State v. Smith

[Cite as State v. Smith, 2017-Ohio-8558.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-160836
C-160837
Plaintiff-Appellee, : TRIAL NOS. B-1506673
B-1406013B
vs. :
O P I N I O N.
MAURICE SMITH, :
Defendant-Appellant. :
Criminal Appeals From: Hamilton County Court of Common Pleas
Judgments Appealed From Are: Affirmed in C-160837; Affirmed in Part,
Sentence Vacated in Part, and Cause
Remanded in C-160836
Date of Judgment Entry on Appeal: November 15, 2017
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott
Havlin, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
The Farrish Law Firm and Michaela M. Stagnaro, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
Z AYAS , Presiding Judge.
{¶1} Maurice Smith appeals his convictions and sentences for one
count of burglary, a felony of the second degree, one count of trafficking in
cocaine, a felony of the first degree, one count of possession of cocaine, a
felony of the first degree, one count of possession of marijuana, a felony of the
fifth degree, and tampering with evidence, a felony of the third degree. He
also appeals his sentence imposed on a community-control violation.
Because we determine that the trial court erred in sentencing Smith, we
sustain his tenth assignment of error and remand the matter for resentencing.
We find no merit in his remaining assignments of error, so we affirm the
remainder of the trial court’s judgment.
The 911 Call
{¶2} On November 29, 2015, a man called 911 to report a burglary in
progress. The caller identified himself by name and stated that he lived
upstairs from the apartment being burglarized. He stayed on the phone with
dispatch until the police arrived, and he continuously updated dispatch as to
what he observed and heard.
{¶3} The caller was silently watching the burglary from the hallway
upstairs. He told the 911 operator that he had heard the perpetrator break
open the door to the apartment and enter. He reported that the perpetrator
was running back and forth between the apartment and the laundry room.
He then heard the perpetrator slowly creeping up the stairs.
{¶4} He saw the perpetrator who had broken into the apartment and
told dispatch that he knew him, and that he had previously broken into the
same apartment. The caller heard banging and reported that the perpetrator
was fighting with the officers. The 911 operator urged him to calm down and
to stay in his apartment. The caller reported that the perpetrator was a crack
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head and a thief, who had stolen his identification card. He also reported that
an upstairs neighbor sold and delivered drugs that he kept in his car. Before
hanging up the phone, he told the operator that he would be willing to file a
police report and go to court.
The Arrest
{¶5} Sergeant Robert Godbey and Officer Travis Moyers arrived on
the scene three minutes after the call was made. They were aware of the
burglary in progress. As Godbey approached the door to the apartment
building, Smith opened the door from the inside. Godbey testified that he
immediately recognized Smith and saw a large bag of marijuana sticking out
of his hoodie pocket. After addressing Smith by name, he reached for Smith’s
arm, and Smith pulled away. Both officers then struggled with Smith. While
they were struggling, the bag of marijuana fell to the floor.
{¶6} The struggle moved into a first-floor apartment, and Smith
began to empty his pockets and throw cocaine and handfuls of marijuana in
the apartment. After struggling for a few minutes, the officers were able to
handcuff and arrest Smith. They searched him and recovered property that
was later identified by the victim, Brandon Mattress, as items belonging to
him.
Preliminary Court Proceedings
{¶7} Smith was indicted for burglary, trafficking in cocaine,
possession of cocaine, possession of marijuana, and tampering with evidence.
Smith’s counsel filed a motion to suppress arguing that the officers did not
have reasonable suspicion to stop Smith as he was leaving the apartment
building. The motion was overruled, and the trial was scheduled for two
weeks later.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶8} In the meantime, Smith filed a pro se motion to dismiss, or in
the alternative, a motion for a mistrial. Smith’s counsel filed a motion to
withdraw on the basis that his relationship with Smith was “irretrievably
broken.” The court scheduled a hearing on the motion to withdraw, and
Smith informed the court he did not want new counsel and wanted his
current counsel to continue to represent him. Counsel withdrew his motion
and the pending pro se motions. Eleven days later, the trial court put on an
entry allowing Smith’s counsel to withdraw and appointing new counsel to
represent Smith.
{¶9} Smith filed additional pro se motions including a motion for an
independent laboratory analysis, requesting that a fingerprint analysis be
performed on the plastic bags that contained the drugs, and a motion to
dismiss, alleging numerous flaws in the proceeding, including a speedy-trial
violation.
