State v. Fenderson , 2022 Ohio 1973 ( 2022 )

[Cite as State v. Fenderson, 2022-Ohio-1973.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
ERIE COUNTY
State of Ohio Court of Appeals No. E-21-018
Appellee Trial Court No. 2019 CR 0393
v.
Takye S. Fenderson DECISION AND JUDGMENT
Appellant Decided: June 10, 2022
*****
Kevin J. Baxter, Erie County Prosecuting Attorney, and
Kristin R. Palmer, Assistant Prosecuting Attorney, for appellee.
Henry Schaefer, for appellant.
*****
OSOWIK, J.
{¶ 1} Appellant, Takye S. Fenderson, appeals the judgment of the Erie County
Court of Common Pleas, convicting him following a jury trial of one count of possession
of drugs, one count of trafficking in drugs, and one count of corrupting another with
drugs. For the reasons that follow, we affirm, in part, and reverse, in part.
I. Facts and Procedural Background
{¶ 2} On November 14, 2019, the Erie County Grand Jury indicted appellant on
four counts, including one count of possession of a fentanyl-related compound in
violation of R.C. 2925.11(A) and (C)(11)(b), a felony of the fourth degree, one count of
trafficking in a fentanyl-related compound in violation of R.C. 2925.03(A)(1) and
(C)(9)(c), a felony of the fourth degree, one count of receiving stolen property in
violation of R.C. 2913.51(A) and (C), a felony of the fifth degree, and one count of
having weapons while under disability in violation of R.C. 2923.13(A)(2) and (B), a
felony of the third degree. Later, on February 12, 2020, the Erie County Grand Jury
indicted appellant on a fifth count, corrupting another with drugs in violation of R.C.
2925.02(A)(3) and (C)(1), a felony of the second degree. Prior to trial, the count of
receiving stolen property was dismissed.
{¶ 3} Appellant was initially represented by a public defender. On January 3,
2020, appellant retained attorney Jonathan McGookey to represent him. McGookey
moved for leave to withdraw as counsel on April 9, 2020, which the trial court granted.
The public defender re-entered his appearance on May 18, 2020. On June 11, 2020,
appellant retained attorney Michael Duff to represent him. On July 10, 2020, Duff
moved for leave to withdraw as counsel, which the trial court granted. On July 27, 2020,
appellant retained attorney R.J. Budway.
2.
{¶ 4} On December 15, 2020, the matter was scheduled for a jury trial beginning
on May 17, 2021.
{¶ 5} On March 19, 2021, Budway moved for leave to withdraw as counsel. On
the same day, he also moved for leave to file pre-trial motions to suppress and for a
change of venue. A hearing was held on March 23, 2021. At the hearing, it was
discussed that following Budway’s agreement to represent appellant, appellant was
indicted in a separate case on several counts, including murder, which added obvious
complexity to Budway’s representation of appellant.1 Budway argued that appellant was
not meeting his contractual obligations, and that he needed to be paid within one week in
order to be able to adequately prepare for trial. Appellant argued that he was or would be
making payments to Budway, and the original agreement was that he would pay Budway
before trial. Furthermore, appellant argued that none of his attorneys had filed relevant
motions, such as a motion to suppress, despite his request to do so. The court responded
to appellant, “[H]e’s telling you right now that he needs the money within a week, and if
you can’t come up with it, then I’m sorry. I can’t make him stay on this case.” After the
state emphasized that the court could force Budway to stay on the case, and noted the
court’s rule that another attorney has to come on before the current attorney could
withdraw, the court informed appellant that Budway was representing him on the case
1
In case No. 2020-CR-0046, appellant was originally indicted on February 12, 2020,
with one count of having weapons while under disability, and one count of tampering
with evidence. On August 20, 2020, appellant was indicted on additional charges of
murder, involuntary manslaughter, and tampering with evidence.
3.
until another attorney entered an appearance. The trial court ended the hearing by giving
appellant one week to meet his contractual obligation to Budway, and two weeks to file
any pre-trial motions.
{¶ 6} No motions were filed by appellant within the two weeks. On May 10,
2021, one week before the scheduled trial date, the trial court denied Budway’s
March 19, 2021 motion to withdraw. The next day, appellant filed a motion to suppress
evidence discovered during the search of a vehicle. The trial court denied the motion on
May 13, 2021, finding that it was untimely.
{¶ 7} Ultimately, the matter proceeded to a four-day jury trial beginning on
May 17, 2021. Prior to voir dire, appellant orally moved for a continuance. Budway
explained that almost immediately following the March 23, 2021 hearing, appellant
requested his case file, which Budway gave to him. Budway did not hear anything
further from appellant, and assumed that appellant would be retaining new counsel.
Budway then described that on April 27, 2021, he was at court for a separate case, and
discussed the matter of his representation of appellant with the court and the state.
Budway learned that the trial court was not going to allow him to withdraw, and that he
would proceed as appellant’s counsel either as private counsel, or as his court-appointed
attorney. Around that time, Budway also received supplemental discovery from the state
in preparation of trial. Budway contacted appellant, and met with him twice in
preparation of trial. Budway argued to the court that he has spent most of his time since
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April 27, 2021, attempting to get the case ready for trial, but that he has not had the
opportunity to go over the evidence as thoroughly as he would have liked.
{¶ 8} Upon consideration, the trial court commented that appellant has known of
the trial date for many months, and did nothing. In particular, despite requesting the case
file, appellant did not hire a new lawyer, nor did appellant return to the court and ask for
a lawyer to be appointed. Therefore, the court denied appellant’s oral motion for a
continuance.
