State v. Vaughn , 2019 Ohio 1026 ( 2019 )

[Cite as State v. Vaughn, 2019-Ohio-1026.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2018-CA-31
:
v. : Trial Court Case No. 2017-CR-567
: and 2018-CR-005
SEAN VAUGHN :
: (Criminal Appeal from
Defendant-Appellant : Common Pleas Court)
:
...........
OPINION
Rendered on the 22nd day of March, 2019.
...........
ANDREW P. PICKERING, Atty. Reg. No. 0068770, Clark County Prosecutor’s Office,
Appellate Division, 50 E. Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
SEAN BRINKMAN, Atty. Reg. No. 0088253, 10 W. Monument Avenue, Dayton, Ohio
45402
Attorney for Defendant-Appellant
.............
-2-
HALL, J.
{¶ 1} Sean Vaughn appeals from his convictions for having weapons under
disability and two counts of aggravated possession of drugs. For the reasons set forth
below, we affirm Vaughn’s convictions for having weapons under disability and for one
count on aggravated possession of drugs. However, we vacate the second conviction for
aggravated possession of drugs. We remand this matter to the trial court for the purpose
of filing a judgment entry consistent with this opinion.
I. Facts and Procedural History
{¶ 2} During a traffic stop, a handgun and a Crown Royal bag containing money
and 35 tablets were found in the vehicle. Vaughn, a passenger in the vehicle, admitted
the weapon and drugs belonged to him. A criminal-history search revealed that Vaughn
had a prior felony conviction for drug trafficking. Eighteen (18) of the tablets contained a
pharmaceutical marking “M367,” and the remainder were marked “M365.” Chemical
testing of one of the “M367” tablets showed that it contained a Schedule II controlled
substance, hydrocodone. Vaughn was indicted on two counts of aggravated possession
of drugs (one for each set of tablets) and one count of having weapons under disability.
The case was tried to a jury.
{¶ 3} At the trial, Detective Ronald Jordan of the Springfield Police Division
testified. He said that Vaughn admitted to him that the handgun and tablets found in the
vehicle were his. Detective Jordan also testified that he checked to see if Vaughn had a
criminal history by searching Ohio’s LEADS1 database using Vaughn’s name, birthdate,
1
LEADS stands for law enforcement automated data system, “the statewide
-3-
and social security number. The State then presented a printout of Vaughn’s criminal
history, State’s Exhibit 11, which Detective Jordan identified as a computerized criminal
history (CCH) from the Ohio Bureau of Criminal Investigation and Identification. 2
According to the CCH printout, in 2002, “Sean Robert Vaughn,” born December 2, 1980,
was convicted of felony drug trafficking in Logan County, Ohio, in Case Number
“CR03020024-1.” Vaughn objected to the CCH printout and to Detective Jordan’s
testimony about it. He argued that the printout contained hearsay and did not fall under
the Evid.R. 803(8) exception for public records. The trial court disagreed and overruled
the objection. The State also presented a certified judgment entry from the Logan County
Common Pleas Court in Case Number “CR03-02-0024.” The entry stated that in 2002
“Sean R. Vaughn” was convicted of felony drug trafficking. The birthdate on the
sentencing entry was December 12, 1980. Detective Jordan testified that Vaughn’s date
of birth was December 2, 1980. Jordan compared the CCH identifying data for the arrest
and conviction in Logan County data and found it to be the same except for the date of
birth on the judgment entry.
{¶ 4} Lauren Ditto, a criminalist and chemist at the Ohio State Highway Patrol
Crime Laboratory, where the tablets were sent for testing, also testified at trial. Ditto said
that she did the testing. She testified that there were 35 tablets in all and that 18 bore the
computerized network which provides computerized data and communications for
criminal justice agencies within the state of Ohio.” Ohio Adm.Code 4501:2-10-01(W).
2
A computerized criminal history is “an electronic data processing file which is accessible
using specific data fields” and “contain[ing] records of arrests and dispositions of criminal
proceedings.” Ohio Adm.Code 4501:2-10-01(G). A police officer's testimony is sufficient
to show authenticity of a LEADS printout under Evid.R. 901. State v. Papusha, 12th Dist.