{¶10} His new counsel requested two continuances and another
suppression hearing based on new evidence. The court granted counsel’s
requests, and the case was set for a second motion-to-suppress hearing. At
the second motion-to-suppress hearing, counsel informed the court that
Smith had drafted a motion to remove him as counsel but had not yet filed it.
No reasons were given in support of the motion, and the trial court overruled
it. The court asked counsel if he wanted to adopt and argue Smith’s pro se
motion to dismiss. Counsel declined, and the court overruled the motion.
The second motion to suppress was denied.
{¶11} Smith’s trial was scheduled the same day, and a visiting judge
presided over the trial. Prior to trial, Smith asked the visiting judge to rule on
the pro se motions he had filed. When counsel again explained that Smith
had drafted a motion to appoint new counsel, Smith clarified that he only
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OHIO FIRST DISTRICT COURT OF APPEALS
wanted to address the speedy-trial issue and the motion for fingerprint
analysis. His counsel told the court the request for fingerprint analysis was
without merit, and that he could not argue the motion. The court asked the
prosecutor and Smith’s counsel to review the docket to determine whether
there was a speedy-trial issue.
{¶12} The following day, the prosecutor and Smith’s counsel assured
the court that time had not expired. They explained that time was tolled by all
of the continuances, except one, which were requested by Smith, by the
appointment of new counsel and by the motions to suppress. The case
proceeded to trial.
The Jury Trial
{¶13} The state presented five witnesses. Michael Mattress testified
that he lived in the apartment that was burglarized with his brother Brandon.
Brandon Mattress testified that he sold convenience items, such as soft
drinks, alcohol, chips, and cigarettes, from the apartment and from a small
school bus that he converted into a store. He only accepted cash and kept it in
a cashbox.
{¶14} On the night of the burglary, Brandon was driving a friend to
her job downtown, when he received a call from an upstairs neighbor, Donald
Hodge. Hodge informed him that someone had broken into his apartment.
While Brandon was driving home, Hodge continued to call him and update
him on the burglary. Brandon picked up his brother Michael, and they met
the police in the apartment. Brandon testified that the carton of cigarettes,
bottles of alcohol, and the three rubber-banded, labeled stacks of money
recovered from Smith belonged to him.
{¶15} Wendy Pugh testified that she lived with her aunt in the same
building in a ground-floor apartment. As she was going outside to find her
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OHIO FIRST DISTRICT COURT OF APPEALS
aunt, she saw Smith coming down the stairs. Smith had been friends with her
oldest son. She spoke briefly with Smith, and saw the officers enter the
building then struggle with Smith. She went back into her apartment at the
request of the officers. Suddenly, the front door burst open, and the struggle
moved into her living room. She testified that she saw Smith throw the bag of
marijuana, a carton of cigarettes, and the cocaine.
{¶16} Officer Moyers testified that based on his experience and
training, the cocaine was in bulk packaging, which was commonly used by
drug dealers. He also discussed the struggle with Smith and confirmed that
Smith was throwing the drugs when they were struggling in the apartment.
{¶17} Sergeant Godbey also testified. In describing the struggle,
Godbey explained that Smith “was attempting to pull things out of his pocket
and tampering with our evidence * * *.” Godbey also testified that he had 23
years of police experience and had investigated thousands of crack-cocaine
cases. Based on his experience and training, the large amount of cocaine
indicated that it was for distribution because a personal-use amount would be
about the size of a pea.
{¶18} While Godbey testified, the state played the 911 call for the jury
and provided transcripts for the jury to follow along. Smith stipulated to the
admissibility of the 911 call and requested that the transcript of the call be
admitted into evidence. After Godbey testified, the state rested.
{¶19} Smith called his sole witness, Donald Hodge. Hodge testified
that he lived in the upstairs apartment. On the night of the burglary, Smith
had come to his apartment looking for his uncle. Hodge invited him in for a
few moments. Shortly after Smith left, Hodge heard the commotion
downstairs. Hodge did not see a bag of marijuana in Smith’s pocket. But
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OHIO FIRST DISTRICT COURT OF APPEALS
Hodge did see a bag of marijuana on the floor by the entrance to the
apartment building after the situation became calm.
{¶20} On cross-examination, Hodge denied calling Brandon Mattress
and telling him about the burglary. Hodge stated that he called Brandon to
tell him that the police were in his apartment.