{¶ 9} At the trial, the following evidence was presented.2 Officer Richard
Henderly of the Perkins Township Police Department testified that on the morning of
August 22, 2019, he responded to a call of an unresponsive male in a home in Erie
County. When he arrived at the scene, he was led to an upstairs bedroom where a man
was crying on top of another man. The man laying underneath, later identified as 26-
year-old Joseph Morgan, appeared to not be breathing and there was red foam coming
from his nose and mouth, and which was all over his chest. Joseph was pronounced dead
at the scene. The man crying on top of Joseph was his father, Monte Morgan.
{¶ 10} Monte testified that Joseph had recently moved to the area from St. Louis.
In July 2019, Joseph admitted to Monte that he had a problem with drug addiction, and
Monte helped Joseph check in to a rehab center. Joseph completed the inpatient portion
2
Following the trial, the jury acquitted appellant on the charge of having weapons while
under disability. That charge is not a subject of this appeal, and thus we will not discuss
the evidence that was presented as it relates to that charge.
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of the rehab and was released to outpatient services. He was also given a prescription for
Vivitrol.
{¶ 11} Monte testified that sometime around Joseph’s stay in rehab, he was
driving in his truck with Joseph when a car swerved in front of them, honked, and made a
hard left into a parking lot as if trying to get Monte to pull into the parking lot as well. A
second or two later, Joseph’s phone rang, and Monte overheard Joseph speaking with the
person who had just swerved in front of them. Joseph explained to his father that it was a
friend from “the Tims”—a local apartment complex—that he goes and visits. Monte
identified the driver of the car as appellant.
{¶ 12} On August 21, 2019, Joseph had a fight with his girlfriend, with whom he
had recently had a child, regarding the fact that his name was not listed on his baby’s
birth certificate. Joseph’s girlfriend obtained a restraining order against him, and so that
night Joseph stayed over at Monte’s house. Joseph shared a room with “CJ,” Joseph’s
cousin, who also was staying at Monte’s house. Monte testified that he last saw Joseph
around midnight when Monte woke up and went into the kitchen to get a snack and a
drink. Monte saw Joseph sitting in the kitchen with his phone in his hand and his hand
on his head, looking lost and depressed. Monte, knowing of the potential for relapse,
went to Joseph and put his arm around him, and put his head against Joseph’s, and told
Joseph to stay strong and that they would get through the situation.
6.
{¶ 13} The next morning, Monte was awoken by CJ, who told him that something
was wrong with Joseph. When Monte entered the room, he grabbed Joseph and realized
that Joseph’s body was cold. Monte immediately knew that Joseph was dead.
{¶ 14} Monte later met with police detectives, and turned over Joseph’s phone,
which he found in the bed with Joseph. A few days later, Monte summoned the strength
to go into Joseph’s room again. Monte picked up the pair of pants that Joseph was
wearing the night before he died. Inside one of the pockets were two blue pills. Monte
took those pills out of the house and called the police detective.
{¶ 15} Katie McKitrick, the Director of Public Health Nursing at the Erie County
Health Department testified that Joseph began voluntary inpatient rehab on July 30, 2019,
and was released on August 6, 2019. Upon his release, Joseph was given a 30-day supply
of an oral form of Vivitrol. He then had a follow-up appointment on August 15, 2019.
Joseph had an additional appointment scheduled for August 23, 2019, the day after he
died.
{¶ 16} CJ testified that he became aware that Joseph had a drug problem in July
2019. On several occasions, CJ would accompany Joseph to the Tims. CJ testified that
typically he would ride with Joseph over to the Tims, and once there, Joseph would exit
the vehicle and meet up with appellant. On one of those occasions, Joseph introduced CJ
to appellant. CJ also testified that one time he went with Joseph to a bar in Fremont,
which CJ assumed Joseph went into to purchase some items.
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{¶ 17} CJ explained that he first learned of appellant in April or May 2019, when
Joseph returned home from the Convenient Store. Joseph told CJ that he was standing in
line when he was approached by appellant. According to CJ, appellant told Joseph that
he had heard about him, and wanted Joseph “to stop going through the middleman and
just come through him directly.”
{¶ 18} Perkins Township Police Detective Joe Rotuno testified that he responded
to the call of an unresponsive male at Monte’s house. Rotuno testified that while there,
he recovered a cell phone that was in Joseph’s bed at the time he died. The phone was
unlocked when he found it, and as Rotuno was examining the contents of the phone, he
identified text messages that he understood to be indicative of a drug transaction.
Specifically, the text messages began on the evening of August 21, 2019, and continued
into the early morning hours of August 22, 2019. The text messages detailed plans to
meet, with Joseph stating “I’mma come meet chu I only need 2 for now.” Seven minutes
later, at 12:48 a.m., Joseph texted “leem know for a crash out fam.” Two minutes later,
at 12:50 a.m., Joseph received an incoming call from the same number that he had been
exchanging text messages with. The incoming call lasted 27 seconds. Seven minutes
later, at 12:57 a.m., Joseph made a two-second outgoing phone call to the same number,
followed by an outgoing phone call to the same number at 12:58 a.m., which lasted four
minutes and three seconds.
8.
