State v. Johnson

[Cite as State v. Johnson, 2013-Ohio-2692.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98966
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
SHAYLA JOHNSON
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED, VACATED, AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-556207
BEFORE: Rocco, J., Boyle, P.J., and Kilbane, J.
RELEASED AND JOURNALIZED: June 27, 2013
ATTORNEY FOR APPELLANT
Marcus S. Sidoti
Jordan & Sidoti, L.L.P.
50 Public Square
Suite 1900
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGuinty
Cuyahoga County Prosecutor
By: Marcus A. Henry
Assistant County Prosecutor
Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:
{¶1} Defendant-appellant Shayla Johnson (“Johnson”) appeals from her
convictions for drug trafficking and drug possession, both with firearm specifications,
and from her conviction for possessing criminal tools. On appeal, Johnson argues that
the trial court erred in denying her motion for acquittal under Crim.R. 29 because there
was insufficient evidence to sustain the convictions. We agree and so we reverse the
trial court’s final judgment and remand the case to the trial court with instructions to
vacate the convictions.
{¶2} Johnson was indicted for two counts of drug trafficking under R.C.
2925.03(A)(1) and 2925.03(A)(2); for drug possession under R.C. 2925.11(A); and for
possessing criminal tools under R.C. 2923.24(A). All of the counts were fifth-degree
felonies, and contained forfeiture specifications under R.C. 2941.1417(A). The drug
trafficking and drug possession counts all included a one-year firearm specification under
R.C. 2941.141(A). The case proceeded to a bench trial.
{¶3} Eva Sanders (“Sanders”), a codefendant, testified on behalf of the state.
Sanders, who was addicted to crack cocaine, explained that she and co-defendant, Carlene
Wiley (“Wiley”), a drug dealer, had a relationship where Sanders would bring customers
to Wiley, and, in exchange, Wiley would give Sanders crack cocaine for her personal use.
{¶4} On the date of the incident, Sanders had seen Wiley earlier that afternoon,
and, at that point, Wiley was alone, selling crack cocaine on a bicycle. Wiley told
Sanders that she had gotten into an altercation, that someone had tried to rob her, and that
she would be back later.
{¶5} Sanders saw Wiley later that evening sitting in the driver’s seat of a parked
car. Johnson was sitting in the passenger seat. Sanders had known Wiley for over ten
years, but this was the first time Sanders had ever seen Johnson. Sanders had $20, so she
approached Wiley, purchased some crack cocaine, and went into a building to smoke it in
the hallway. Sanders wanted to get high again. Knowing that Wiley would give
Sanders more crack cocaine if Sanders could bring Wiley a customer, Sanders started
looking around for a potential customer.
{¶6} Meanwhile, Detective Mike Duller (“Det. Duller”) had provided marked
currency (“marked buy money”) and a body wire to a confidential informant (“the
informant”). Det. Duller took the informant to a parking lot in an area known for drug
activity so that the informant could attempt to procure crack cocaine with the marked buy
money. Det. Duller heard on the wire that the informant was introduced to Sanders.
{¶7} The informant told Sanders that he wanted to purchase $20 in crack cocaine
and Sanders told the informant that she could obtain it for him. Sanders walked over to
the driver’s side of the car where Wiley was sitting and dropped the $20 in marked buy
money in Wiley’s lap. Wiley gave Sanders the crack cocaine, and Sanders walked away,
placing the drugs on the ledge of a building. During the course of the transaction,
Johnson was “just sitting there.” Tr. 130. Sanders did not observe any firearms in the
car.
{¶8} After Sanders placed the crack cocaine on the ledge, Det. Duller received a
signal from the informant that the drug transaction had been completed. Law
enforcement arrived at the scene to arrest Sanders, Wiley, and Johnson.
{¶9} A body search of Wiley revealed $24 in unmarked cash, $20 of marked buy
money, a firearm, and crack cocaine. The crack cocaine was recovered from the front
waistband of Wiley’s pants. The firearm was recovered from the back of Wiley’s pants.
{¶10} Law enforcement searched Johnson and recovered a cellular phone and
$466 in cash. None of the currency found on Johnson was marked buy money. No
weapons were recovered from Johnson. No drugs were recovered from Johnson.
{¶11} Wiley testified that she and Johnson were friends, that they had met up that
evening to go out, and that, on the way, Wiley made a stop to sell some crack cocaine.
Wiley testified that Johnson did not know that Wiley had any contraband on her person.
Wiley stated that they took Johnson’s car, but that Wiley drove, because Wiley had a
driver’s license and insurance. Wiley testified that her firearm was tucked in the back,
left side of her pants and that she was wearing a large hoodie that was zipped up. Wiley
denied having sold crack cocaine to Sanders earlier that day, but acknowledged that she
sold the crack cocaine that Sanders had purchased for the informant. Wiley testified that
she did not make the transaction in the car, but rather, had gotten out of the car to conduct
the transaction. Wiley also testified that she had not given Johnson money to hold that
night.
