler at ¶ 9. Additionally, as noted
in Fowler at ¶ 9, “ ‘[i]t is well-established that “the party complaining about
juror misconduct must establish prejudice.” ’ ” (noting that the requirement
of prejudice is reflected in Crim.R. 33(A)(2); citing State v. King, 6th Dist.
Lucas No. L-08-1126, 2010-Ohio-290, ¶ 23; quoting State v. Adams, 103
Ohio St. 3d 508, 2004-Ohio-5845, 817 N.E.2d 29, ¶ 42.
{¶93} In response to Appellant’s motion for a new trial based upon
alleged juror misconduct, the trial court conducted a hearing to determine if
misconduct had, in fact, occurred.4 The trial court controlled the hearing by
questioning each juror separately about their knowledge and involvement
regarding looking up definitions of words on the internet via the use of a cell
phone during deliberations. The trial court also permitted counsel to
4
Because not all jurors appeared for the first hearing a second hearing was also held to question the
remaining jurors.
Scioto App. Nos. 16CA3745 and 16CA3760 61
question each juror as well. The testimony obtained at the hearing
established that two jurors did look up the definition of the word
“aggravated” during deliberations and read the definition to the other jurors.
However, the testimony also indicated that the jury sent a question to the
court asking for that definition as well. Several jurors testified that the
definition provided by the court was the same as the one provided on the
internet. Some jurors testified that in the response to their request for a
definition the court also stated that the definition did not matter for their
purposes. All jurors unanimously testified that they did not rely on the
online definition of the word “aggravated” in their deliberations and that the
information did not sway their decision.
{¶94} Based upon the juror testimony during the hearings, the trial
court concluded that that no prejudice occurred as a result of the conduct of
the jurors and denied Appellant’s motion for a new trial. On appeal, the
State concedes that the juror conduct at issue constitutes juror misconduct
and we agree. The State further contends, however, that because no
prejudice occurred as a result of the misconduct, the trial court did not err or
abuse its discretion in denying Appellant’s motion for a new trial. We agree
with the State on this argument as well.
Scioto App. Nos. 16CA3745 and 16CA3760 62
{¶95} In State v. Gunnell, 132 Ohio St. 3d 442, 2012-Ohio-3236, 973
N.E.2d 243, the Court was presented with a scenario that involved a jury
who requested a definition of the word “perverse” from the trial court that
was not provided, which led a juror to look up the definition of the word
“perverse” on her home computer during the course of trial. The juror’s
note regarding the definition was intercepted by the bailiff before the juror
could share the information with the other jurors. Id. at ¶ 8. The trial court
subsequently granted a motion for a mistrial upon the request of the State.
Id. at ¶ 15. Upon appeal thereafter, although it was determined such action
constituted juror misconduct, it was also determined that the trial court erred
by declaring a mistrial without making a determination that any bias had
been introduced into the jury room as a result. Id. at ¶ 36. Here, it seems to
have been accepted that the jurors’ conduct of looking up definitions on the
internet during deliberations constituted juror misconduct, and again, the
State concedes as much on appeal.
{¶96} During the hearings that were held, the trial court went to great
lengths to question each juror individually in an attempt to discern whether
or not they relied upon the internet definitions in making their decisions. It
is clear from the record that each juror unanimously stated they did not.
Under these circumstances, we cannot conclude Appellant has established
Scioto App. Nos. 16CA3745 and 16CA3760 63
she was prejudiced by the juror misconduct. Further, the particular type of
juror misconduct at issue herein, looking up definitions of legal terms on the
internet, has been determined by another court not to be extremely or
inherently prejudicial, in the absence of evidence the jurors involved were
biased or prejudiced by the information obtained through the internet. See
State v. Gunnell, 2nd Dist. Clark No. 09-CA-0013, 2010-Ohio-4415, ¶ 177-
178. Thus, we cannot conclude the trial court abused its discretion in
denying Appellant's motion for a new trial. Accordingly, Appellant’s fourth
and final assignment of error is also overruled.
{¶97} Having failed to find merit in any of the assignments of error
raised by Appellant, the judgment of the trial court is affirmed.
JUDGMENT AFFIRMED.
Scioto App. Nos. 16CA3745 and 16CA3760 64
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.
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.
Harsha, J. & Hoover, J.: Concur in Judgment Only.
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.