State v. Nesbit , 2019 Ohio 1646 ( 2019 )

[Cite as State v. Nesbit, 2019-Ohio-1646.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 107278
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DARNELL L. NESBIT
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-17-614900-A and CR-17-623194-A
BEFORE: Celebrezze, J., Kilbane, A.J., and Sheehan, J.
RELEASED AND JOURNALIZED: May 2, 2019
ATTORNEY FOR APPELLANT
Thomas A. Rein
820 West Superior Avenue, Suite 800
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Justin Washburne
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:
{¶1} Defendant-appellant, Darnell Nesbit (“appellant”), brings the instant appeal
challenging his convictions and sentence. Specifically, appellant argues that the trial
court erred in denying his motion to suppress; the trial court erred in denying his
judgment of acquittal motion; his convictions are against the manifest weight of the
evidence; the trial court erred in granting the prosecutor’s oral motion for joinder; the trial
court erred when it admitted other acts evidence pursuant to Evid.R. 404(B); and the trial
court improperly ordered him to pay court costs. After a thorough review of the record
and law, this court affirms.
I. Factual and Procedural History
{¶2} On February 12, 2017, appellant’s vehicle was stopped in Cleveland, Ohio by
two Regional Transit Authority (“RTA”) police officers, Officers Cooke and Shuster,
after appellant was observed committing a traffic violation. The officers observed
appellant drive through a red light, in violation of R.C. 4511.13, and initiated a traffic
stop.1
{¶3} Once Officers Cooke and Shuster approached appellant’s vehicle, they
smelled a strong odor of burnt marijuana and identified the driver of the vehicle as
appellant. The officers asked appellant about the smell of burnt marijuana, and
1Appellant
was found not guilty of this traffic violation. See Cleveland M.C.
No. 2017 TRD 004859.
appellant stated that he had just smoked marijuana but he threw the “roach out” of the
vehicle. Officers also learned that the vehicle was not registered to appellant.
{¶4} While attempting to issue appellant a citation for the traffic violation,
appellant became disorderly and argumentative and refused to sign for the traffic citation.
Officers attempted on three occasions to have appellant sign for the citation. As a
result of appellant’s disorderliness, the officers removed appellant from the vehicle and
radioed their supervisor to the scene. Officers Cooke and Shuster then began to search
appellant’s vehicle for the source, if any, of the marijuana. During the search of
appellant’s vehicle, officers located a winter glove under the driver’s seat. Inside the
winter glove, officers found a small bag that contained grey colored “rocks,” which
officers suspected to be narcotics. As officers discovered these suspected narcotics,
appellant fled the scene on foot. Appellant was later apprehended down the street from
the location of the traffic stop.
{¶5} Appellant was arrested, the vehicle was towed, and officers conducted an
inventory search of the vehicle. Subsequent testing performed determined that the grey
rock-like substance found in the winter glove was methamphetamine. Officers also
located a prescription pill bottle of Tramadol,2 a controlled substance, in the vehicle’s
center console. The bottle of Tramadol was not prescribed to appellant. Officers also
found a small bag containing marijuana in the vehicle’s driver’s side door panel.
2 A prescribed pain medication.
{¶6} Appellant was charged in the following three-count indictment in Cuyahoga
C.P. No. CR-17-614900 (“614900”): Count 1, possession of drugs —
methamphetamines, in violation of R.C. 2925.11(A), a fifth-degree felony; Count 2,
possession of drugs — Tramadol, in violation of R.C. 2925.11(A), a fifth-degree felony;
and Count 3, obstructing official business, in violation of R.C. 2921.31(A), a
second-degree misdemeanor. Appellant pled not guilty to the offenses.
{¶7} The matter proceeded through the pretrial process, and appellant’s trial
counsel filed a motion to suppress. On August 7, 2017, a hearing was held on
appellant’s motion to suppress. The trial court issued a judgment entry on August 9,
2017, denying the motion. Thereafter, the matter continued through the pretrial process
and a trial date was set for November 8, 2017.
{¶8} The November 8, 2017 trial date was converted to a final pretrial hearing, and
at the request of appellant, the trial date was continued to January 16, 2018. On the next
day, November 9, 2017, the trial court issued a journal entry stating that appellant had
failed to comply with the conditions of his bond and issued a capias for appellant’s arrest.