{¶12} Det. Duller, two other members of law enforcement involved in the arrests,
and Sanders all testified that some drug dealers split the work between them so that one
person holds the drugs and another person holds the money that was earned from the drug
sale. The latter person is known as “the bank.” Det. Duller explained that, under this
arrangement, the dealer would “pass off the money to [the bank] to protect their
investment when the police come and snatch them up. If that should happen, they’re
found with maybe some drugs but not found with any money. As a result, there’s no * *
* business loss.” Tr. 54. Det. Duller testified that, while not “not definite,” he believed
that Johnson “was probably the bank.” Tr. 60, 61. Although Det. Duller acknowledged
that he had no personal knowledge of how Johnson obtained the $466, he theorized that
the money constituted drug-sale proceeds. Sanders testified that she had no knowledge
that Johnson was acting as the bank.
{¶13} At the conclusion of the bench trial, the trial court found Johnson guilty of
drug trafficking under R.C. 2925.03(A)(1), drug possession under R.C. 2925.11(A), and
possessing criminal tools under R.C. 2923.24(A); the first two convictions included a
one-year firearm specification under R.C. 2941.141(A). The trial court also found that
the cell phone, the gun, and all of the money recovered were subject to forfeiture. The
trial court found Johnson not guilty of drug trafficking under R.C. 2925.03(A)(2).
Johnson was sentenced to 18 months imprisonment and to postrelease control. Johnson’s
notice of appeal presents two assignments of error for our review.
I. The trial court erred in denying Johnson’s Crim.R. 29(A) motion for
acquittal, because there was insufficient evidence
to sustain the convictions.
II. The convictions were against the manifest weight of the evidence.
{¶14} We sustain the first assignment of error because there was insufficient
evidence to support the convictions. We decline to address the second assignment of
error because it is moot.
{¶15} Under Crim.R. 29, a motion for judgment of acquittal should be granted if
the evidence is insufficient to sustain a conviction for the offense. Viewing all the facts
in a light most favorable to the prosecution, we will not reverse the trial court’s judgment
unless reasonable minds could only reach the conclusion that the evidence failed to prove
all elements of the crime beyond a reasonable doubt. State v. Jenks, 61 Ohio St. 3d 259,
574 N.E.2d 492 (1991), paragraph two of the syllabus. We examine each conviction in
turn.
Drug Trafficking
{¶16} In order to convict Johnson for drug trafficking under R.C. 2925.03(A)(1),
the state had to demonstrate that Johnson knowingly sold or offered to sell the crack
cocaine to Sanders. The state proceeded on the theory that Johnson aided and abetted
Wiley in the crack cocaine sale. “‘Aiding and abetting contains two basic elements: an
act on the part of the defendant contributing to the execution of a crime and the intent to
aid in its commission.’” State v. Wilcox, 8th Dist. No. 90492, 2008-Ohio-4249, ¶ 19,
quoting State v. Sims, 10 Ohio App. 3d 56, 58, 460 N.E.2d 672 (8th Dist.1983). But
“[m]ere presence during the commission of a crime * * * does not constitute aiding and
abetting.” Wilcox, citing State v. Peavy, 8th Dist. No. 80480, 2002-Ohio-5067, ¶ 32.
{¶17} The state relies on Sanders’s testimony to support its position that there was
sufficient evidence to convict Johnson for drug trafficking. Sanders testified that she had
earlier seen Wiley selling crack cocaine on a bicycle, and that Wiley told Sanders that
people had tried to rob her. Several hours later, Wiley returned in Johnson’s car with
Johnson, and Wiley sold Sanders crack cocaine. According to the state, one could infer
that Wiley came back in Johnson’s car in order to protect herself from would-be robbers,
and that Johnson “aided Wiley in the trafficking by providing a car to Wiley to sell crack
cocaine.” State Br. at 8.
{¶18} We have reversed convictions for drug trafficking, drug possession, and
possession of criminal tools on strikingly similar facts to those presented in the instant
case. In State v. Whyte, 8th Dist. No. 59779, 1992 Ohio App. LEXIS 343 (Jan. 30,
1992), the appellant was the passenger in a car that was pulled over by law enforcement.
The car belonged to the appellant’s girlfriend, but the codefendant was operating the
vehicle. Law enforcement searched the driver and found cocaine and a butterfly knife.
A search of appellant uncovered $250 in cash ($125 of which was Jamaican money) and
an address book containing phone numbers for Manhattan, the Bronx, Philadelphia,
Puerto Rico, Miami, and Washington D.C. Id. at *2-3. No drugs or weapons were
recovered from the appellant.