Preble No. CA2006-11-025, 2007-Ohio-3966, ¶ 14 citing Cleveland Metro. Park Dist. v.
Schillinger, 8th Dist. Cuyahoga No. 71512, 1997 WL 547946 (Sept. 4, 1997).
-4-
pharmaceutical imprint “M367” and 17 bore the imprint “M365.” Ditto stated that
pharmaceutical imprints indicate what substances are present and that online databases
and other references can be used to look up a particular imprint. In this case, she
searched an online pharmaceutical database for the two imprints on the tablets to
“presumptively identify” them. Tr. 190. She found that the tablets and imprints
corresponded to hydrocodone, a Schedule II controlled substance. Ditto also called this
presumptive identification a “presumptive examination,” Tr. 210-211, and referred to it as
a presumptive test.
Q. Okay. When you say “presumptive testing,” what does that mean?
A. It just gives a general idea of what is present, which then can determine
what test I would perform next in order to confirm the substance present.
Tr. 191.
Q. All right. Presumptive meaning, well, it probably contains hydrocodone?
A. That’s correct. Presumptive testing is just to give us an idea of what is
present and from what we see will depict (sic) on what confirmatory test that
we use.
Q. Sure. So the presumptive doesn’t tell you what is actually in the
pill. It says, well, you know, if this is the markings on there, then it could
contain this; but you folks do additional testing to actually determine what’s
in the pill, correct.
A. That is correct.
Tr. 217.
Q. Now with regard to the M365, you kind of had the same thing here.
-5-
You looked at the markings?
A. Correct.
Q. And you determined, well, these might contain hydrocodone
based on the research that I’ve done; but I don’t know for sure, right?
A. Correct.
Tr. 225.
{¶ 5} After presumptively identifying the first set of tablets, Ditto then performed a
confirmatory test on one of the M367 tablets; the results showed that the tablet did indeed
contain hydrocodone. Ditto said that she did not perform a confirmatory test on any of the
M365 tablets. Rather, she said that “I did a logo identification using the tablet marking.”
Tr. 214-215.
Q. And, again, based on that testing and those identifications, were you able
to identify what was contained in State’s Exhibit #5B [ the M365 tablets]?
A. Presumptively, it was found to contain acetaminophen and hydrocodone.
Tr. 215.
{¶ 6} At the close of the State’s case, Vaughn moved for a judgment of acquittal
on all the charges, renewing the motion after he presented his defense. He argued that
the State had failed to present sufficient evidence that he had previously been convicted
of felony drug trafficking, because the birthdate on the sentencing entry was not his
birthdate. Vaughn also argued that the State had failed to present sufficient evidence that
the tablets which were the basis of the count related to the pills marked M365 contained
a controlled substance, because the presumptive testing was not enough to establish
this. The trial court overruled both motions.
-6-
{¶ 7} The jury found Vaughn guilty of both charges of aggravated possession of
drugs and guilty of the charge of having weapons under disability. The trial court
sentenced Vaughn to three years in prison for having weapons under disability and to
one year each for aggravated possession of drugs, all to be served concurrently, for an
aggregate sentence of three years.
{¶ 8} Vaughn appeals.
II. The Record of the Case
{¶ 9} Vaughn was indicted as described above in Clark C.P. No. 18-CR-005 (one
count of having weapons under disability and two counts of aggravated possession of
drugs).3 He had previously been indicted in Clark C.P. Case No. 17-CR-567 on one
count of aggravated robbery and one count of having weapons under disability. These
cases were consolidated for trial. The jury found Vaughn guilty of the three charges in
Case No. 18-CR-005 and not guilty of the two charges in Case No. 17-CR-567.
{¶ 10} As a preliminary matter, we observe that the judgment entry of conviction
and Vaughn’s notice of appeal list only Case No. 17-CR-567 and not Case No. 18-CR-
005. Although the trial court’s consolidation entry of February 26, 2018, stated that the
cases were consolidated “for trial purposes,” the trial court appears to have thereafter
treated the cases as consolidated for all purposes; it included only Case No. 17-CR-567
on the verdict forms and judgment entry, and nothing was filed in Case No. 18-CR-005
after the consolidation order. The parties do not argue that the consolidation was
3
We infer from the trial court’s consolidation order that Case No.18-CR-005 was a
reindictment of charges originally brought in Clark C.P. No. 17-CR-627, with minor
changes and the addition of one charge. Case No. 17-CR-627 was also consolidated
with the other two on February 26, 2018, and then dismissed on March 2, 2018.