{¶9} On November 9, 2017, appellant was arrested on additional drug charges
following a traffic stop. Just after midnight on November 9, 2017, two Cleveland police
officers were patrolling the area of East 23rd Street and St. Clair Avenue in the city of
Cleveland. Officers observed appellant operating a vehicle and playing very loud music,
in violation of Cleveland’s municipal ordinance. As officers pulled up next to appellant,
appellant turned down the volume of the music. While attempting to administer a
loud-music-noise complaint, officers observed several baggies containing marijuana on
the passenger’s side floorboard. Several more baggies containing marijuana were
located in the vehicle’s passenger’s door compartment. Appellant was arrested and
placed in the backseat of the patrol car and transported to jail. After appellant was
transported and removed from the patrol car, officers observed a white rock substance on
the floor in the backseat of the patrol car. This substance tested positive for cocaine.
{¶10} Appellant was thereafter charged in the following two-count indictment in
Cuyahoga C.P. No. CR-17-623194 (“623194”), for the November 9, 2017 traffic stop:
Count 1, trafficking in marijuana, in violation of R.C. 2925.03(A)(2), a fifth-degree
felony; and Count 2, possession of drugs — cocaine, in violation of R.C. 2925.11(A), a
fifth-degree felony. Appellant pled not guilty to the charges, and this case was manually
assigned to the trial judge assigned to 614900.
{¶11} Appellant’s two pending cases were set for trial on the same day: February
26, 2018. After a continuance, both matters were rescheduled for trial on April 24,
2018. Prior to commencing trial on April 24, the prosecutor made an oral motion to join
both cases for the purposes of trial. The trial court granted the motion. Both matters
proceeded to a jury trial. With regards to 614900, appellant was found guilty of Counts
2 and 3, and was found not guilty of Count 1. With regard to 623194, appellant was
found guilty of Counts 1 and 2.
{¶12} On May 23, 2018, the trial court held a sentencing hearing on both cases.
In each case, appellant was sentenced to one-year community control sanctions under the
supervision of the community-based correctional facility (“CBCF”). Appellant’s
sentences were ordered to be served concurrently.
{¶13} Appellant filed the instant appeal and assigns six errors for our review:
I. The trial court erred in denying [a]ppellant’s motion to suppress.
II. The trial court erred by failing to grant a judgment of acquittal,
pursuant to Crim.R. 29(A), on the charges, and thereafter entering a
judgment of conviction of that offense as those charges were not supported
by sufficient evidence, in violation of [appellant’s] right to due process of
law, as guaranteed by the Fourteenth Amendment of the United States
Constitution.
III. Appellant’s convictions are against the manifest weight of the
evidence.
IV. The trial court erred by not ordering a separate trial for two cases.
V. The trial court erred when it admitted other acts testimony in violation
of R.C. 2945.59, Evid.R. 404(B) and [a]ppellant’s rights under Article I,
Section 10 of the Ohio Constitution and the Fourteenth Amendment to the
United States Constitution.
VI. The trial court improperly in the [s]entencing [j]ournal [e]ntries
imposed court costs in this case when it said nothing about them in open
court on the record.
II. Law and Analysis
A. Motion to Suppress
{¶14} In appellant’s first assignment of error, he argues that the trial court erred in
denying his motion to suppress.
{¶15} We review a trial court’s decision on a motion to suppress under a mixed
standard of review.
“In a motion to suppress, the trial court assumes the role of trier of fact and
is in the best position to resolve questions of fact and evaluate witness
credibility.” State v. Curry, 95 Ohio App.3d 93, 96, 641 N.E.2d 1172 (8th
Dist.1994). The reviewing court must accept the trial court’s findings of
fact in ruling on a motion to suppress if the findings are supported by
competent, credible evidence. State v. Burnside, 100 Ohio St.3d 152,
2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. With respect to the trial court’s
conclusion of law, the reviewing court applies a de novo standard of review
and decides whether the facts satisfy the applicable legal standard. Id.,citing State v. McNamara, 124 Ohio App.3d 706, 707 N.E.2d 539 (4th
Dist.1997).
State v. Miller, 8th Dist. Cuyahoga No. 106946, 2018-Ohio-4898, ¶ 22.
{¶16} Appellant argues that investigating officers lacked reasonable suspicion and
probable cause to stop appellant’s vehicle. To this end, appellant also argues that
officers “lacked the requisite ‘reasonable suspicion’ or ‘probable cause’ to pat down
and/or search [a]ppellant or [his vehicle].” Appellant’s brief at 11.
{¶17} This court has noted that the standards set forth in Terry v. Ohio, 392 U.S. 1,
88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), “are applied in order to determine whether police
engaged in reasonable conduct in making a traffic stop.” Strongsville v. Carr, 8th Dist.