{¶21} The state recalled Brandon as a rebuttal witness. Over
objection, Brandon testified that Hodge called him three times on the night of
the burglary. The first time, Hodge told him that Smith had broken into his
apartment. Hodge next called him to tell him the police had arrived. Hodge
then called to report that Smith was fighting with the officers and marijuana
was all over the floor.
{¶22} The jury returned a verdict finding Smith guilty of all charges.
The court sentenced Smith to one year on the community-control violation in
the case numbered B-1406013. The court sentenced Smith to seven years on
count 1, burglary, nine years on count 2, trafficking in cocaine, nine years on
count 3, possession of cocaine, 11 months on count 4, possession of
marijuana, and 30 months on count 5, tampering with evidence. The court
ordered counts 2, 3, 4, and 5 to be served concurrently with each other and
consecutively to count 1, and for the aggregate sentence to be served
consecutively to the sentence in the case numbered B-1406013.
The Overruling of the Motion to Suppress
{¶23} In his first assignment of error, Smith contends that the trial
court erred in overruling his motion to suppress. He argues that his
immediate detention was done without reasonable suspicion or probable
cause.
{¶24} Appellate review of a motion to suppress presents a mixed
question of law and fact. We must accept the trial court's findings of fact as
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OHIO FIRST DISTRICT COURT OF APPEALS
true if competent, credible evidence supports them. Next, we must
independently determine whether the facts satisfy the applicable legal
standard. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797
N.E.2d 71, ¶ 8; State v. Ojile, 1st Dist. Hamilton Nos. C-110677 and C-110678,
2012-Ohio-5372, ¶ 16.
{¶25} A police officer may rely on a police broadcast for probable
cause to make an arrest when the information is sufficient to cause a
reasonable belief that a crime has been committed by the accused. See State
v. Fultz, 13 Ohio St.2d 79, 82, 234 N.E.2d 593 (1968). Moreover, if the officer
has probable cause to believe that an individual has committed a criminal
offense in his presence, he may, without violating the Fourth Amendment,
stop and arrest the offender. See Atwater v. City of Lago Vista, 532 U.S. 318,
354, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001). An officer who makes a lawful
arrest may conduct a warrantless search of the arrestee's person. Chimel v.
California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).
The search-incident-to-arrest exception protects arresting officers and
safeguards evidence that the arrestee might conceal or destroy. Arizona v.
Gant, 556 U.S. 332, 339, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009).
{¶26} In this case, Sergeant Godbey was investigating a burglary in
progress. As he approached the front door, Godbey saw Smith attempting to
leave the building. Godbey testified that he immediately saw a large bag of
marijuana sticking out of Smith’s pocket. After personally witnessing a
criminal offense, Godbey had probable cause to arrest Smith. Once Smith
was arrested, the officers were allowed to conduct a search incident to that
lawful arrest. Accordingly, we overrule Smith’s first assignment of error.
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OHIO FIRST DISTRICT COURT OF APPEALS
The Denial of the Motion to Appoint New Counsel
{¶27} In his second assignment of error, Smith argues that the trial
court erred by denying his request for new counsel. The decision whether to
appoint new counsel is within the sound discretion of the trial court. See
State v. Summerlin, 1st Dist. Hamilton No. C-160539, 2017-Ohio-7625, ¶ 9.
An indigent defendant must demonstrate good cause to warrant a
substitution of counsel. See State v. Bullock, 12th Dist. Clermont No.
CA2005-04-031, 2006-Ohio-598, ¶ 13.
{¶28} Here, Smith had drafted, but had never filed, a motion for new
counsel. When his appointed attorney brought the issue to the court’s
attention, Smith did not state any reasons to support the motion, and the trial
court denied the motion. Later that day, counsel again raised the issue to the
visiting judge. When provided the opportunity, Smith chose not to address
the motion or put forth any grounds for the request. Instead, he informed the
court that he wanted to address the motion for a fingerprint analysis and the
speedy-trial issue. Accordingly, there was no further discussion regarding the
appointment of new counsel.
{¶29} Because Smith failed to articulate a basis for the motion when
given two opportunities to do so, it cannot be said that Smith demonstrated
good cause to support the motion. Therefore, we find no abuse of discretion,
and overrule the second assignment of error.
