State v. Howard

[Cite as State v. Howard, 2018-Ohio-1575.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2017-L-083
- vs - :
EVERETT D. HOWARD, SR., :
Defendant-Appellant. :
Criminal Appeal from the Lake County Court of Common Pleas.
Case No. 2016 CR 000502.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor; Teri R. Daniel, and Paul Kaplan, Assistant
Prosecutors, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (For Plaintiff-Appellee).
Brian A. Smith, 755 White Pond Drive, Suite 403, Akron, OH 44320 (For Defendant-
Appellant).
TIMOTHY P. CANNON, J.
{¶1} Appellant, Everett D. Howard, Sr., appeals from the May 31, 2017 judgment
entry of sentence of the Lake County Court of Common Pleas. For the following reasons,
the trial court’s judgment is affirmed.
{¶2} On November 7, 2016, appellant was indicted by the Lake County Grand
Jury on the following charges: two counts of Trafficking in Cocaine, fifth-degree felonies,
in violation of R.C. 2925.03(A)(1) (Count 1 & Count 3) and one count of Trafficking in
Cocaine, a fourth-degree felony, in violation of R.C. 2925.03(A)(1) (Count 2). Each
charge included a forfeiture specification pursuant to R.C. 2941.1417 & R.C. 2981.04.
The charges stemmed from three separate incidents of controlled buys of cocaine that
took place on November 17, November 19, and December 9, 2015.
{¶3} The matter proceeded to a jury trial, at which the following testimony was
presented.
{¶4} Sergeant Brad Kemp of the Lake County Narcotics Agency testified that on
November 3, 2015, officers executed a search warrant at the home of a suspected drug
dealer. Sgt. Kemp testified there were several different types of drugs and drug
paraphernalia in the home. After confronting the occupant of the home, they recruited
him to serve as a confidential informant (“CI”). Sgt. Kemp testified he told the CI that to
get a positive recommendation on his charges, he would have to make controlled buys
for the authorities. The CI provided the authorities with the names of several suppliers,
including an individual who went by the street name of “Little.” Sgt. Kemp indicated no
charges were filed against the CI, but the CI would be prosecuted if he did not produce
for the authorities. Thereafter, the CI participated in several controlled buys from
appellant.
{¶5} The CI testified about his prior criminal history, dating back to 1996 when
he was 19 years old. He explained that in 2015, he was selling drugs to support his own
heroin addiction. He recalled the events of November 3, 2015, when officers searched
his home. He further testified he has been clean for over a year, goes to work every day,
and takes care of his son.
{¶6} During the search of his home, the CI was cooperative with officers and told
them the location of the drugs. The CI indicated he was facing several potential felonies
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based on the amount of drugs found, but he was never arrested in connection with the
search, and no charges had been filed at the time of trial. He testified Sgt. Kemp
approached him about making buys of narcotics in exchange for a good recommendation
regarding the potential charges. The CI understood he would be expected to testify at
trial, and his potential charges would remain unresolved until he had testified against all
the people with whom he did controlled buys. He explained this was his first time testifying
and indicated it was important for him to produce for the authorities.
{¶7} The CI testified he provided the authorities with approximately 5 to 10
names of suppliers he knew or thought he could buy drugs from under controlled
circumstances. Toward the end of the interview, he submitted a person he knew by the
street name of “Little,” who he thought would sell him cocaine. The CI did not know
“Little’s” actual name but had seen him a few times at a friend’s house.
{¶8} On November 17, 2015, the CI met with agents to conduct a series of
controlled buys for various individuals, including “Little.” Prior to the buy with “Little,”
Special Agent 89 showed him a picture of an individual who the CI identified as “Little.”
In court, the CI identified appellant as the man in the picture.
{¶9} The CI contacted a third party to set up the November 17, 2015 buy with
“Little.” In preparation for the buy, the CI was searched by agents and given $50, a
recording device, a body wire, and a video recorder. The CI picked up the third party and
went to meet “Little” at a shopping center. The third party’s phone battery died, and he
used the CI’s phone to call “Little” to let him know they were in the parking lot. The CI
gave the money to the third party, who met “Little” behind the car to make the purchase.
The CI did not turn around but looked in his sideview and rearview mirrors. He saw “Little”
walk up to the back of his vehicle. “Little” was wearing a gray top with bright orange
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stripes. When the third party got back in the car, he had crack cocaine. After the buy,
the CI met with agents, turned over the drugs, and filled out a report.