-7-
improper, and we find no problem with it. However, the fact that the notice of appeal
does not include the case number in which Vaughn was indicted (and therefore convicted)
presents a jurisdictional concern on appeal, and the fact that the record of Case No. 18-
CR-005 does not reflect his conviction of the offenses charged therein has the potential
to cause confusion at the Ohio Department of Rehabilitation and Correction or with
respect to future filings in that case.
{¶ 11} We will resolve these problems as follows: 1) we will sua sponte amend the
notice of appeal to add Case No. 18-CR-005 and will include this number on our opinion
and final entry; 2) as part of our disposition of this case, we will instruct the trial court to
file two things: a notice in the record of Case No. 18-CR-005 indicating that all filings after
the consolidation order appear in Case No. 17-CR-567, and an amended nunc pro tunc
judgment entry in Case No. 17-CR-567, which adds the 18-CR-005 case number; 3) for
purposes of this appeal, we will construe the record to include all of the filings in Case
Nos. 17-CR-567 and 18-CR-005.
III. Analysis
{¶ 12} Vaughn assigns two errors to the trial court. The first assignment of error
challenges the admission of the CCH printout, and the second assignment challenges the
overruling of his motion for acquittal.
A. Hearsay
{¶ 13} Vaughn alleges in the first assignment of error that the trial court erred by
admitting the CCH printout, and testimony related to it under the public-records hearsay
exception in Evid.R. 803(8). He argues that the printout did not fall under the public-
records exception because it was not a “public record” under Ohio’s Public Records Act.
-8-
{¶ 14} As a general rule, hearsay is not admissible into evidence, Evid.R. 802, but
there is an exception for certain public records. The exception in Evid.R. 803(8), titled
“Public Records and Reports,” states that the hearsay rule does not apply to “[r]ecords,
reports, statements, or data compilations, in any form, of public offices or agencies,
setting forth (a) the activities of the office or agency, or (b) matters observed pursuant to
duty imposed by law as to which matters there was a duty to report * * *.” Vaughn contends
that this exception applies only to information disclosable as a “public record” under
Ohio’s Public Records Act.
{¶ 15} Under the Public Records Act, criminal histories derived from computerized
criminal databases, like LEADS printouts, are not “public records” because Ohio law
prohibits public disclosure of the information. See State ex rel. Master v. Cleveland, 76
Ohio St.3d 340, 343, 667 N.E.2d 974 (1996) (saying that LEADS printouts are exempt
from disclosure under Ohio law); R.C. 149.43(A)(1)(v) (defining “public record” and stating
that it does not mean “[r]ecords the release of which is prohibited by state or federal law”).
Some Ohio courts have held that, because LEADS printouts are not “public records,” they
do not fall under public-records hearsay exception. E.g., State v. Straits, 5th Dist. Fairfield
No. 99 CA 7, 1999 WL 976212, *2 (Oct. 1, 1999) (concluding that “as a non-public record,
LEADS printouts are not excepted from the hearsay rule under Evid.R. 803(8).” Curiously,
that court also concluded that one of the LEADS printouts in that case was not hearsay,
and not introduced for its truth, because it was used to verify vehicle ownership rather
than to prove an element of the charged offenses). However, this is a minority view.
{¶ 16} The majority view is that the public-records exception to the hearsay rule
does not apply only to “public records” under the Public Records Act. The Twelfth District,
-9-
citing a treatise on Ohio evidence law, has explained: “As Weissenberger states, the term,
‘public records’ in the title of Evid.R. 803(8) is a misnomer. A more accurate term for what
the rule means is ‘official records,’ which Weissenberger defines as records ‘made or
done by an officer of the government,’ not necessarily ‘capable of being known or
observed by all.’ ” State v. McClain, 12th Dist. Warren No. CA2005-09-102, 2006-Ohio-
6708, ¶ 8, fn. 2, quoting Weissenberger, Ohio Evidence Treatise, Section 803.102, at 531
(2006). LEADS information is maintained by the Ohio state highway patrol
superintendent. Ohio Adm.Code 4501:2-10-01(W). Courts following the majority view
have held that a LEADS printout is admissible under Evid.R. 803(8)(a) because the
printout “contains only the routine activities of a public agency.” State v. Cooper, 8th Dist.