The Rulings on the Pro Se Motions
{¶30} Smith asserts that the trial court erred by failing to rule on his
pro se motions. Specifically, he claims the trial court never ruled on his
motion for an independent laboratory analysis to determine whether the
cocaine was accurately weighed and his motion to dismiss based upon a
speedy-trial violation. Initially, we observe that Smith filed
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OHIO FIRST DISTRICT COURT OF APPEALS
his motions pro se, even though at all times throughout the proceedings below
he was represented by court-appointed counsel.
{¶31} In Ohio, trial courts need not address pro se motions when the
defendant is represented by counsel. See State v. Smith, 4th Dist. Highland
No. 09CA29, 2010-Ohio-4507, ¶ 100; State v. Davis, 10th Dist. Franklin No.
05AP-5039, 2006-Ohio-193, ¶ 12; State v. Greenleaf, 11th Dist. Portage No.
2005-P-0017, 2006-Ohio-4317, ¶ 70. Although a defendant has the right to
counsel or the right to act pro se, a defendant does not have any right to
“hybrid representation.” State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-
5471, 816 N.E.2d 227, paragraph one of the syllabus; State v. Thompson, 33
Ohio St.3d 1, 6-7, 514 N.E.2d 407 (1987).
{¶32} When a criminal defendant is represented by counsel and
counsel does not join in the defendant’s pro se motion or otherwise indicate a
need for the relief sought by the defendant pro se, the trial court cannot
properly consider the defendant's pro se motion. See State v. Davis, 10th
Dist. Franklin No. 05AP-193, 2006-Ohio-5039, ¶ 12; State v. Pizzaro, 8th
Dist. Cuyahoga No. 94849, 2011-Ohio-611, ¶ 7 (holding that “[o]ne who is
represented by counsel and who does not move the court to proceed pro se,
may not ‘act as co-counsel on his own behalf.’ ”), quoting Greenleaf at ¶ 70.
{¶33} We note that Smith requested that a fingerprint analysis be
conducted on the plastic baggies that contained the marijuana and cocaine,
and not a reweighing of the cocaine. When Smith addressed the court
regarding this motion, his trial counsel explained to the court why the motion
was without merit, and that counsel would not adopt or argue the motion.
Because counsel did not join in the pro se motion, the court did not err in
disregarding the motion.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶34} Smith also addressed the court regarding the pro se motion to
dismiss based on a speedy-trial violation. The court addressed defense
counsel and the prosecutor and requested that they review the case to
determine if there were a speedy-trial violation. After reviewing the docket,
Smith’s counsel assured the court that Smith’s speedy-trial rights had not
been violated. Once Smith’s counsel determined the motion was meritless,
the trial court did not err by failing to address Smith’s pro se motion. We
overrule this assignment of error.
Admission of Hearsay Evidence
{¶35} Smith argues in his fourth assignment of error that the trial
court erred by permitting the state to introduce hearsay statements. Smith
specifically challenges the 911 call and the rebuttal testimony of Brandon
Mattress regarding statements made by Hodge.
{¶36} Smith argues the 911 call was inadmissible hearsay that violated
Smith’s confrontation rights. However, Smith stipulated to the admissibility
of the 911 call and requested that the transcript of the 911 call be admitted as
evidence. By stipulating to the admissibility of the 911 call, Smith waived any
error and is precluded from challenging its admissibility on appeal. See In re
J.B., 10th Dist. Franklin No. 11AP-63, 2011-Ohio-3658, ¶ 9.
{¶37} Moreover, “911 calls are usually admissible under the excited
utterance or the present sense impression exception to the hearsay rule.”
State v. Crowley, 2d Dist. Clark No. 2009 CA 65, 2009-Ohio-6689. Because
911 calls seeking police assistance are not testimonial in nature, the
Confrontation Clause does not apply. See State v. McGee, 1st Dist. Hamilton
No. C-150496, 2016-Ohio-7510, ¶ 16.
{¶38} As to the rebuttal testimony, Smith argues that Brandon’s
testimony about his telephone conversations with Hodge on the night of the
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OHIO FIRST DISTRICT COURT OF APPEALS
burglary was inadmissible hearsay and an inadmissible prior inconsistent
statement.