Cuyahoga No. 89666, 2008-Ohio-907, ¶ 13. “Under Terry, a law enforcement officer
may briefly stop and detain an individual for investigative purposes if he has a reasonable
suspicion supported by articulable facts that ‘criminal activity may be afoot.’” Id. at ¶
14, citing Terry at 30.
We evaluate the legitimacy of Terry stops by engaging in a two-part
analysis of the reasonableness of the stop: First, we must determine
“whether there was a proper basis for the stop, which is judged by
examining whether the law enforcement officials were aware of specific
and articulable facts which gave rise to reasonable suspicion.” United
States v. Garza, 10 F.3d 1241, 1245 [(6th Cir.1993)]; United States v.
Hardnett, 804 F.2d 353, 356 [(6th Cir.1986)] certiorari denied (1987), 479
U.S. 1097, 107 S.Ct. 1318, 94 L.Ed.2d 171. Second, we decide “whether
the degree of intrusion into the suspect’s personal security was reasonably
related in scope to the situation at hand, which is judged by examining the
reasonableness of the officials’ conduct given their suspicions and the
surrounding circumstances.” Id.Id. at ¶ 15.
{¶18} Furthermore, “if the specific and articulable facts available to an officer
indicate that a motorist may be committing a criminal act, which includes the violation of
a traffic law, the officer is justified in making an investigative stop.” State v.
Davenport, 8th Dist. Cuyahoga No. 83487, 2004-Ohio-5020, ¶ 15.
{¶19} Appellant appears to argue that because he was found not guilty of the
traffic violation in Cleveland Municipal Court, officers were not justified in stopping his
vehicle. It would follow that the officers did not have reasonable suspicion of criminal
activity that would warrant the investigative stop of appellant’s vehicle.
{¶20} In support of his argument in this regard, appellant cites to State v. Lopez,
8th Dist. Cuyahoga No. 93197, 2010-Ohio-2462. In Lopez, this court reversed a trial
court’s denial of a motion to suppress. This court noted that although the officer had a
valid reason to initially stop Lopez because he did not observe a front or rear license
plate, after the officer saw that a temporary license plate was properly displayed, he had
no reason to ask for Lopez’s driver’s license. Lopez’s valid temporary tag was affixed
to the rear window, in full compliance with R.C. 4503.21. This court further noted that
once the officer exited his patrol car, the officer stated that he could immediately see the
temporary tag affixed to the rear window. As such, the officer lacked a proper basis to
conduct the traffic stop once he observed the temporary license plate tag was in full
compliance with R.C. 4503.21.
{¶21} The instant matter is clearly distinguishable from Lopez because Officers
Cooke and Shuster observed appellant pull out of a gas station and proceed through a red
traffic light at an intersection, in violation of R.C. 4511.13. Indeed, the officers
observed a traffic violation. In Lopez, the investigating officer testified that
[H]e observed Lopez’s vehicle coming toward his patrol car without a front
license plate on the car. When Lopez passed him, [the officer] could not
see a rear license plate on the vehicle either. * * *
[The officer] could not see a rear license plate on Lopez’s car “until he
stepped out” of his patrol car.
Id. at ¶ 5, 6. Therefore, the officer in Lopez did not actually see a traffic violation, but
stopped the vehicle to investigate whether or not Lopez’s vehicle did or did not properly
display the temporary tag. In the instant matter, Officers Cooke and Shuster observed a
traffic violation; therefore, they had a proper basis to conduct an investigative stop of
appellant’s vehicle.
{¶22} After initiating the traffic stop and as Officers Cooke and Shuster were
investigating the traffic violation, the officers encountered additional facts — the smell of
burnt marijuana — which gave rise to a reasonable, articulable suspicion of criminal
activity beyond the traffic violation for which the initial stop was prompted. “‘The
detention of a stopped driver may continue beyond [the normal] time frame when
additional facts are encountered that give rise to a reasonable, articulable suspicion of
criminal activity beyond that which prompted the initial stop.’” (Citations omitted.)
State v. Batchili, 113 Ohio St.3d 403, 2007-Ohio-2204, 865 N.E.2d 1282, ¶ 15, quoting
State v. Howard, 12th Dist. Preble Nos. CA2006-02-002 and CA2006-02-003,
2006-Ohio-5656, ¶ 16.
{¶23} The Ohio Supreme Court has held that
[t]he smell of marijuana, alone, by a person qualified to recognize the odor,
is sufficient to establish probable cause to search a motor vehicle, pursuant
to the automobile exception to the warrant requirement. There need be no
tangible evidence to justify a warrantless search of a vehicle.