{¶ 19} Rotuno testified that he then organized a controlled buy on August 23,
2019. Using Joseph’s phone, Rotuno texted the same phone number, asking for the
“same as last.” Rotuno received an immediate response, “Bet.” Rotuno then texted the
phone number at 2:04 p.m., “I’ll be at Convenient in twenty u good.” Rotuno received a
response at 2:05 p.m., “Yessir.” At 2:16 p.m., Rotuno received another response asking
“You sure?” Rotuno replied, “Yeah, got 200 now u bump it up.” The other phone
number responded, “You know you my guy how far are you.” After additional
messaging, at 2:32 p.m., Rotuno texted “I’m here now.” The other phone number
responded at 2:33 p.m., “Tims?” Rotuno immediately texted back, “Convenient, down
from my dads.” At 2:34 p.m., Rotuno received a reply, “Come the Tims.” Rotuno
responded that he could not go to the Tims because he had his eight-year-old cousin with
him. At 2:36 p.m., the other phone replied, “Here I come.”
{¶ 20} As Rotuno was reading the final text, he looked up and saw appellant
coming in a silver car with a cell phone in his hand, heading towards the Convenient
Store. Rotuno testified that he had previous knowledge that appellant did not have a
driver’s license. Rotuno observed appellant park in front of the Convenient Store and
wait for about 20 or 30 seconds with the car still running. Appellant then exited the car
and approached the doors of the Convenient Store. Appellant opened the doors and
looked in the store, but did not go into the store. Rotuno testified that it appeared that
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appellant was looking for someone in the store. Rotuno then observed appellant head
back towards the silver car.
{¶ 21} At that point, Rotuno made the decision to detain appellant. Rotuno
testified, however, that as he was pulling into the parking lot in his unmarked vehicle,
appellant recognized him. Appellant then walked past the silver car and headed towards
the side of the building, where Rotuno believed appellant would have started running.
Rotuno and Detective Ron Brotherton of the Sandusky Police Department were able to
detain appellant before that happened.
{¶ 22} According to Rotuno, as soon as he brought up the silver car after detaining
appellant, appellant stated, “I wasn’t driving that car. I don’t know anything -- that’s not
my car.” Rotuno then obtained the cell phone that was in appellant’s hand. Using his
own phone, Rotuno called the phone number that he had been texting moments earlier to
set up the controlled buy, and appellant’s phone rang.
{¶ 23} Rotuno then walked by the silver car, which was still running, and
observed suspected narcotics that appeared to be packaged for sale, sitting in plain view
on the center console of the vehicle. Rotuno seized the narcotics, which he described as
10 pills that were inscribed like pharmaceutical prescription pills, with the inscription “M
30.”
{¶ 24} A few days later, on or around Tuesday, August 27, 2019, Rotuno received
a message from Monte, informing him that Monte found two pills in Joseph’s bedroom.
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When Rotuno went to retrieve the pills, Monte was not home, but his brother-in-law
showed Rotuno where Monte had secured the pills in the garage. Rotuno testified that
the two pills appeared to be almost identical to the pills recovered from the silver car.
{¶ 25} On cross-examination, Rotuno acknowledged that the text messages
between Joseph and appellant did not mention any drugs by name, did not mention a
quantity other than the number “2”, and did not mention a price. Rotuno also admitted
that there were no witnesses who observed appellant provide the drugs to Joseph on the
night that Joseph died. Furthermore, Rotuno acknowledged that he did not question any
of the people living in the house with Joseph as to whether they provided drugs to him.
Finally, Rotuno identified a police report from the Ohio State Highway Patrol that
indicated that appellant’s acquaintance, A.P.—who was also the owner of the silver car—
was stopped on June 28, 2019, and was found to be in the possession of five pills that
were marked “M 30.”
{¶ 26} Ryan Sorrell also testified for the state. Sorrell was an inmate at Marion
Correctional Institution. In exchange for his testimony, Sorrell was offered to serve the
remainder of his prison sentence at the Erie County Jail. Sorrell testified that while in
prison, he heard appellant say something to the effect of “How was I supposed to know it
was gonna kill him. He was my best friend.” Sorrell clarified that appellant was
speaking about the pressed pills, and that appellant did not know that there was
something in the pills other than what was supposed to be in them.
11.
{¶ 27} Emily Miller, a forensic scientist with the Ohio Bureau of Criminal
Investigation, testified that she analyzed two separate submissions from the Perkins
Township Police Department. The first was a group of ten pills, which she described as
round and light-green in color. The pills were marked “M 30,” which she testified was
associated with Oxycodone, but she noticed that they were slightly irregular in shape.
Miller’s analysis of the pills discovered that they contained fentanyl. The ten pills had a
combined weight of 1.10 grams, plus or minus .04 grams. The second submission that
Miller analyzed was a group of two pills that were similarly round and light-green in
color. The two pills were also marked “M 30,” and also tested positive for fentanyl. The
two pills had a combined weight of .22 grams, plus or minus .04 grams. On cross-
examination, Miller testified that she did not compare the two groups of pills against each
other.
{¶ 28} Dr. Cynthia Beisser, a deputy coroner for the Lucas County Coroner’s
Office, testified that she conducted the autopsy on Joseph. Based upon her examination
and the toxicology results, she determined to a reasonable degree of medical certainty
that Joseph died of fentanyl toxicity.
{¶ 29} The state’s final witness was Dr. Robert Forney, Jr., a forensic toxicologist
for the Lucas County Coroner’s Office. Dr. Forney testified that based upon the levels of
fentanyl and norfentanyl in Joseph’s body, as well as the amount of pulmonary edema
present, he concluded with a reasonable degree of scientific certainty that Joseph died of
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fentanyl toxicity, and that Joseph’s death occurred within a short time of his ingesting the
drugs.