{¶39} Evid.R. 613 governs impeachment by self-contradiction, and
section (B) of the rule provides that
(B) Extrinsic evidence of prior inconsistent statement of
witness. Extrinsic evidence of a prior inconsistent statement by
a witness is admissible if both of the following apply:
(1) If the statement is offered solely for the purpose of
impeaching the witness, the witness is afforded a prior
opportunity to explain or deny the statement and the opposite
party is afforded an opportunity to interrogate the witness on
the statement or the interests of justice otherwise require; (2)
The subject matter of the statement is one of the following:
(a) A fact that is of consequence to the determination of the
action other than the credibility of a witness;
(b) A fact that may be shown by extrinsic evidence
under Evid.R. 608(A), 609, 616(A), or 616(B);
(c) A fact that may be shown by extrinsic evidence under the
common law of impeachment if not in conflict with the Rules of
Evidence.
{¶40} Accordingly, Evid.R. 613(B) permits the impeachment of an
adverse witness with the witness's prior inconsistent statement when a proper
foundation is laid. See State v. Simpson, 1st Dist. Hamilton No. C-100789,
2011-Ohio-4578, ¶ 19. If the witness denies making the statement, extrinsic
evidence is permissible, provided that the evidence concerns a fact of
consequence and not a collateral matter. See State v. Pierce, 2011-Ohio-4873,
968 N.E.2d 1019, ¶ 82 (2d Dist.).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶41} In this case, Hodge, who testified for Smith, testified that he
had called Brandon on the night of the burglary to tell him the police were in
his apartment. Hodge denied telling Brandon that Smith had broken into his
apartment. Once Hodge denied making the statements, Brandon’s testimony,
which concerned a fact of consequence, was admissible.
{¶42} Therefore, the trial court did not abuse its discretion by
allowing the rebuttal testimony. The fourth assignment of error is overruled.
Other Acts Testimony
{¶43} Next Smith contends that the 911 call and Godbey’s testimony that he
knew Smith from other criminal dealings constituted inadmissible “other acts”
testimony. See Evid.R. 404(B). However, as previously discussed, Smith waived any
error with respect to the 911 call. Because Smith did not object to Godbey’s
testimony, he has forfeited all but plain error on appeal. See Crim.R. 52(B); State v.
Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22-23. Smith does
not explain how Godbey’s testimony constituted impermissible “other acts”
testimony, and has, therefore, failed to meet his burden to demonstrate plain error.
We overrule the fifth assignment of error.
Admission of Officers’ Testimony
{¶44} In his sixth assignment of error, Smith alleges the trial court erred in
permitting Officer Moyer and Sergeant Godbey to testify without being qualified as
experts that the bulk amount of cocaine indicated that it was for sale. Police officers
may offer lay opinion testimony under Evid.R. 701 if it is based on the officers’
perceptions through experience. State v. Martin, 1st Dist. Hamilton No. C-150054,
2016-Ohio-802, ¶ 16. A trial court's decision to admit evidence is reviewed under an
abuse-of-discretion standard. Id.{¶45} Both officers testified based on their knowledge and perceptions
through experience. Godbey testified that he had been an officer for 23 years, and
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OHIO FIRST DISTRICT COURT OF APPEALS
had conducted thousands of drug investigations. Based on his experience, the
amount of cocaine recovered was a substantial amount with a street value of
approximately $2,000. He further explained, without objection, that the amount
indicated distribution because a personal-use amount would be the size of a pea and
sell for $50. Moyer testified that based on his experience, the cocaine was in “bulk
packaging” consistent with how sellers package it. On this record, we find no abuse
of discretion.
{¶46} Smith also argues that Godbey testified as an expert when he testified
that Smith was “tampering with evidence.” Because Smith did not object to the
testimony, we address it under a plain-error standard. Under the plain-
error standard, we will not reverse a conviction unless, but for the error, the outcome
clearly would have been different. See State v. Reid, 1st Dist. Hamilton No. C-
050465, 2006-Ohio-6450, ¶ 16.
{¶47} Here, we find no plain error. Godbey was testifying about his
observations during the struggle that Smith was throwing the drugs. Additonally,
Godbey’s testimony was merely cumulative to Moyer’s and Pugh’s testimony and
cannot be said to have altered the outcome of the trial. The sixth assignment of error
is overruled.
Prosecutorial Misconduct
{¶48} In his seventh assignment of error, Smith contends the prosecutor
committed misconduct by asking the officers about the quantity of cocaine and
calling Brandon as a rebuttal witness. As previously discussed, the officers’
testimony and the rebuttal testimony were properly admitted. Smith further claims
the prosecutor’s closing argument contained misstatements of fact and law in
describing the burglary element of “likely to be present” and the trafficking element
of “intended for sale or resale by the offender or another person,” and the prosecutor
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OHIO FIRST DISTRICT COURT OF APPEALS
improperly vouched for Brandon. Smith concedes he failed to object to the remarks,
so our review is limited to plain error.