State v. Moore, 90 Ohio St.3d 47, 48, 734 N.E.2d 804 (2000). Further, “[t]here need be
no additional factors to corroborate the suspicion of the presence of marijuana.” Id. at
50.
{¶24} Furthermore, once appellant refused to sign the traffic citation, three
separate times, Officers Cooke and Shuster asked appellant to exit the vehicle. Officer
Cooke testified that the failure to sign the traffic citation is itself a traffic offense. To
this end, if appellant refused to sign, Officer Cooke testified that appellant would be
arrested and the vehicle would be towed and thereafter subject to an inventory search.
{¶25} We note that at the close of appellant’s counsel’s arguments regarding the
motion to suppress, his counsel stated that “even if there was probable cause for the
traffic stop, there was no basis for a search of the vehicle without a search warrant.”
(Tr. 64.) The trial court responded:
Well, the reason that he was removed from the vehicle is because he refused
to sign the acknowledgment on the ticket. And he was going to be
arrested, from the testimony that I heard, so at this point in time the vehicle
was going to be towed and going to be inventoried.
(Tr. 64.) The trial court then denied appellant’s motion to suppress.
{¶26} In our review of the record, we find that circumstances such as the officer’s
observations that appellant had committed a traffic violation, the smell of burnt
marijuana, and appellant’s refusal to sign the citation provided officers with reasonable
suspicion and probable cause to search appellant’s vehicle. To this end, the trial court’s
findings are supported by competent, credible evidence, and the trial court did not err in
denying appellant’s motion to suppress.
{¶27} Accordingly, appellant’s first assignment of error is overruled.
B. Crim.R. 29(A)
{¶28} In his second assignment of error, appellant argues that the trial court erred
by denying defense counsel’s Crim.R. 29 motion for a judgment of acquittal and that his
convictions were not supported by sufficient evidence.
A Crim.R. 29 motion challenges the sufficiency of the evidence. The test
for sufficiency requires a determination of whether the prosecution met its
burden of production at trial. State v. Bowden, 8th Dist. Cuyahoga No.
92266, 2009-Ohio-3598, ¶ 12. An appellate court’s function when
reviewing the sufficiency of the evidence to support a criminal conviction is
to examine the evidence admitted at trial to determine whether such
evidence, if believed, would convince the average mind of the defendant’s
guilt beyond a reasonable doubt. State v. Murphy, 91 Ohio St.3d 516, 543,
747 N.E.2d 765 (2001). “‘The relevant inquiry is whether, after viewing
the evidence in a light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime proven beyond
a reasonable doubt.’” State v. Walker, 150 Ohio St.3d 409,
2016-Ohio-8295, 82 N.E.3d 1124, ¶ 12, quoting State v. Jenks, 61 Ohio
St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
State v. Keller, 8th Dist. Cuyahoga No. 106196, 2018-Ohio-4107, ¶ 19.
1. 614900
{¶29} In support of his sufficiency challenge, with regard to Count 2 in 614900,
appellant argues that the state failed to prove he knowingly possessed the Tramadol.
{¶30} Pursuant to R.C. 2925.11(A), “no person shall knowingly, obtain, possess,
or use a controlled substance.”
A person acts knowingly, regardless of purpose, when the person is aware
that the person’s conduct will probably cause a certain result or will
probably be of a certain nature. A person has knowledge of circumstances
when the person is aware that such circumstances probably exist. When
knowledge of the existence of a particular fact is an element of an offense,
such knowledge is established if a person subjectively believes that there is
a high probability of its existence and fails to make inquiry or acts with a
conscious purpose to avoid learning the fact.
R.C. 2901.22(B). Appellant appears to argue that because he was found not guilty as to
Count 1, involving the methamphetamine located in a small bag inside the winter glove
discovered underneath the driver’s seat, then there existed insufficient evidence as to
Count 2, involving the Tramadol.
{¶31} In the instant matter, appellant was the sole occupant of the vehicle and the
Tramadol was found in the center console of the vehicle. It appears from the testimony
that the Tramadol was easily in appellant’s view and within appellant’s reach as he was
operating the vehicle. Notwithstanding the fact that appellant testified that none of the
drugs in the car were his, on cross-examination, appellant stated that he knew the
Tramadol was in the car. Appellant also testified that he was supposed to take the
Tramadol to someone he only knew as “D.” In our review of the record, we find that
there existed sufficient evidence that appellant knowingly possessed the Tramadol.
{¶32} Further, notwithstanding the above evidence, there existed sufficient
evidence to establish that appellant constructively possessed the Tramadol.