{¶ 30} Following the state’s presentation of evidence, appellant called one witness
in his defense. Kyra Amison is appellant’s mother. Amison testified that appellant did
not live at the apartment in the Tims, which was actually rented by appellant’s sister.
Instead, according to Amison, appellant lived in Toledo with his grandmother.
{¶ 31} After appellant’s presentation of evidence, appellant moved for an acquittal
pursuant to Crim.R. 29, which the trial court denied. The court then received closing
arguments and instructed the jury, following which the jury returned with a verdict of
guilty on the counts of possession, trafficking, and corrupting another with drugs, and not
guilty on the count of having a weapon while under disability.
{¶ 32} At sentencing, the state recommended that the counts of possession and
trafficking be merged. However, rather than merging those counts, the trial court ordered
appellant to serve 18 months in prison on each count, to be served concurrently with each
other. The court further ordered those 18 months to be served consecutively to the
maximum indefinite sentence of 8 to 12 years on the count of corrupting another with
drugs.
II. Assignments of Error
{¶ 33} Appellant has timely appealed his judgment of conviction, and now asserts
six assignments of error for our review:
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1. The Trial Court Erred When it Failed to Merge Counts One and
Two of the Indictment at Sentencing.
2. The Trial Court Erred When it Failed to Grant Mr. Fenderson’s
Motion for a Mistrial After an Altercation that Occurred Within the
Presence of the Jury.
3. The Trial Court Erred in not Granting Mr. Fenderson’s Motion
for a Continuance.
4. Counsel was Ineffective in Filing Mr. Fenderson’s Motion to
Suppress out of Time.
5. The Conviction was Against the Manifest Weight of the Evidence
and not Supported by Sufficient Evidence.
6. Mr. Fenderson was Deprived of his Rights to Due Process and
Equal Protection When he was Convicted by an All-White Jury.
III. Analysis
{¶ 34} For ease of discussion, we will address appellant’s assignments of error in
chronological order from when they arose.
A. Ineffective Assistance
{¶ 35} In his fourth assignment of error, appellant argues that his trial counsel was
ineffective for failing to timely file his motion to suppress.
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{¶ 36} To prove a claim of ineffective assistance, appellant must demonstrate that
counsel’s performance fell below an objective standard of reasonableness, and a
reasonable probability exists that, but for counsel’s error, the result of the proceedings
would have been different. Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984). “The object of an ineffectiveness claim is not to
grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice * * * that course should be followed.” Id. at 697.
Applicable here, “[f]ailure to file a motion to suppress constitutes ineffective assistance
of counsel only if, based upon the record, the motion would have been granted.” State v.
Hernandez, 6th Dist. Lucas Nos. L-06-1388, L-06-1389, 2009-Ohio-386, ¶ 83, quoting
State v. Kuhn, 9th Dist. Lorain No. 05CA008859, 2006-Ohio-4416, ¶ 11.
{¶ 37} Appellant argues that had counsel filed the motion, the evidence seized
from appellant’s phone and the pills discovered in the silver car would have been
suppressed because the state could not justify appellant’s arrest and the search of the car.
{¶ 38} The Fourth Amendment to the United States Constitution states, “The right
of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.” “Article I, Section 14 of the
Ohio Constitution contains almost identical language, and we have interpreted it as
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affording at least the same protection as the Fourth Amendment.” State v. Leak, 145
Ohio St.3d 165, 2016-Ohio-154, 47 N.E.3d 821, ¶ 13.
{¶ 39} “The touchstone of the Fourth Amendment is reasonableness.” Id. at ¶ 14,
quoting Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991).
“Whether a search and seizure is unreasonable within the meaning of the Fourth
Amendment depends upon the facts and circumstances of each case.” Id., quoting South
Dakota v. Opperman, 428 U.S. 364, 375, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976).
“Under the Fourth Amendment, warrantless searches are per se unreasonable without
prior approval by a judge or magistrate, subject to only a few specific exceptions.” Id. at
¶ 15.
{¶ 40} Here, appellant challenges both his detention by the officers and the
subsequent search of his vehicle. We will address each in turn, beginning with
appellant’s detention.
{¶ 41} “Under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), a
police officer who lacks probable cause to arrest may, consistent with the Fourth
Amendment, make an investigatory stop, including a traffic stop, of a person if the officer
has reasonable suspicion to believe that the person is or is about to be engaged in criminal
activity.” State v. Tidwell, 165 Ohio St.3d 57, 2021-Ohio-2072, 175 N.E.3d 527, ¶ 19.
“Reasonable suspicion for a Terry stop ‘is dependent upon both the content of
information possessed by police and its degree of reliability. * * * Both factors—
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quantity and quality—are considered in the totality of the circumstances—the whole
picture, * * *, that must be taken into account when evaluating whether there is
reasonable suspicion.’” (Internal citations omitted) Id. at ¶ 20, quoting Alabama v.
White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). “Police officers may
‘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.”’” Id., quoting United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct.
744, 151 L.Ed.2d 740 (2002).