{¶19} The state argued that the following evidence supported the convictions: the
car was owned by the appellant’s girlfriend; both appellant and the driver were
“extremely nervous” when the car was stopped for a traffic violation; the multiple bags of
cocaine were found “loosely wrapped (not in the pockets)” in a coat laying on the driver’s
lap, about six to ten inches from the appellant; the appellant and the driver listed the same
name on their booking slips for who to notify; although appellant was unemployed, he
was carrying $250 in cash; and appellant’s address/phone book was a “prototypical drug
book.” Id. at *10.
{¶20} We concluded that the evidence did not support a finding that appellant
aided and abetted cocaine trafficking. In reaching this conclusion, we explained that
“[o]ur penal laws and constitution ha[ve] not as yet endorsed guilt by association. An
individual must be tried for crimes he commits and not those committed by his associates
unless there is strong evidence linking the accused to the crimes of his associate.” Id. at
*13.
{¶21} In contrast, in State v. Capretta, 8th Dist. No. 88986, 2008-Ohio-138, ¶ 17,
we determined that there was sufficient evidence to convict the appellant of aiding and
abetting drug trafficking where the appellant took actions that furthered the execution of
the crime. In Capretta, the appellant drove the co-defendant to two drug sales on two
separate occasions. In the first instance, she moved into the back seat of the car so that
the buyer could sit in the front seat, and then she got back into the driver’s seat and drove
the codefendant away. Two days later, she again drove the codefendant to the same
location as the previous drug sale, left the vehicle so that the buyer could get into the car,
returned to the car at the conclusion of the sale, and drove the codefendant away. We
concluded that, “[b]ased on the circumstances of this case, [appellant’s] intent to assist in
the distribution and sale of the drugs can be inferred.” Id.
{¶22} In the instant case, the state’s evidence is even less compelling than the
evidence presented in Whyte. The fact that Wiley conducted the single drug transaction
in Johnson’s car and in Johnson’s presence does not, standing alone, establish that
Johnson aided and abetted Wiley in trafficking drugs. To conclude otherwise would be
to endorse guilt by association. Sanders testified that she approached the driver’s side of
the car, placed the marked buy money in Wiley’s lap, and that Wiley gave Sanders the
crack cocaine. There was no testimony that Johnson took any action to facilitate the
transaction between Wiley and Sanders. Unlike the appellant in Capretta, who drove to
the sale and moved about in order to facilitate the sale, in the present case, Johnson was
“just sitting there.” Tr. 130. The state did not identify a single overt act made by
Johnson to support its theory that she aided and abetted a crime.
{¶23} Further, in spite of the testimony that established that some drug dealers
divide the labor so that one holds the money and the other holds the drugs, there was no
evidence that tended to show that this was the arrangement in the instant case. “Mere
possession of money does not constitute prima facie evidence of criminal purpose * * *.”
Whyte, 1992 Ohio App. LEXIS 343 at *14 (discussing R.C. 2923.24). No drugs or
marked buy money were found on Johnson. The witnesses observed only one drug
transaction: that transaction involved only Wiley and Sanders, and the proceeds from that
transaction were found on Wiley. The state provided no direct or circumstantial
evidence whatsoever to support its theory that Johnson was the bank. Speculations are
not evidence. To the contrary, the fact that Johnson was sitting right next to Wylie cuts
against the state’s testimony that the purpose of a bank is to keep distance between the
drug transaction and the proceeds from that transaction.
{¶24} The state attempts to link the money found on Johnson with the drug
transactions that Wiley made when she was alone on her bicycle earlier that day. But the
uncontroverted testimony established that Wiley left for several hours before returning in
the car with Johnson. Thus, there is no logical nexus between the money found on
Johnson that evening and the drug transactions that Wiley made several hours earlier.
The state’s case against Johnson was erected on a foundation of mere suspicion, from
which it built inference upon inference upon inference. Such a precarious structure
cannot support a conviction.
{¶25} Viewing all the facts in a light most favorable to the prosecution, reasonable
minds could only reach the conclusion that the evidence failed to establish beyond a
reasonable doubt that Johnson aided and abetted Wiley in selling crack cocaine to
Sanders. Rather, Johnson was merely present during the commission of the crime.
Accordingly, the trial court erred in denying Johnson’s Crim.R. 29 motion, and we
reverse and vacate Johnson’s conviction under 2925.03(A)(1).1
1
The trial court’s rationale for denying the motion is difficult to fathom.
Drug Possession
{¶26} According to Johnson, the state failed to present sufficient evidence that
she had constructive possession of the crack cocaine that was found on Wiley’s person.