Cuyahoga No. 43765, 1982 WL 5240, *3 (Mar. 18, 1982). Accord McClain at ¶ 8; State
v. Freeman, 8th Dist. Cuyahoga No. 91842, 2009-Ohio-5218, ¶ 26.
{¶ 17} We agree with the majority view. We see little reason that the public-records
hearsay exception should track the Public Records Act. LEADS information is not a
“public record” because Ohio law expressly prohibits disclosure of the information. We
are unaware of any statute that similarly prohibits LEADS information from being admitted
as evidence. The reason for prohibiting disclosure of certain information as a “public
record” undoubtedly differs from the reason for excluding hearsay evidence. While we will
not speculate on the reason for the disclosure prohibition contained in the Public Records
Act, we doubt that it was to prevent untrustworthy evidence from being admitted at trial,
the reason for the hearsay rule.
{¶ 18} CCH information, like LEADS information, is maintained by a public office
or agency. By law, the bureau of criminal identification and investigation (BCI&I) is
-10-
statutorily required to keep criminal-history records. See R.C. 109.57(A). This includes
“records of arrests and dispositions of criminal proceedings.” Ohio Adm.Code 4501:2-10-
01(G). Each jail, prison, community-based correctional facility or other detention facility is
required to furnish similar information to BCI&I for those in their custody suspected of
having committed a felony or certain misdemeanors. R.C. 109.57(A)(1). Each clerk of a
court of record4 is required to submit a weekly report to BCI&I containing certain case
information for all felonies and certain misdemeanors. R. C. 109.57(A)(2). BCI&I is
responsible for keeping these records. Ohio Adm.Code 4501:2-10-01(G). (“The
repository of these records is the responsibility of the [BCI&I] as specified in sections
109.57 and 109.60 of the Revised Code.”). Like a LEADS printout, a CCH printout reflects
routine activities of a public agency. Although the records are not available to the general
public, they are widely available to and relied upon by criminal justice agencies such as
the police, regional dispatchers, jails, prosecutors, probation officers, and prisons. In our
view, these records created through statutory and administrative obligations, constitute
public records and are admissible under Evid.R. 803(8)(a).
{¶ 19} The trial court did not violate the hearsay rule by admitting the CCH printout
and related testimony.
{¶ 20} The first assignment of error is overruled.
B. Motion for Judgment of Acquittal
{¶ 21} The second assignment of error alleges that the trial court erred by
overruling Vaughn’s Crim.R. 29 motion for a judgment of acquittal. Vaughn argues that
the evidence presented was not sufficient to sustain his conviction for having weapons
4 Clerks of the Supreme Court and courts of appeals are excepted from this requirement.
-11-
under disability or his conviction for aggravated possession of drugs related to the M365
tablets.
{¶ 22} “A motion for judgment of acquittal tests whether the evidence, when viewed
in a light most favorable to the State, would permit a reasonable mind to find that all the
essential elements of the crime charged have been proven beyond a reasonable doubt.”
State v. Videen, 2013-Ohio-1364, 990 N.E.2d 173, ¶ 28 (2d Dist.), citing State v.
Bridgeman, 55 Ohio St.2d 261, 263, 381 N.E.2d 184 (1978).
Having weapons under disability
{¶ 23} Generally, a person is guilty of having weapons under disability if the person
knowingly acquires, has, carries, or uses any firearm or dangerous ordnance and if the
person “has been convicted of any felony offense involving the illegal possession, use,
sale, administration, distribution, or trafficking in any drug of abuse.” R.C. 2923.13(A)(3).
Vaughn argues that the state failed to present sufficient evidence that he had a prior
felony drug conviction.
{¶ 24} The state presented two documents as evidence that Vaughn had a prior
conviction; Detective Jordan testified about both documents. The CCH printout contained
Vaughn’s name, birthdate (December 2, 1980), social security number, and information
showing that Vaughn had been convicted of felony drug trafficking in Case No.