{¶ 42} Upon review, we find that the officers had reasonable suspicion to stop
appellant, during which stop the officers developed probable cause to arrest him. Rotuno
used Joseph’s phone to contact the person believed to be Joseph’s drug dealer. Based
upon Rotuno’s experience as a narcotics detective, Rotuno set up a drug buy for the
“same as last,” further instructing the suspected dealer to “bump it up,” because he had
“200.” The text messages established a meeting time and set the Convenience Store as
the location for the transaction instead of the Tims. When the suspected dealer messaged
“Here I come,” Rotuno looked up and saw appellant leaving the Tims in a silver car with
a phone in his hand, and heading toward the Convenient Store. Rotuno observed
appellant park the silver car in front of the store, wait for 20-30 seconds, and then exit the
car and look into the store as if he was looking for someone. As he turned around and
left the store, appellant noticed Rotuno. Instead of heading back to the silver car—which
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was still running—appellant began walking away. Based upon this evidence, we hold
that reasonable suspicion existed to conduct a Terry stop of appellant.
{¶ 43} As that stop unfolded, probable cause to arrest appellant developed when
Rotuno called the phone number of the suspected drug dealer that he had been texting,
and appellant’s phone rang, and when the officers noticed pressed pills packaged for sale
sitting on the middle console of the silver car. “A warrantless arrest that is based upon
probable cause and occurs in a public place does not violate the Fourth Amendment [to
the United States Constitution].” State v. Jordan, 166 Ohio St.3d 339, 2021-Ohio-3922,
185 N.E.3d 1051, ¶ 2.
{¶ 44} Therefore, we hold that appellant’s detention and arrest did not violate his
Fourth Amendment right against unreasonable searches and seizures, and as such a
reasonable probability does not exist that a motion to suppress based upon his detention
would have been granted.
{¶ 45} Turning to the search of the silver car, we first note that the observation of
the pressed pills did not constitute a “search.” “Modern understandings of the Fourth
Amendment recognize that it serves to protect an individual’s subjective expectation of
privacy if that expectation is reasonable and justifiable.” State v. Buzzard, 112 Ohio
St.3d 451, 2007-Ohio-373, 860 N.E.2d 1006, ¶ 14. “But if the individual does not act to
preserve that privacy, such as by leaving an object in the plain view of the public, then
the state has not ‘searched’ within the meaning of the Constitution, because the individual
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has exposed those objects to others rather than keeping them to himself.” Id. at ¶ 15.
“Generally, the police are free to observe whatever may be seen from a place where they
are entitled to be.” Id., quoting United States v. Fields, 113 F.3d 313, 321 (2d Cir.1997),
citing Florida v. Riley, 488 U.S. 445, 449, 109 S.Ct. 693, 102 L.Ed.2d 835 (1989).
{¶ 46} In this case, Rotuno and the other officers were entitled to be in the parking
lot of the Convenience Store, where they looked through the window of the silver car and
noticed the pressed pills packaged for sale. The discovery of the pills, within the context
of the totality of the circumstances including the text messages with the suspected drug
dealer and appellant’s appearance and behavior at the Convenience Store, gave the
officers probable cause to believe that the car contained contraband. “Once a law
enforcement officer has probable cause to believe that a vehicle contains contraband, he
or she may search a validly stopped motor vehicle based upon the well-established
automobile exception to the warrant requirement.” State v. Moore, 90 Ohio St.3d 47, 51,
734 N.E.2d 804 (2000), citing Maryland v. Dyson, 527 U.S. 465, 466, 119 S.Ct. 2013,
144 L.Ed.2d 442 (1999); Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 135
L.Ed.2d 1031 (1996) (“If a car is readily mobile and probable cause exists to believe it
contains contraband, the Fourth Amendment thus permits police to search the vehicle
without more.”). Thus, we hold that appellant’s Fourth Amendment rights were not
violated by the search of the silver car, and therefore a reasonable probability does not
exist that a motion to suppress based upon the search of the car would have been granted.
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{¶ 47} Because appellant has failed to demonstrate a reasonable probability exists
that a motion to suppress would have been granted if it had been timely filed by trial
counsel, appellant has not shown sufficient prejudice, and therefore his claim of
ineffective assistance of counsel must fail.
{¶ 48} Accordingly, appellant’s fourth assignment of error is not well-taken.
B. Motion for a Continuance
{¶ 49} In his third assignment of error, appellant argues that the trial court erred
when it denied his motion for a continuance, made on the morning of the start of the trial.
{¶ 50} “The grant or denial of a continuance is a matter which is entrusted to the
broad, sound discretion of the trial judge. An appellate court must not reverse the denial
of a continuance unless there has been an abuse of discretion.” State v. Unger, 67 Ohio
St.2d 65, 67, 423 N.E.2d 1078 (1981). An abuse of discretion connotes that the trial
court’s attitude is unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio
St.2d 151, 157, 404 N.E.2d 144 (1980).
{¶ 51} As recognized by the Ohio Supreme Court in Unger:
In evaluating a motion for a continuance, a court should note, inter
alia: the length of the delay requested; whether other continuances have
been requested and received; the inconvenience to litigants, witnesses,
opposing counsel and the court; whether the requested delay is for
legitimate reasons or whether it is dilatory, purposeful, or contrived;
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whether the defendant contributed to the circumstance which gives rise to
the request for a continuance; and other relevant factors, depending on the
unique facts of each case.
Unger at 67-68.
{¶ 52} In support of his assignment of error, appellant argues that he reasonably
believed that he was unrepresented because he had not paid Budway. He further
contends that he was not contriving to delay the trial in that it was his attorney who was
ineffective for failing to timely file a motion to suppress, and it was the state who
produced discovery on the eve of trial. Finally, appellant argues that the trial court
exacerbated the situation by conveying to appellant that he had to pay Budway or else
Budway would be off of the case, and then later telling Budway outside of the presence
of appellant that Budway would remain on the case either as private or appointed
counsel.