{¶10} The CI testified he contacted “Little” himself to organize a second buy. The
second buy took place on November 19, 2015, at an apartment complex. The CI was
equipped with recording devices and $60 from the authorities. After the buy, the CI turned
over the purchased drugs to the authorities.
{¶11} After the second buy, “Little” changed his phone number; the CI had to go
through the third party to contact “Little” to set up a third buy. The third buy took place on
December 9, 2015. The CI met with authorities to go through the same process as the
first two buys. After the time and location for the buy was established, “Little” contacted
the CI and the third party to inform them he was unable to meet at that agreed upon time.
While they were waiting to meet “Little” at a later time, the CI drove the third party to buy
heroin. They also went to the third party’s house to pick up a scale because “Little”
needed to weigh out the drugs. They met “Little” at another apartment complex. “Little”
came out to the car to get the scale and went back inside the apartment building, while
the CI and the third party waited in the car. “Little” returned to the car with cocaine and
exchanged it for $100 in cash. Thereafter, the CI went to meet with agents.
{¶12} The prosecutor played a video of each of the three buys for the jury. The
CI described the events of each video and identified “Little” in the videos. The prosecutor
also presented the CI with picture stills from the videos. The CI identified the individual
in those pictures as “Little.” The CI then identified appellant as the individual he knew as
“Little.”
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{¶13} On cross-examination, defense counsel questioned the CI about his
motives for working with the authorities. Defense counsel also questioned him about the
videos depicting the buys with “Little.”
{¶14} Special Agent 89 (“SA 89”) testified that after the CI provided authorities
with the name “Little,” he contacted Lieutenant Toby Burgett from the Painesville Police
Department in an attempt to learn “Little’s” real name. Lt. Burgett gave him the name of
Everett D. Howard, Sr., an individual he knew went by the street name “Little.” SA 89
then searched the name Lt. Burgett gave him on the Ohio Law Enforcement Gateway
(“OLEG”) and found a picture he could use to determine whether Everett D. Howard, Sr.
was the same “Little” the CI knew. The CI identified the man in the photo as the person
the CI knew as “Little.”
{¶15} SA 89 further testified he worked with the CI on the controlled buys; he and
another agent followed the CI during the first buy. SA 89 testified they parked
approximately 75 yards away from the CI’s car when the first buy took place, which was
around 8:30 p.m. when it was dark outside. SA 89 testified he saw the third party get out
of the car twice. The second time he went to the back of the car where he met a black
male. SA 89 described the man as “about 5’ 7”, about a hundred and sixty, hundred and
seventy pounds, I’d say. Built. Clean cut. Gray sweatshirt.” He testified he was confident
the person he saw was the same person whose picture he pulled from OLEG. He further
testified to a previous interaction he had with “Little” during an undercover buy, which also
helped him identify “Little” during the first controlled buy.
{¶16} SA 89 testified that for the second buy he only saw the CI walk into the
apartment building where the buy took place. Regarding the third buy, SA 89 testified he
observed “Little” on the first trip to the CI’s car to retrieve the scale and then walk back to
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the apartment complex. SA 89 did not observe “Little” coming back to the car with the
cocaine.
{¶17} After being shown stills from the videos from each of the controlled buys,
SA 89 identified appellant in the photographs.
{¶18} Kimberly Gilson, a forensic analyst with the Lake County Crime Laboratory,
testified that she performed a drug analysis on the evidence submitted. She also testified
officers did not request a fingerprint or DNA analysis of the plastic bags that contained
the alleged drugs.
{¶19} Appellant was found guilty of all charges in the indictment. The trial court
sentenced him to 11 months in prison on each of Count 1 and Count 3 and 13 months in
prison on Count 2, with all prison terms to be served consecutive to each other for a total
prison term of 35 months.
{¶20} Appellant filed a timely notice of appeal from the trial court’s sentencing
entry. Appellant raises four assignments of error on appeal. We address appellant’s
assignments of error out of order.
{¶21} Appellant’s third assignment of error states:
{¶22} “Appellant’s convictions were against the manifest weight of the evidence.”
{¶23} To determine whether a verdict is against the manifest weight of the
evidence, a reviewing court must consider the weight of the evidence, including the
credibility of the witnesses and all reasonable inferences, to determine whether the trier
of fact “‘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 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).
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{¶24} “This court [is] not in a position to view the witnesses who testified below
and observe their demeanor, gestures, and voice inflections, and use those observations
in weighing the credibility of the proffered testimony.” State v. Long, 127 Ohio App.3d
328, 335 (4th Dist.1998) (citations omitted). Therefore, in weighing the evidence
submitted at a criminal trial, an appellate court must “give substantial deference to the
factfinder’s determinations of credibility.” State v. Tribble, 2d Dist. Montgomery No.