“CR03020024-1.” Jordan testified that Vaughn’s birthdate and social security number on
the CCH printout were correct. The state then presented the certified sentencing entry
from the Logan County Court of Common Pleas. The entry showed that “Sean R. Vaughn”
was convicted of felony drug trafficking in Case No. “CR03-02-0024.” The birthdate listed
for the defendant was December 12, 1980. Vaughn contends that, because the birthdate
-12-
on the sentencing entry was not his birthdate, the sentencing entry could not establish
that he had a prior felony drug trafficking conviction.
{¶ 25} Vaughn’s argument here depends on our concluding that the CCH printout
was erroneously admitted. But we have concluded that the CCH printout was admissible.
The combination of the sentencing entry, the detective’s testimony, and Vaughn’s data in
the CCH printout, if believed, together leave little doubt that Vaughn had a prior conviction
for felony drug trafficking and that the birthdate on the sentencing entry was simply a
mistake. Accordingly, there was sufficient evidence to find that Vaughn had been
convicted of felony drug trafficking.
Aggravated possession of drugs
{¶ 26} A person is guilty of aggravated possession of drugs if the person
possesses a “controlled substance.” R.C. 2925.11(A). Vaughn was charged with two
counts of aggravated possession of drugs, one for the set of 18 tablets with an “M367”
imprint and the other for a set of 17 tablets with an “M365” imprint. Here, he challenges
only the charge for the M365 tablets. Vaughn argues that the state failed to present
sufficient evidence that the M365 tablets contained a controlled substance.
{¶ 27} Lauren Ditto, the criminalist who examined the tablets, said that she
concluded that the M365 tablets contained hydrocodone based solely on examination,
research and identification using the appearance and imprint on the tablets. She said that
the “logo imprints” on a pharmaceutical tablets identify the drug. (Tr. 186.) Online
databases and literature references can be used to match a tablet’s markings with a
particular drug. Ditto explained: “I can type in the tablet shape, color, and the logo I see
present into the database; and it will generate images of potential matches. I then
-13-
compared the logo I have present in front of me with those that are online.” (Tr. at 191.)
She said that, while confirmatory testing may be done to confirm a drug’s presumptive
identity, she did not do any confirmatory testing on the M365 tablets. Accordingly, Ditto’s
conclusion that the M365 tablets contained hydrocodone was based solely on the
presumptive physical examination. She testified:
Q. (Prosecutor): And, again, based on that [presumptive examination and
research] testing and those identifications, were you able to identify what
was contained in State’s Exhibit 5(B) [the M365 tablets]?
A. Presumptively, it was found to contain acetaminophen and hydrocodone.
Tr. at 215.
{¶ 28} However, some of her further testimony in describing the “presumptive” test
was:
Q. (Defense counsel – on cross examination) And you determined, well,
these might contain hydrocodone based on the research that I’ve done; but
I don’t know for sure, right?
A. Correct.
***
Q. So you weren’t able to determine for sure what was in any of the [M]365
pills?
A. That is correct.
***
Q. (Prosecutor – on redirect) [Your report] doesn’t say anything about that
Item Number 2 [M365 tablets] being a Scheduled II controlled substance,
-14-
correct?
A. I didn’t confirm the presence of any controlled substance in it.
Q. So basically what you’re saying is we don’t know – We have no idea for
sure what’s in it?
A. That is correct. I did not perform any controlled substance testing on it.
(Tr. 225-226, 228.)
{¶ 29} Vaughn contends that presumptive testing alone was not enough to
conclude that the M365 tablets contained a controlled substance.