{¶ 53} Applying the considerations in Unger, we find that the trial court did not
abuse its discretion when it denied appellant’s motion for a continuance.
{¶ 54} First, we note that although the length of the requested continuance was
undetermined, it was made on the morning of trial, after witnesses had been subpoenaed
and after the jury had reported. Thus, the inconvenience to all stakeholders was high.
{¶ 55} Second, appellant contributed to the circumstances giving rise to the
request for a continuance. The trial date had been set for approximately five months.
21.
During this time, appellant’s counsel moved to withdraw because appellant was not
meeting his contractual obligation. Rather than pay counsel, or return to the court and
state that he was indigent, appellant requested his file from Budway and then had no
further contact with him. However, appellant learned at the end of April 2021, that
Budway was still going to represent him in the upcoming trial on May 17, 2021, and so
appellant met with Budway twice between late April and the start of trial. During those
three weeks, appellant did not move for a continuance, but waited until the last possible
moment on the morning of the trial to request a delay.
{¶ 56} Third, although counsel indicated that he would have liked more time to
review the materials and prepare for trial, counsel had been the attorney of record for
approximately 10 months, and had been given a three-week notice that he would be
representing appellant at trial.
{¶ 57} Fourth, and finally, the production of discovery by the state on the eve of
trial was made during the state’s own trial preparation, and primarily consisted of medical
records from Joseph’s detox program that were only marginally relevant to the issues at
trial. Tellingly, appellant has made no argument regarding how he was prejudiced by the
state’s late production of discovery.
{¶ 58} In light of these considerations, we cannot say that the trial court’s decision
was unreasonable, arbitrary, or unconscionable. Therefore, we hold that the trial court
did not abuse its discretion when it denied appellant’s motion for a continuance.
22.
{¶ 59} Accordingly, appellant’s third assignment of error is not well-taken.
C. Mistrial
{¶ 60} In his second assignment of error, appellant argues that the trial court erred
when it denied his motion for a mistrial.
{¶ 61} “The granting or denial of a motion for mistrial rests in the sound discretion
of the trial court and will not be disturbed on appeal absent an abuse of discretion.” State
v. Treesh, 90 Ohio St.3d 460, 480, 739 N.E.2d 749 (2001). “A mistrial should not be
ordered in a criminal case merely because some error or irregularity has intervened.” Id.,quoting State v. Reynolds, 49 Ohio App.3d 27, 33, 550 N.E.2d 490 (2d Dist.1988).
Instead, “[t]he granting of a mistrial is necessary only when a fair trial is no longer
possible.” Id.{¶ 62} Relevant here, on the second day of trial, during a recess, an altercation
between members of Joseph’s family and members of appellant’s family took place in
front of six of the jurors. Following the recess, the court addressed the issue:
[B]efore we proceed and bring the families in, I want to make sure --
I know there was an incident, um, some altercation between the families.
Obviously there’s a lot of tension and high emotions running through both
sides. I want to make sure that everyone here would be able to not let
anything that they saw in that incident, if you did see anything, interfere
with your judgment in this case, and I want to be assured that you would be
23.
able to follow the law and make your decisions based upon the evidence in
this case and not anything that you saw outside of the Courtroom.
The court then individually addressed the jurors, and each juror indicated that he or she
would be able to make a decision based upon the evidence and not what occurred outside
of the courtroom. Notably, Juror No. 6 and Alternate No. 2 gave “(No audible
response.)” However, when the parties were arguing the motion for a mistrial, the state
commented that the court instructed all of the jurors that they are to follow the evidence
and only decide the case based upon the evidence, “[A]nd the Court went further and
individually voir dired each and every juror, including the alternates, and they all
indicated that they could do so.” Immediately thereafter, the court replied, “I believe
that’s correct and so we’ll proceed.”
{¶ 63} In his brief, appellant argues that Juror No. 6 and Alternate No. 2 did not
assent to the court’s instruction on the record. We disagree. Although the record does
not record an audible response from those two jurors, the prosecutor’s uncontested
statement, and the court’s uncontested affirmance of that statement, demonstrate that the
jurors agreed with the trial court’s instruction.
{¶ 64} Appellant also argues that the prejudice created by the altercation was self-
evident from the fact that the court needed to give a curative instruction. According to
appellant, if there was no prejudice, then a curative instruction would not have been
necessary. Again, we disagree. The relevant inquiry is not whether appellant was
24.
prejudiced by the event, but whether appellant was materially prejudiced and a fair trial
rendered impossible after the curative instruction is considered. Indeed, “curative
instructions may not always sufficiently eliminate the prejudicial impact * * *.” State v.
Marshall, 2014-Ohio-4677, 22 N.E.3d 207, ¶ 32 (8th Dist.), quoting State v. Westwood,
4th Dist. Athens No. 01CA50, 2002-Ohio-2445, ¶ 41. However, in this case, we find that
the curative instruction was sufficient.
{¶ 65} Notably, the record does not contain a description of the altercation, and we
do not know what occurred, who started it, or how long it lasted. The trial court briefly
addressed the issue and instructed the jury only to consider the evidence and not what
occurred outside of the courtroom. All of the jurors readily agreed that they could do so,
and we presume that jurors will follow the instructions of the court. See State v. Garner,
74 Ohio St.3d 49, 59, 656 N.E.2d 623 (1995) (“A jury is presumed to follow the
instructions, including curative instructions, given it by a trial judge.”). Therefore, we
hold that the trial court did not abuse its discretion when it denied appellant’s motion for
a mistrial.