“Constructive possession exists when an individual exercises dominion and control over
an object, even though the object may not be within his immediate physical possession.”
State v. Wolery, 46 Ohio St.2d 316, 329, 348 N.E.2d 351 (1976).
Where a sizeable amount of readily usable drugs are in close proximity to
the defendant, there is circumstantial evidence to support constructive
possession. State v. Williams, 8th Dist. Cuyahoga Nos. 92009 and 92010,
2009-Ohio-5553, ¶ 68; State v. Pruitt, 18 Ohio App.3d 50, 480 N.E.2d
499 (8th Dist.1984); State v. Braxton, 8th Dist. Cuyahoga No. 56269,
1990 Ohio App. LEXIS 220 (Jan. 18, 1990); State v. Walker, 8th Dist.
Cuyahoga Nos. 52485 and 52486, 1987 Ohio App. LEXIS 9176 (Oct. 15,
1987). Knowledge of an illegal object on one’s property is sufficient to
show constructive knowledge as long as the person is conscious of the
object’s presence. State v. Santiago, 8th Dist. Cuyahoga No. 95333,
2011-Ohio-1691, citing State v. Hankerson, 70 Ohio St.2d 87, 434 N.E.2d
1362 (1982).
State v. Jones, 8th Dist. Cuyahoga No. 101311, 2015-Ohio-1818, ¶ 46.
{¶33} Considering all of the aforementioned evidence in a light most favorable to
the state, we find that appellant’s conviction for drug possession was supported by
sufficient evidence.
{¶34} With regard to Count 3, obstructing official business, appellant simply
makes the assertion “that there is no ample evidence to substantiate a conviction to this
charge.” Appellant’s brief at 18. Appellant cites to no authority, much less develops
any sort of argument as required by App.R. 16(A)(7). Nevertheless, we will address this
argument.
{¶35} R.C. 2931.21(A) provides
No person, without privilege to do so and with purpose to prevent, obstruct,
or delay the performance by a public official of any authorized act within
the public official’s official capacity, shall do any act that hampers or
impedes a public official in the performance of the public official’s lawful
duties.
{¶36} In the instant matter, Officers Cooke and Shuster were acting in their
official capacity as police officers. When officers located the suspected narcotics inside
the winter glove, officers were authorized to arrest appellant on the suspected charge of
drug possession. This authorized arrest was hampered and impeded when appellant fled
the scene, running away from the officers. As such, appellant’s conviction for
obstructing official business was supported by sufficient evidence.
2. 623194
{¶37} With regard to 623194, appellant also argues that there lacked sufficient
evidence to support his convictions. Appellant was charged with Count 1, drug
trafficking, in violation of R.C. 2925.03(A)(2), which provides that no person “shall
knowingly * * * [p]repare for shipment, ship, transport, deliver, prepare for distribution,
or distribute a controlled substance * * * when the offender knows or has reasonable
cause to believe that the controlled substance * * * is intended for sale or resale by the
offender or another person.”
{¶38} Appellant argues that because he “was not on the street selling or involved
in any drug transactions,” his conviction for drug trafficking is not supported by sufficient
evidence. Appellant’s brief at 19.
{¶39} In the instant matter, arresting officers located a total of 22 individually
wrapped baggies containing marijuana in appellant’s vehicle. Appellant was the only
occupant of the vehicle. Further, Officer Nycz of the Cleveland Police Department
provided detailed testimony that individually wrapped baggies of narcotics are typically
used in the preparation of sale of narcotics.
{¶40} Based on these facts, we find that reasonable minds could conclude that
appellant did knowingly transport the individual bags of marijuana, which he either
intended to sell or knew someone else who was going to sell. See State v. Black, 8th
Dist. Cuyahoga No. 86193, 2006-Ohio-103, ¶ 14. As such, appellant’s conviction for
drug trafficking was supported by sufficient evidence.
{¶41} Appellant was also charged in 623194 with possession of cocaine in
violation of R.C. 2925.11(A). Appellant argues that there was not sufficient evidence
that appellant possessed the cocaine. Officers testified that after appellant was arrested
for the suspected drug trafficking, he was placed in the backseat of the patrol car and
transported to jail. During transport, appellant was observed shifting around as he was
seated in the backseat. After officers removed appellant from the backseat, officers
observed a white rock of suspected cocaine on the floor in the backseat of the vehicle.
This substance tested positive for cocaine. Officers testified that Cleveland police have
a department-wide protocol where patrol officers clean the backseat of their patrol car
every time they transport an individual in the patrol car. This cleaning is also performed
prior to and at the end of their patrol shift. Officer Nycz testified that he complied with
this protocol on the night he arrested appellant and stated that the cocaine was not in the
backseat prior to transporting appellant to jail.