24231, 2011-Ohio-3618, ¶30, citing State v. DeHass, 10 Ohio St.2d 230 (1967),
paragraph one of the syllabus.
{¶25} The jury found appellant guilty of three counts of Trafficking in Cocaine, in
violation of R.C. 2925.03(A)(1). That statute provides: “(A) No person shall knowingly do
any of the following: (1) Sell or offer to sell a controlled substance or a controlled
substance analog[.]”
{¶26} Appellant contends there were several problems with the CI’s testimony.
Appellant first argues the CI’s credibility was at issue because his testimony was
influenced by his desire to cooperate with authorities. This issue was addressed during
trial. The jury heard testimony pertaining to the search of the CI’s home, the type of
charges he potentially faced, and the nature of his work as a confidential informant. This
argument is not well taken.
{¶27} Appellant next argues it was not the CI who first identified appellant as the
individual he knew as “Little,” but that the identification came from Lt. Burgett of the
Painesville Police Department. The record reflects that the CI brought “Little” to the
attention of the authorities as a person who sold cocaine, but he did not know his real
name. Lt. Burgett provided the identify of a person he knew went by the street name of
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“Little.” The agents obtained a picture of Lt. Burgett’s “Little” and confirmed it was the
same “Little” with whom the CI was familiar. This argument is not well taken.
{¶28} Appellant further argues there were several “evidentiary gaps” in the
testimony and maintains that throughout their testimony, neither the CI or SA 89 indicated
they actually saw “Little” hand anyone drugs.
{¶29} A review of the testimony reveals, however, that the purported evidentiary
gaps of which appellant complains were all explained to the jury during trial. Moreover,
in addition to the testimony, the record contains enough surveillance evidence for the jury
to make reasonable inferences from which to draw their own conclusions.
{¶30} We must give substantial deference to the jury’s determination of credibility.
Based upon the record, we cannot conclude the jury lost its way or created a manifest
miscarriage of justice by finding appellant guilty of the aforementioned charges.
{¶31} Appellant’s third assignment of error is without merit.
{¶32} Appellant’s first assignment of error states:
{¶33} “The trial court abused its discretion in refusing to permit testimony
regarding the possible penalties [the CI] could face for charges stemming from the
November 3, 2015 search of his home.”
{¶34} On cross-examination of Sgt. Kemp, defense counsel questioned him about
the drugs found in the CI’s home, including the quantity of each drug and the penalties
the CI could face. The following exchange took place:
Defense counsel: And would 7 ½ grams rise to the level of F3?
Sgt. Kemp: Probably.
Prosecutor: Objection, Your Honor.
Trial court: Sustained.
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Defense counsel: Can I have a sidebar?
Trial court: Sure. (SIDEBAR) Okay.
***
Defense counsel: Your Honor, I believe that potential penalties
associated with Mr. Dalton are absolutely relevant and pertinent to
this matter in assessing his credibility. He has a deal with this
narcotics agency, and what’s hanging over his head is very
important. I want to establish that he’s facing F3, F4, F5, numerous
charges leading up to about 9 ½ years in prison.
***
Trial court: First off, we usually don’t send people to prison on F3’s
or F5’s even F4’s, we don’t send a lot of these people to prison. I
don’t know if this guy’s been to prison before. There’s - - and, by the
way, the cops don’t send people to prison.
***
Trial court: Well, these would be a Lake County case. I know the
judges in Lake County. We’re not gonna talk about the penalties,
period. You know, you can say it’s a felony and because that’s what
we do in this court. * * *
Appellant objected to the trial court’s refusal to permit testimony about the possible
penalties the CI faced.
{¶35} Appellant maintains evidence of the potential penalties is relevant in
explaining the motive behind the CI’s testimony and is admissible under Evid.R. 608(B)
to assist the jury in making a proper determination of credibility.
{¶36} Evidence is relevant if it has “any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Evid.R. 401. “All relevant evidence is
admissible, except as otherwise provided by the Constitution of the United States, by the
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Constitution of the State of Ohio, by statute enacted by the General Assembly not in
conflict with a rule of the Supreme Court of Ohio, by these rules, or by other rules
prescribed by the Supreme Court of Ohio.” Evid.R. 402 (emphasis added). Pursuant to
Evid.R. 608(B), specific instances of the conduct of a witness that are “clearly probative
of truthfulness or untruthfulness” may be “inquired into on cross examination of the
witness * * * concerning the character for truthfulness or untruthfulness of another witness
as to which character the witness being cross-examined has testified.” Evid.R. 608(B).