{¶ 66} Accordingly, appellant’s second assignment of error is not well-taken.
D. Due Process and Racial Bias
{¶ 67} In his sixth assignment of error, appellant asserts that he was denied due
process and the equal protection of rights when he was convicted by an all-white jury.
25.
{¶ 68} Relevant here, following the announcement of the guilty verdicts, appellant
burst out:
MR. FENDERSON: I didn’t even have enough time for this case.
That ain’t even fair, man. That ain’t even fair, dog. That ain’t even f***in’
fair, man, takin’ my life for no reason and I just did all that time, man. This
is f***in’ crazy, man.
***
MR. FENDERSON: This is so --
***
MR. FENDERSON: -- crazy, man. I just did all that time.
***
MR. FENDERSON: I just did all that time, man. I didn’t even do
nothin’, man. I don’t bother nobody.
***
MR. FENDERSON: That’s messed up, man. They took my life,
man. They took my life for no reason.
***
SPECTATOR: Don’t worry about it.
MR. FENDERSON: What did I do? (Inaudible) make me go to
Court (inaudible) go to trial (inaudible).
26.
SPECTATOR: I mean, what kind of jury did you have.
MR. FENDERSON: All white, all old.
SPECTATOR: You didn’t have a chance. Shoot, they have all
white jury. You never get a chance.
{¶ 69} In his brief, appellant does not make an argument in support of this
assignment of error, but rather recognizes the precedent set forth in State v. Williams, 7th
Dist. Columbiana No. 19 CO 0010, 2021-Ohio-718, ¶ 13, as well as many other cases in
a similar line, which he notes “allow for the conviction of an African American by an all-
white jury.”
{¶ 70} “Where an appellant fails to develop an argument in support of his
assignment of error, this Court will not create one for him.” State v. Franks, 2017-Ohio-
7045, 95 N.E.3d 773, ¶ 16 (9th Dist.). “If an argument exists that can support [an]
assignment of error, it is not this [C]ourt’s duty to root it out.” (Brackets sic.) Id.,quoting Cardone v. Cardone, 9th Dist. Summit No. 18349, 1998 WL 224934, *8 (May 6,
1998).
{¶ 71} Accordingly, because appellant does not advance an argument in support of
his assignment of error, appellant’s sixth assignment of error is not well-taken.
E. Sufficiency and Manifest Weight
{¶ 72} In his fifth assignment of error, appellant argues that his convictions are
based upon insufficient evidence, and are against the manifest weight of the evidence.
27.
{¶ 73} Insufficiency and manifest weight are distinct legal theories, although
appellant addresses them together. In reviewing a record for sufficiency, “[t]he 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. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492(1991), paragraph two of the syllabus. In contrast, when reviewing a manifest weight
claim,
[t]he court, reviewing the entire record, 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. The discretionary power to grant a
new trial should be exercised only in the exceptional case in which the
evidence weighs heavily against the conviction.
State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 220, quoting
State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).
{¶ 74} Here, appellant was convicted of possession of drugs in violation of R.C.
2925.11(A), which provides, “No person shall knowingly obtain, possess, or use a
controlled substance or a controlled substance analog.” Appellant contests that he
“possessed” the drugs. “‘Possess’ or ‘possession’ means having control over a thing or
28.
substance, but may not be inferred solely from mere access to the thing or substance
through ownership or occupation of the premises upon which the thing or substance is
found.” R.C. 2925.01(K). Possession may be actual or constructive. “Actual possession
occurs when the defendant has the items within his immediate physical control, whereas
constructive possession occurs when the defendant is able to exercise dominion and
control over an item, even if the individual does not have the item within his immediate
physical possession.” State v. Shelby, 2019-Ohio-1564, 135 N.E.3d 508, ¶ 24 (6th Dist.),
citing State v. Fykes, 6th Dist. Wood No. WD-07-072, 2009-Ohio-2926, ¶ 36. “In order
for constructive possession to exist, there must be evidence demonstrating that the
defendant was conscious of the presence of the object. Although a defendant’s mere
proximity to an item is in itself insufficient to establish constructive possession,
proximity to the item may constitute some evidence of constructive possession.” Id.,quoting Fykes at ¶ 36. “A court must look at all of the attendant facts and circumstances
in order to determine if a defendant knowingly possessed a controlled substance.” Id.{¶ 75} In support of his assignment of error, appellant argues that he did not
possess the drugs because the drugs were found in a car belonging to his friend, A.P., and
it is reasonable to conclude that A.P. is the owner of the items in the car. Appellant
further argues that there is no evidence that he exercised dominion or control over the
drugs.
29.
{¶ 76} When looking at all of the attendant facts and circumstances, we find both
that the evidence is sufficient to support the conviction, and that the conviction is not
against the manifest weight of the evidence. Here, Rotuno engaged in a text message
conversation with Joseph’s suspected drug dealer, and set up a potential drug transaction.
Immediately after the suspected drug dealer messaged, “Here I come,” appellant was
observed leaving the Tims and driving to the Convenient Store where the transaction was
to take place, with a phone in his hand. Appellant was the only occupant of the vehicle.