We agree. Johnson was convicted of drug possession under R.C. 2925.11(A), which
provides that “[n]o person shall knowingly obtain, possess, or use a controlled substance
* * *.” R.C. 2925.01(K) defines “possession” as “having control over a thing or
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.” Possession of an object may be actual or constructive. State v. Smith, 92 Ohio
App.3d 172, 175, 634 N.E.2d 659 (8th Dist.1993). Constructive possession requires that
the defendant is able to exercise dominion or control over the object, and may be proved
by circumstantial evidence. State v. Perry, 8th Dist. No. 84397, 2005-Ohio-27, ¶ 70.
{¶27} The state argues that Johnson constructively possessed the crack cocaine
that was recovered from Wiley’s front waistband. According to the state, because
Johnson was sitting next to Wiley in the front seat of the car, with only a console between
them, Johnson exercised dominion and control over the crack cocaine. But on the facts
of this case, Johnson could exercise dominion and control over the crack cocaine only if
she were to reach over the console, put her hand down Wiley’s pants, and extract the
crack cocaine from Wiley’s pants. 2 We decline the state’s invitation to expand the
2
This would also require us to assume that Wiley would not physically prevent Johnson from
violating her personal space in this manner.
definition of constructive possession to include such a scenario. See also Whyte, 1992
Ohio App. LEXIS 343, at *10-11 (state presented insufficient evidence that the passenger
possessed drugs that were found in a coat sitting on the driver’s lap).
{¶28} The state also argues that Johnson had dominion and control over the drugs
based on the fact that the car belonged to Johnson. But the drugs were not found in
Johnson’s car; they were found on Wiley’s person, in the front waistband of her pants.
Accordingly, the state’s position is unsupported by the record evidence. Because the
evidence presented by the state did not establish beyond a reasonable doubt that Johnson
possessed crack cocaine, the trial court erred in denying her Crim.R. 29 motion.
Accordingly, we reverse and vacate Johnson’s conviction under R.C. 2925.11(A).
Firearm Specification
{¶29} Having determined that there was insufficient evidence to support Johnson’s
convictions for drug trafficking and drug possession, we easily conclude that there was
insufficient evidence to support the one-year firearm specification attaching to both of
those offenses. R.C. 2941.141(A) provides that the one-year firearm specification
applies when “the offender had a firearm on or about h[er] person or under h[er] control
while committing the offense.” (Emphasis added.) As set forth above, the state did not
meet its burden to show that Johnson committed the offenses, and so R.C. 2941.141(A) is
inapplicable. Accordingly, we reverse the one-year firearm specifications.
Possession of Criminal Tools
{¶30} Finally, we conclude that the evidence presented at trial was insufficient to
support Johnson’s conviction for possession of criminal tools. According to the
indictment, the criminal tools consisted of money, the firearm found in Wiley’s pants, and
the cell phone. In order to convict Johnson of possession of criminal tools under R.C.
2923.24(A), the state had to demonstrate that Johnson possessed or had under her control
the money, the firearm, and/or the cell phone, with the purpose to use any or all of these
items in a criminal manner.
{¶31} In our discussion about drug possession under R.C. 2925.11(A), we
explained our reasons for concluding that Johnson did not possess the crack cocaine that
was recovered from the front of Wiley’s pants. For the very same reasons, we conclude
that Johnson did not possess the firearm that was similarly found in the back of Wiley’s
pants.
{¶32} While the state did establish that Johnson possessed money and a cell phone,
it did not establish beyond a reasonable doubt that she possessed these items with the
purpose to use them criminally. In our discussion about drug trafficking under R.C.
2925.03(A)(1), we concluded that the evidence failed to demonstrate that the money
found on Johnson’s person was connected to the sale of drugs. Applying this same
reasoning to Johnson’s conviction for possessing criminal tools under R.C. 2923.24(A),
we conclude that the state failed to establish that the money recovered from Johnson was
possessed with the purpose to use it criminally.
{¶33} Turning to the cell phone, Johnson’s mere possession of the phone, without
more, does not establish that she possessed it with the purpose to use it criminally. The
state presented no evidence whatsoever tending to show that the cell phone was used in
furtherance of a crime or that Johnson intended to use the cell phone in the furtherance of
a crime. On appeal, the state makes no argument with respect to the cell phone.
Because the state did not present sufficient evidence that Johnson was in possession of
criminal tools, the trial court erred in denying her Crim.R. 29 motion, and we reverse and
vacate Johnson’s conviction under R.C. 2923.24(A).
{¶34} The trial court’s judgment is reversed and upon remand the convictions shall
be vacated. The forfeiture orders are reversed and on remand shall be vacated.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
____________________________________
KENNETH A. ROCCO, JUDGE
MARY J. BOYLE, P.J., and
MARY EILEEN KILBANE, J., CONCUR