{¶37} In addressing the admissibility of evidence in this scenario, we review the
trial court’s decision for an abuse of discretion. “The admission or exclusion of relevant
evidence rests within the sound discretion of the trial court.” State v. Sage, 31 Ohio St.3d
173 (1987), paragraph two of the syllabus. An abuse of discretion is the trial court’s
“‘failure to exercise sound, reasonable, and legal decision-making.’” State v. Beechler,
2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶62, quoting Black’s Law Dictionary 11
(8th Ed.2004).
{¶38} Appellant fails to demonstrate how the potential penalties are “clearly
probative” of the CI’s character for truthfulness or untruthfulness. Further, both Sgt. Kemp
and the CI were questioned about the drugs found in the home and about the CI’s
motivation for testifying. Moreover, as alluded to by the trial court, no charges had been
filed against the CI. Therefore, any testimony about potential charges, or what sentence
may have been imposed for those charges, was too speculative. The trial court did not
abuse its discretion in refusing to allow Sgt. Kemp to testify about the potential penalties
the CI might face after the search of his home.
{¶39} Appellant’s first assignment of error is without merit.
{¶40} Appellant’s second assignment of error states:
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{¶41} “The trial court abused its discretion in refusing to permit testimony
regarding punishment [the CI] received for past criminal convictions.”
{¶42} On May 8, 2017, in response to notice from appellant of his intent to use
prior convictions older than ten years to impeach the CI, the state filed a motion in limine,
asking the court to prohibit appellant from offering the evidence, pursuant to Evid.R. 609.
The court ultimately denied the motion, finding, pursuant to Evid.R. 609 and Evid.R. 403,
that the four convictions at issue all involved dishonesty and their probative value
substantially outweighed their prejudicial effect. The court permitted the inquiry of the
convictions to include the date, court, and case number, but prohibited inquiry of the
punishment imposed.
{¶43} Appellant failed to object to the trial court’s prohibition of inquiry into the
punishment imposed for the subject convictions. In addition, there was no proffer made
as to what evidence would have been introduced regarding the sentence imposed, or
how it was relevant. We, therefore, review for plain error. See State v. Straw, 11th Dist.
Portage No. 2009-P-0039, 2015-Ohio-1059, ¶9, citing State v. Barnes, 94 Ohio St.3d 21,
27 (2002) (citations omitted).
{¶44} Evid.R. 609 provides, in pertinent part:
(A) For the purpose of attacking the credibility of a witness:
***
(3) notwithstanding Evid.R. 403(A), but subject to Evid.R. 403(B),
evidence that any witness * * * has been convicted of a crime is
admissible if the crime involved dishonesty or false statement,
regardless of the punishment and whether based upon state or
federal statute or local ordinance.
***
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(B) Evidence of a conviction under this rule is not admissible if a
period of more than ten years has elapsed * * * unless the court
determines, in the interests of justice, that the probative value of the
conviction supported by specific facts and circumstances
substantially outweighs its prejudicial effect.
{¶45} Pursuant to Evid.R. 403:
(A) Exclusion Mandatory. Although relevant, evidence is not
admissible if its probative value is substantially outweighed by the
danger of unfair prejudice, of confusion of the issues, or of
misleading the jury.
(B) Exclusion Discretionary. Although relevant, evidence may be
excluded if its probative value is substantially outweighed by
considerations of undue delay, or needless presentation of
cumulative evidence.
{¶46} “Evid.R. 609 must be read in conjunction with Evid.R. 403. Thus, the trial
court does possess broad discretion under Evid.R. 609 to determine the extent to which
[evidence of prior convictions] will be allowed. The trial judge must weigh all the factors
in making this determination.” State v. Wright, 48 Ohio St.3d 5, 7 (1990), citing State v.
Amburgey, 33 Ohio St.3d 115, 117 (1987); see also State v. Bryan, 101 Ohio St.3d 272,
¶132.
{¶47} Appellant argues the Ohio Supreme Court, in Amburgey, only gave the trial
court discretion to limit questioning of prior convictions on cross-examination to the extent
it goes beyond asking about “the name of the crime, the time and place of conviction and
the punishment imposed.” Amburgey, supra, at syllabus. However, the Twelfth Appellate
District has explained:
The Court in Amburgey merely held that due to the discretion a trial
court exercises over cross-examination, it does not err when it limits
cross-examination regarding an impeachment offense to the name
of the crime, the time and place of conviction, and the punishment
imposed. The Court did not hold that a trial court must allow cross-
examination regarding these manners.