When appellant arrived at the store, he waited in his car for 20-30 seconds, and then went
to the front door of the Convenient Store and looked inside, as if he was looking for
someone. As appellant walked back to his car, he noticed Rotuno. Appellant then
continued walking past the running car. When he was stopped, appellant lied, and denied
that he was driving the car. Rotuno then called the phone number that he had texted to
set up the drug transaction, and appellant’s phone rang. Inside of the car, in plain view
on the center console were pressed pills packaged for sale, which were virtually identical
to the pills that were found in the pocket of the pants that Joseph was wearing on the
night that he died.
{¶ 77} From this evidence, it is clear that appellant exercised dominion and
control over the pills, which he brought with him for the apparent purpose of selling them
to who he believed was Joseph. Therefore, we hold that appellant’s conviction for
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possession of drugs is not based on insufficient evidence, nor is it against the manifest
weight of the evidence.
{¶ 78} Appellant was also convicted of trafficking in drugs in violation of R.C.
2925.03(A)(1), which states, “No person shall knowingly do any of the following: (1)
Sell or offer to sell a controlled substance or a controlled substance analog.” Appellant
argues that the state did not prove that he sold or offered to sell the drugs because none of
the text messages mentioned drugs or an amount of money for a transaction. Moreover,
appellant argues that a drug transaction never occurred.
{¶ 79} Despite appellant’s protestations to the contrary, the text messages in this
case do support an offer to sell. The messages identified the drug as “same as last,” and
identified an amount as $200. The messages further established a meeting time and
location for the transaction. From the context of the messages, the only reasonable
conclusion to be drawn is that the parties were organizing a meeting for the purpose of
engaging in a drug transaction. No other alternative explanation was given or suggested.
This conclusion is confirmed by the fact that appellant arrived at the meeting location
with drugs packaged for sale. Therefore, we hold that appellant’s conviction for
trafficking in drugs is not based on insufficient evidence, nor is it against the manifest
weight of the evidence.
{¶ 80} Finally, appellant was convicted of corrupting another with drugs in
violation of R.C. 2925.02(A)(3), which states, “No person shall knowingly do any of the
31.
following: * * * (3) By any means, administer or furnish to another or induce or cause
another to use a controlled substance, and thereby cause serious physical harm to the
other person, or cause the other person to become drug dependent.” Appellant argues
that there is no evidence linking drugs sold by him to Joseph’s death. Appellant points to
the text message sent shortly before Joseph died, where Joseph said “I’mma come meet
chu I only need 2 for now.” However, after Joseph died, two pills were found in Joseph’s
pocket. Appellant contends that the state cannot show that Joseph died from pills that
were still in his pocket.
{¶ 81} Upon review, we find that the evidence is sufficient to support the
conviction, and that the conviction is not against the manifest weight of the evidence.
Here, although Joseph only mentioned that he needed “2” in his text message, we note
that he and appellant spoke on the phone for four minutes. It is not unreasonable to
conclude that Joseph messaged appellant stating that he needed drugs because Joseph did
not have any at the time. Joseph then obtained the same type of drugs that were found in
appellant’s car after appellant responded to the request for the “same as last.” Finally,
Joseph died from fentanyl toxicity shortly after ingesting the drugs, and the pills provided
to Joseph from appellant contained fentanyl.
{¶ 82} When viewing this evidence in a light most favorable to the prosecution,
we find that a rational trier of fact could conclude beyond a reasonable doubt that
appellant provided the drugs to Joseph that killed him. Likewise, sitting as a thirteenth
32.
juror, we find that the jury did not clearly lose its way and create a manifest miscarriage
of justice when it found the same. Therefore, we hold that appellant’s conviction for
corrupting another with drugs is not based on insufficient evidence, nor is it against the
manifest weight of the evidence.
{¶ 83} Accordingly, appellant’s fifth assignment of error is not well-taken.
F. Merger
{¶ 84} Finally, in his first assignment of error, appellant argues that the trial court
erred when it failed to merge his convictions for possession of drugs and trafficking in
drugs.
{¶ 85} The Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution protects against, among other things, multiple punishments for the same
offense. State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 10. R.C.
2941.25(A) codifies that protection, and provides, “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.” We review the trial court’s determination under R.C.
2941.25(A) de novo. State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983
N.E.2d 1245, ¶ 1.
{¶ 86} In this case, appellant argues that his convictions for possession of drugs
and trafficking in drugs constituted allied offenses of similar import, and should have
33.
been merged at sentencing. The state, for its part, agrees, noting that both convictions
involved the same drugs from the same transaction, that there was no evidence appellant
intended to retain a portion of the drugs for his own personal use, that the victim of both
offenses was society in general, and that the harm from the offenses was not separate and
identifiable. We concur, and we hold that the trial court erred when it failed to merge
appellant’s convictions for possession of drugs and trafficking in drugs.
{¶ 87} Accordingly, appellant’s first assignment of error is well-taken.
IV. Conclusion
{¶ 88} For the foregoing reasons, we find that substantial justice has not been done
the party complaining, and the judgment of the Erie County Court of Common Pleas is
affirmed, in part, and reversed, in part. Appellant’s sentences for possession of drugs and
trafficking in drugs are reversed, and the matter is remanded to the trial court for
resentencing on those offenses in accordance with this decision. The judgment of the
Erie County Court of Common Pleas is affirmed in all other respects. Pursuant to App.R.
24, the parties are ordered to split the costs of this appeal evenly.
Judgment affirmed, in part,
and reversed, in part.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
34.
State of Ohio
v. Takye S. Fenderson
E-21-018
Thomas J. Osowik, J. ____________________________
JUDGE
Christine E. Mayle, J.
____________________________
Myron C. Duhart, P.J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
35.