{¶49} Prosecutors are entitled to a certain degree of latitude during closing
argument. State v. Smith, 14 Ohio St.3d 13, 470 N.E.2d 883 (1984). Closing
arguments must be viewed in their entirety to determine whether the disputed
remarks were prejudicial. See State v. Carter, 2017-Ohio-1328, ___ N.E.3d ___, ¶
12 (1st Dist.). Prosecutorial misconduct rises to the level of plain error only if it is
clear the defendant would not have been convicted in the absence of the improper
comments. Id.{¶50} Having reviewed the prosecutor's closing argument, we find the
prosecutor's statements to be proper. Here, the prosecutor merely referred to
evidence contained in the record and asked the jury to determine whether such
evidence was credible. Moreover, the court informed the jury that closing arguments
are not evidence, and the trial court properly instructed on the law to be applied.
{¶51} Even if the prosecutor’s statements were improper, we find that the
outcome of the proceeding would not have been different absent such statements. In
light of the evidence presented at trial, Smith would have been convicted in the
absence of the prosecutor's remarks.
{¶52} Having found that the prosecutor did not make any improper remarks,
we overrule Smith’s seventh assignment of error.
Ineffective Assistance of Counsel
{¶53} In his eighth assignment of error, Smith argues that he received
ineffective assistance of counsel. Most of his claims concern the failure to object to
evidence that we have already concluded was admissible and the failure to object to
the prosecutor’s statements that we have already concluded were proper. Therefore,
we do not find that those failures amounted to ineffective assistance of counsel.
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{¶54} His remaining arguments concern counsel’s failure to adopt Smith’s
pro se motions and the failure to conduct enough voir dire.
{¶55} To prevail on an ineffective-assistance-of-counsel claim, Smith must
show trial counsel's performance fell below an objective standard of reasonableness
and he was prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 687-
688, 693, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to demonstrate prejudice,
Smith must establish that, but for counsel's errors, there is a reasonable probability
that the result of trial would have been different. State v. Burke, 97 Ohio St.3d 55,
2002-Ohio-5310, 776 N.E.2d 79, ¶ 6. The failure to make an adequate showing on
either prong is fatal to an ineffective-assistance-of-counsel claim. See Strickland at
697.
{¶56} Because of the difficulties inherent in making the evaluation of
counsel’s effectiveness after the fact, a court must indulge a strong presumption that
counsel's conduct falls within the wide range of reasonable professional assistance.
Therefore, the defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered sound trial strategy. Id. at
689-690.
{¶57} Counsel determined that the pro se motions had no merit and, based
on the record, that determination was sound trial strategy. The record demonstrates
that most of the questions counsel was prepared to ask in voir dire had already been
asked by the prosecutor, the questions counsel did ask were relevant, and counsel
made effective use of his peremptory challenges. Moreover, counsel’s conduct
during voir dire is presumed to be a matter of trial strategy. See State v. Perez, 124
Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 206.
{¶58} Based on this record, Smith failed to demonstrate that counsel was
deficient. We also note that Smith has failed to explain how counsel’s decisions were
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OHIO FIRST DISTRICT COURT OF APPEALS
deficient or resulted in any prejudice. Therefore, we overrule his eighth assignment
of error.
Sufficiency and Manifest Weight
{¶59} In his ninth assignment of error, Smith claims his convictions for
burglary, trafficking in cocaine, and tampering with evidence were not supported by
sufficient evidence and were against the manifest weight of the evidence.
{¶60} In a challenge to the sufficiency of the evidence, the question is
whether, after viewing the evidence in the light most favorable to the state, any
rational trier of fact could have found all the essential elements of the crime proved
beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492(1991), paragraph two of the syllabus. When considering a challenge to the weight of
the evidence, the court must review the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of the witnesses, and determine
whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and
created a manifest miscarriage of justice. State v. Thompkins, 78 Ohio St.3d 380,
387, 678 N.E.2d 541 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 485
N.E.2d 717 (1st Dist.1983), paragraph three of the syllabus.