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State v. Russell, 12th Dist. Butler No. CA2012-03-066, 2013-Ohio-1381, ¶39 (emphasis
sic). We agree and conclude that appellant’s argument is not well taken.
{¶48} The trial court held hearings on the motion in limine prior to commencing
the jury trial on May 8, 2017, and again prior to the close of testimony on May 9, 2017.
The record reflects the trial court weighed the relevant factors. We conclude the trial court
did not commit any error, much less plain error, in its order to exclude questions on cross-
examination concerning the punishment for the convictions at issue.
{¶49} Appellant’s second assignment of error is without merit.
{¶50} Appellant’s fourth assignment of error states:
{¶51} “Appellant’s sentence was not supported by the record.”
{¶52} We generally review felony sentences under the standard of review set forth
in R.C. 2953.08(G)(2), which states:
The court hearing an appeal under division (A), (B), or (C) of this
section shall review the record, including the findings underlying the
sentence or modification given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a
sentence that is appealed under this section or may vacate the
sentence and remand the matter to the sentencing court for
resentencing. The appellate court’s standard for review is not
whether the sentencing court abused its discretion. The appellate
court may take any action authorized by this division if it clearly and
convincingly finds either of the following:
(a) That the record does not support the sentencing court’s findings
under division (B) or (D) of section 2929.13, division (B)(2)(e) or
(C)(4) of section 2929.14, or division (I) of section 2929.20 of the
Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶53} Appellate courts “‘may vacate or modify any sentence that is not clearly and
convincingly contrary to law’” only when the appellate court clearly and convincingly finds
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that the record does not support the sentence. State v. Wilson, 11th Dist. Lake No. 2017-
L-028, 2017-Ohio-7127, ¶18, quoting State v. Price, 8th Dist. Cuyahoga No. 104341,
2017-Ohio-533, ¶14, quoting State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶23.
{¶54} Here, appellant challenges the trial court’s consideration of the seriousness
and recidivism factors under R.C. 2929.12. Appellant maintains the trial court should
have given more weight to certain factors that made appellant’s conduct less serious.
{¶55} To ensure the sentence complies with the overriding principles of felony
sentencing as stated in R.C. 2929.11, a court imposing a felony sentence is required to
consider the seriousness and recidivism factors found in R.C. 2929.12. The trial court,
however, “is not required to ‘use specific language or make specific findings on the record
in order to evince the requisite consideration of the applicable seriousness and recidivism
factors [of R.C. 2929.12].’” State v. Webb, 11th Dist. Lake No. 2003-L-078, 2004-Ohio-
4198, ¶10, quoting State v. Arnett, 88 Ohio St.3d 208, 215 (2000). Further, the “trial court
is not required to give any particular weight or emphasis to a given set of circumstances”
when considering the statutory factors. State v. DelManzo, 11th Dist. Lake No. 2007-L-
218, 2008-Ohio-5856, ¶23.
{¶56} At appellant’s sentencing hearing, defense counsel requested the court
impose community control sanctions rather than a prison sentence. He informed the court
that appellant is a “loving father” with four children and that he was going through a
custody battle. Defense counsel further pointed out nobody was harmed as a result of
appellant’s offenses and that appellant had not intended to harm anyone. Counsel further
stated appellant’s criminal history was not “relatively lengthy.”
{¶57} The state reviewed appellant’s presentence investigation report (“PSI”) with
the court, including appellant’s criminal history dating back to 2005. The state noted
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appellant’s multiple probation violations, failed attempts at drug treatment, and that selling
cocaine was furthering the drug epidemic.
{¶58} The trial court stated it considered the record, oral statements, PSI, drug
and alcohol psychological evaluation, and conference with appellant and defense
counsel. The court stated it considered R.C. 2929.11 and R.C. 2929.12.
{¶59} The trial court’s judgment entry states:
The Court has also considered the record, oral statements, any
victim impact statement, pre-sentence report, and/or drug and
alcohol evaluation submitted by the Lake County Adult Probation
Department of the Court of Common Pleas, as well as the principles
and purposes of sentencing in R.C. 2929.11, and has balanced the
seriousness and recidivism factors under R.C. 2929.12.
{¶60} Appellant has failed to demonstrate the trial court did not properly consider
and weigh the statutory seriousness and recidivism factors.
{¶61} Appellant’s fourth assignment of error is without merit.
{¶62} For the foregoing reasons, the judgment of the Lake County Court of
Common Pleas is affirmed.
DIANE V. GRENDELL, J.,
CYNTHIA WESTCOTT RICE, J.,
concur.
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