{¶ 30} “Under Ohio law, the state can establish the identity of a controlled
substance through either direct or circumstantial evidence.” State v. Johnson, 2015-Ohio-
3248, 40 N.E.3d 628, ¶ 68 (10th Dist.). Courts have held that testimony from a proper
witness identifying a pill as a particular pharmaceutical drug based solely on the pill’s
markings is sufficient circumstantial evidence that the pill is a controlled substance. E.g.,
State v. Volpe, 10th Dist. Franklin No. 06AP-1153, 2008-Ohio-1678, ¶ 37 (testimony
identifying alprazolam based solely on pharmaceutical markings found to be sufficient
evidence); State v. Foster, 11th Dist. Portage No. 2004-P-0104, 2005-Ohio-5281, ¶ 36-
37 (testimony identifying hydrocodone based solely on pharmaceutical markings was
sufficient evidence); State v. Bailey, 9th Dist. Summit No. 22773, 2006-Ohio-2042, ¶ 10-
11 (testimony identifying alprazolam based solely on pharmaceutical markings was
sufficient evidence). For example, in Volpe, the witness was the chief toxicologist for the
county. He testified that his conclusion that the pills at issue contained alprazolam was
based solely on the pills’ markings, using medical-reference materials. The Tenth District
held that this was sufficient to prove the drugs’ identity, saying that “[t]he State can
-15-
establish the identity of a drug through circumstantial evidence as long as the witness
(even a lay witness) has firsthand knowledge and sufficient experience or specialized
knowledge for arriving at the opinion expressed.” Volpe at ¶ 37, citing State v. McKee, 91
Ohio St.3d 292, 297, 744 N.E.2d 737 (2001).
{¶ 31} Here, Ditto’s qualifications would ordinarily permit her to express an opinion
on the identity of the M365 tablets. She testified that her job at the crime lab was to test
evidence for controlled substances. She further testified that she had completed the crime
lab’s apprenticeship program in the identification of controlled substances and had
completed coursework for a master’s degree in forensic chemistry. Ditto had first-hand
knowledge, sufficient experience, and specialized knowledge to express an opinion on
the identity of the M365 tablets.
{¶ 32} Had Ditto expressed an opinion that she believed the M365 tablets
contained hydrocodone (i.e,, that they were the proper shape, size, color and they
appeared unadulterated, or perhaps that they were in an identified prescription container)
we would reject Vaugn’s contention that the evidence was insufficient to support a
conviction of possession of drugs for the 17 M365 tablets on the basis that they were a
controlled substance. But that was not her testimony. She affirmatively stated that she
had “no idea” what the tablets contained and was not sure what they contained. On this
record, we agree that there was insufficient evidence to sustain the conviction for
possession of the 17 M365 tablets.5
5 Had we not vacated the second aggravated possession of drugs conviction on
sufficiency of the evidence, we would have requested that the parties brief an issue we
suspect could be plain error. The 18 M367 tablets and the 17 M365 tablets were all found
in the same Crown Royal bag. Chemist Ditto explained she did not test one of the second
set because the combination of both did not aggregate to a bulk amount and would not
-16-
{¶ 33} The second assignment of error is sustained.
IV. Conclusion
{¶ 34} We have overruled the first assignment of error and have sustained the
second assignment of error. We affirm the conviction for having a weapon under disability
and for aggravated possession of drugs related to the M367 tablets. We vacate the
conviction for aggravated possession of the M365 tablets. We remand the case to the
trial court solely for the purpose of filing a judgment entry consistent with this opinion,
which correctly lists the counts of which Vaughn has been convicted and the case
numbers to which the judgment is addressed. As discussed above, the trial court shall
file the corrected judgment entry in Clark C.P. Case No. 17-CR-567, and it shall also file
a notice in the record of Clark C.P. No. 18-CR-005 indicating that all future filings in that
case may be found in the record of Clark C.P. No. 17-CR-567. The trial court also shall
forward a copy of the revised judgment entry to the Ohio Department of Rehabilitation
and Correction, so that its record will accurately reflect the affirmed convictions and case
numbers.
.............
DONOVAN, J. and FROELICH, J., concur.
have changed the charges in this case. Tr. 214. The difference between the two sets was
only the strength of the hydrocodone in the prescription. Assuming that the only controlled
substance in both sets was hydrocodone, charging Vaughn with a separate count for
possession, in the same container, of stronger hydrocodone and weaker hydrocodone
was like charging a defendant with possession of crack cocaine for the bigger rocks in a
container and separately charging the same defendant for possession of the smaller
rocks in the same container. It may be, in the proper case, separate identifiable charges
would be appropriate. But we fail to comprehend how that would be permissible here.
-17-
Copies sent to:
Andrew P. Pickering
Sean Brinkman
Hon. Douglas M. Rastatter