{¶42} Based on these facts, we find that appellant’s conviction for drug possession
was supported by sufficient evidence.
{¶43} For all of these reasons, appellant’s second assignment of error is overruled.
C. Manifest Weight
{¶44} In his third assignment of error, appellant argues that his convictions were
against the manifest weight of the evidence.
{¶45} A manifest weight challenge questions whether the state met its burden of
persuasion. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, at ¶ 12. A
reviewing court “‘weighs the evidence and all reasonable inferences, considers the
credibility of witnesses and determines whether in resolving conflicts in the evidence, the
jury clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.’” State v. Thompkins, 78 Ohio
St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin, 20 Ohio App.3d 172,
175, 485 N.E.2d 717 (1st Dist.1983). “A conviction should be reversed as against the
manifest weight of the evidence only in the most ‘exceptional case in which the evidence
weighs heavily against the conviction.’” State v. Burks, 8th Dist. Cuyahoga No. 106639,
2018-Ohio-4777, ¶ 47, quoting Thompkins at 387.
{¶46} Although this court reviews credibility when considering the manifest
weight of the evidence,
we are cognizant that determinations regarding the credibility of witnesses
and the weight of the testimony are primarily for the trier of fact. State v.
Bradley, 8th Dist. Cuyahoga No. 97333, 2012-Ohio-2765, ¶ 14, citing State
v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). The trier of fact is
best able “to view the witnesses and observe their demeanor, gestures, and
voice inflections, and use these observations in weighing the credibility of
the proffered testimony.” State v. Wilson, 113 Ohio St.3d 382,
2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24.
Id. at ¶ 48. The jury is then able to observe any inconsistencies and resolve them
accordingly, “believ[ing] all, part, or none of a witness’s testimony.” State v. Raver,
10th Dist. Franklin No. 02AP-604, 2003-Ohio-958, ¶ 21, citing State v. Antill, 176 Ohio
St. 61, 67, 197 N.E.2d 548 (1964).
{¶47} In the instant matter, in support of his manifest weight challenge, appellant
argues that the “testimony of the two incidents became so intertwined that it prohibited
the jury from properly evaluating what truly happened in this case.” Appellant’s brief at
21. Appellant again fails to cite to any authority as required by App.R. 16(A)(7) much
less develop any argument demonstrating that his convictions were against the manifest
weight of the evidence. See Cleveland v. Hall, 8th Dist. Cuyahoga No. 101820,
2015-Ohio-2698, ¶ 14, citing App.R. 16(A)(7) (pursuant to App.R. 16(A)(7), this court
overruled an appellant’s assignment of error relating to a sufficiency challenge because
the appellant did not make a specific argument regarding why the convictions were not
supported by sufficient evidence and only addressed the issues relating to the manifest
weight challenge).
{¶48} Nevertheless, after reviewing the record and deferring to the trier of fact’s
credibility assessment, we are unable to conclude that the trier of fact lost its way and
created a manifest injustice. The jury, as the trier of fact was in the best position to
weigh the credibility of the witnesses and was free to believe all or part of appellant’s
testimony. It is apparent that the jury did believe some of appellant’s testimony because
the jury returned a not guilty verdict in 614900, on Count 1, possession of
methamphetamine. However, appellant’s convictions are not against the manifest
weight of the evidence simply because the jury chose to believe portions of the officers’
version of the events rather than appellant’s proffered version of the events. See State v.
Middleton, 8th Dist. Cuyahoga No. 106824, 2018-Ohio-5038, ¶ 25. See also State v.
Nelson, 2017-Ohio-5568, 93 N.E.3d 472, ¶ 58 (8th Dist.).
{¶49} Based on our findings as to appellant’s sufficiency challenge, we similarly
find that appellant’s convictions were not against the manifest weight of the evidence.
{¶50} Accordingly, appellant’s third assignment of error is overruled.
D. Joinder
{¶51} In appellant’s fourth assignment of error, he argues that the trial court erred
when it granted the state’s motion to join appellant’s two cases for purposes of trial.
{¶52} Crim.R. 13 provides that a trial court may order two or more indictments to
be tried together “if the offenses or the defendants could have been joined in a single
indictment or information.” In conjunction with Crim.R. 13, pursuant to Crim.R. 8(A),
two or more offenses may be charged in a single indictment if the offenses “are of the
same or similar character, or are based on the same act or transaction, or are based on two
or more acts or transactions connected together or constituting parts of a common
scheme or plan, or are part of a course of criminal conduct.” Crim.R. 8(A).
{¶53} The law favors joining multiple offenses in a single trial if these Crim.R.
8(A) requirements are satisfied. State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266,
900 N.E.2d 565, ¶ 94. “‘[J]oinder and the avoidance of multiple trials is favored for
many reasons, among which are conserving time and expense, diminishing the
inconvenience to witnesses and minimizing the possibility of incongruous results in
successive trials before different juries.’” State v. Houston, 2017-Ohio-4179, 92 N.E.3d
176, ¶ 28 (8th Dist.), quoting State v. Torres, 66 Ohio St.2d 340, 421 N.E.2d 1288 (1981).
{¶54} “‘A defendant claiming prejudice by the joinder of offenses may move for
severance under Crim.R. 14.’” State v. Bennett, 9th Dist. Lorain No. 12CA010286,
2014-Ohio-160, ¶ 9, quoting State v. Merriweather, 9th Dist. Lorain No. 97CA006693,
1998 Ohio App. LEXIS 2021 (May 6, 1998). The defendant then has “‘the burden of
making an affirmative showing that his rights will be prejudiced’” by joinder. State v.
Davis, 9th Dist. Summit No. 26660, 2013-Ohio-5226, ¶ 40, quoting State v. Roberts, 62
Ohio St.2d 170, 175, 405 N.E.2d 247 (1980).
{¶55} “When a defendant claims that he was prejudiced by the joinder of multiple
offenses, a court must determine: (1) whether evidence of the other crimes would be
admissible even if the counts were severed; and (2) if not, whether the evidence of each
crime is simple and distinct.” State v. Schaim, 65 Ohio St.3d 51, 59, 600 N.E.2d 661(1992), citing State v. Hamblin, 37 Ohio St.3d 153, 158-159, 524 N.E.2d 476 (1988).
“‘Simple and direct’ evidence means the evidence of each crime is ‘so clearly separate
and distinct as to prevent the jury from considering evidence of [one crime] as
corroborative as the other.’” Houston, 2017-Ohio-4179, 92 N.E.3d 176, ¶ 31 (8th Dist.),
quoting State v. Quinones, 11th Dist. Lake No. 2003-L-015, 2005-Ohio-6576, ¶ 48.
{¶56} However, “a defendant’s failure to renew his or her Crim.R. 14 motion for
severance at the close of the [s]tate’s case or at the close of all evidence waives all but
plain error on appeal.” State v. Howard, 3d Dist. Marion No. 9-10-50, 2011-Ohio-3524,
¶ 82, citing State v. Miller, 105 Ohio App.3d 679, 691, 664 N.E.2d 1309 (4th Dist.1995).
{¶57} In the instant matter, in our review of the record, we note that appellant did
not renew his Crim.R. 14 motion at the close of the state’s case. Accordingly, we
review for plain error. See id. Prior to the commencement of trial, the prosecutor
moved the trial court for a joinder of both of appellant’s cases.
[PROSECUTOR]: Your Honor, the state would move to join both the
cases before the Court. They both involve charges of drug possession, and
they’re only three months apart. So under Criminal Rule 8 they could
have been charged in the same indictment, so the state would request the
Court join both cases and that we try them together.
THE COURT: Actually they’re nine months apart. I think, given the
nature of the underlying offenses, that makes sense.
[APPELLANT’S FIRST COUNSEL]: Judge, for the record I would
object.
THE COURT: Thank you.
[APPELLANT’S SECOND COUNSEL]: Your Honor, I would object as
well.
THE COURT: Very good. Noted for the record. The Court will
proceed with the trial on both cases.
(Tr. 65-66.) However, these objections were not renewed, by either of appellant’s two
attorneys, and thus, we review for plain error.
“To demonstrate plain error, the defendant must demonstrate that the trial
court deviated from a legal rule, the error was an obvious defect in the
proceeding, and the error affected a substantial right.” State v. Barnes, 94
Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). “The defendant must also
demonstrate that the outcome of his trial would clearly have been different
but for the trial court’s errors.” State v. Waddell, 75 Ohio St.3d 163, 166,
661 N.E.2d 1043 (1996). We recognize plain error “with the utmost
caution, under exceptional circumstances and only to prevent a manifest
miscarriage of justice.” State v. Landrum, 53 Ohio St.3d 107, 110, 559
N.E.2d 710 (1990).
Lyndhurst v. Smith, 8th Dist. Cuyahoga No. 101019, 2015-Ohio-2512, ¶ 32.
{¶58} In our review of the record, we find appellant has failed to establish that he
was prejudiced. Even if appellant’s objection to joinder had been properly renewed and
even if the cases had been severed, we find that the evidence of each crime was simple
and direct. These two cases consisted of two distinct traffic stops, which occurred on
two different dates. The state presented the cases in chronological order. Moreover, the
traffic stops were conducted by different law enforcement agencies. RTA officers
conducted the February traffic stop, and Cleveland police officers conducted the
November traffic stop. Taken together, these facts would assist the jury in
differentiating between the two traffic stops.
{¶59} In 614900, the jury found appellant guilty of two counts, but not guilty of
one of the counts. The jury’s verdict demonstrates that they were able to separate the
evidence and the charges associated with each traffic stop.
{¶60} Appellant appears to make the argument that because he was not provided
with notice of the motion for joinder he was prejudiced. First, we find no requirement
that the state was required to file a written motion for joinder. Second, we do not see
how appellant was prejudiced by a lack of notice nor has appellant demonstrated how he
was prejudiced by a lack of notice. Indeed, both of appellant’s attorneys were given an
opportunity to be heard on the motion for joinder and both attorneys objected to the
joinder. (Tr. 65-66.)
{¶61} Accordingly, appellant’s fourth assignment of error is overruled.
E. Evid.R. 404(B)
{¶62} In his fifth assignment of error, appellant argues that the trial court erred
when it admitted other acts testimony. Appellant “is attempting to force the state to
undertake the Evid.R. 404(B) analysis under the joinder analysis.” State v. Harris, 8th
Dist. Cuyahoga No. 104833, 2017-Ohio-2985, ¶ 10. “Evid.R. 404(B) precludes the
introduction of other crimes, wrongs, or acts to prove conformity with that character.”
Id. The state introduced the evidence of the individual crimes to prove each individual
crime at trial. To this end, appellant’s arguments relative to Evid.R. 404(B) are
misplaced. As this court noted in Harris,
[t]he evidence was not presented solely to prove conformity with the
defendant’s character. State v. Herring, 8th Dist. Cuyahoga No. 104441,
2017-Ohio-743, ¶ 12, citing State v. Williams, 134 Ohio St.3d 521,
2012-Ohio-5695, 983 N.E.2d 1278. The primary issue in this case is not
Evid.R. 404(B) evidence; it is the propriety of the joinder. If error
occurred in joining the two cases for trial, the admissibility of the Evid.R.
404(B) evidence is moot. On the other hand, if there is no reversible error
with respect to the joinder, then Evid.R. 404(B) does not preclude the
introduction of evidence for each individual crime. If we concluded
otherwise, the state would have been precluded from presenting any
evidence to prove the individual criminal charges.
Id. at ¶ 10. As such, appellant’s arguments in this regard are without merit.
{¶63} Accordingly, appellant’s fifth assignment of error is overruled.
F. Court Costs
{¶64} In appellant’s sixth assignment of error, he argues that the trial court erred
by ordering him to pay court costs in the sentencing journal entries, without ordering such
costs in open court at the sentencing hearing. Although we find that appellant’s
argument has merit, to the extent that appellant argues that we should vacate the trial
court’s imposition of court costs, we do not agree.
{¶65} The Ohio Supreme Court has recently ruled on this precise issue in State v.
Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028, ¶ 263. The court noted
that the trial court “retains jurisdiction to waive, suspend, or modify the payment of the
costs of prosecution * * * at the time of sentencing or at any time thereafter.” (Emphasis
deleted.) Id. at ¶ 265, citing R.C. 2947.23(C). As such, appellant can move the trial
court at any time to waive the payment of costs. A remand from this court is not
required. See Beasley at ¶ 265.
{¶66} Accordingly, appellant’s sixth assignment of error is overruled.
III. Conclusion
{¶67} The trial court did not err in denying appellant’s motion to suppress.
Appellant’s convictions were supported by sufficient evidence and were not against the
manifest weight of the evidence. Further, the trial court did not commit plain error when
it granted the state’s motion to join appellant’s two cases for purposes of trial. The state
introduced the evidence of the individual crimes to prove each individual crime at trial
and therefore, an argument pursuant to Evid.R. 404(B) is misplaced. Although the trial
court erred by imposing court costs in its sentencing journal entries without ordering
appellant to pay court costs in open court at sentencing, the trial court retains jurisdiction
to waive court costs, and thus, appellant can move the trial court at any time to request
such a waiver.
{¶68} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s convictions having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
MARY EILEEN KILBANE, A.J., and
MICHELLE J. SHEEHAN, J., CONCUR