{¶61} First, Smith claims that state failed to prove that the occupants of the
home were “likely to be present” to support the burglary conviction. Here, Brandon
testified that that he lived in the apartment, he had been there earlier but left to take
a friend to work, and it was very likely that he could have been home at the time of
the burglary. The jury was entitled to believe Brandon’s testimony, so Smith’s
conviction is not against the manifest weight of the evidence and was supported by
sufficient evidence.
{¶62} Next, he argues the state failed to prove the cocaine was intended for
sale or resale. Both officers testified that the amount of cocaine was inconsistent
with personal use and indicated trafficking. Moyer testified that the cocaine was
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OHIO FIRST DISTRICT COURT OF APPEALS
bulk packaged, typical packaging for trafficking. Finally, Godbey testified that a
personal use amount is the size of a pea and costs $50. The amount that Smith was
transporting had a street value of a few thousand dollars. Both officers testified
based on their experience. Viewing this evidence in a light most favorable to the
state, we conclude that the state proved the cocaine was intended for sale or resale.
{¶63} Finally, Smith claims the evidence was insufficient to prove Smith
intended to hinder an investigation because the bags containing drugs either fell out
of his pocket or were torn during the struggle. Three witnesses, Pugh, Moyer, and
Godbey, testified that Smith threw a bag of cocaine and a bag of marijuana that
spilled all over the apartment. Godbey also testified that he saw Smith rip the bag of
cocaine and throw it across the room. He also saw Smith rip the marijuana and
disperse the marijuana around the apartment. Moyer and Smith testified that they
attempted to collect all of the spilled drugs, and Godbey testified that they could not
recover all of it. All of this testimony was more than sufficient evidence to support
his tampering conviction.
{¶64} Therefore, we overrule Smith’s ninth assignment of error.
Sentencing
{¶65} In his final assignment of error, Smith contends the trial court erred in
sentencing him for burglary, trafficking in cocaine, possession of cocaine, possession
of marihuana, tampering with evidence, and on the community-control violation.
First, he argues that the trial court erred by imposing multiple sentences for allied
offenses. The state concedes the error. Accordingly, we vacate the sentences for
possession of cocaine and trafficking in cocaine, and remand the cause so that the
state may elect which offense to pursue for resentencing.
{¶66} Smith also claims the trial court erred in sentencing him because the
record does not support the sentence. R.C. 2953.08(G)(2) governs appellate review
of felony sentences. This court will only modify or vacate a sentence under R.C.
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OHIO FIRST DISTRICT COURT OF APPEALS
2953.08(G)(2) if it clearly and convincingly finds that either the record does not
support the mandatory sentencing findings or the sentence is otherwise contrary to
law. State v. White, 2013-Ohio-4225, 997 N.E.2d 629, ¶ 11 (1st Dist.).
{¶67} Smith argues the court failed to make the requisite findings to impose
consecutive sentences. However, the record shows that the trial court made the
required findings, announced them at the sentencing hearing, and incorporated
them into the sentencing entry. See State v. Bonnell, 140 Ohio St.3d 209, 2014-
Ohio-3177, 16 N.E.3d 659, syllabus. Therefore, the trial court did not err in
imposing consecutive sentences.
{¶68} Next, he argues the court failed to consider the principles and
purposes of sentencing pursuant to R.C. 2929.11 and 2929.12. While a trial court is
required to consider the purposes and principles of sentencing, it need not make
specific findings. See State v. Hendrix, 1st Dist. Hamilton Nos. C-150194 and C-
150200, 2016-Ohio-2697, ¶ 51. We can presume from a silent record that the trial
court considered the appropriate factors unless the defendant affirmatively shows
that the court has failed to do so. Id. Smith does not make any showing that the
court failed to consider the statutory factors, and the trial court expressly stated it
had considered the statutory factors. Therefore, Smith failed to demonstrate that the
sentences were clearly and convincing contrary to law.
{¶69} Smith contends the court failed to inform him of the requirement to
submit to DNA testing and the penalties for any failure. However, this court has held
that the statute does not confer any substantive rights on the defendant. See State v.
Taylor, 1st Dist. Hamilton No. C-150488, 2016-Ohio-4548, ¶ 5-6. Therefore, the
court's failure to notify Smith about DNA testing was harmless and did not prejudice
him.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶70} Accordingly, we sustain that part of Smith's assignment of error
challenging the multiple sentences for allied offenses and remand the cause for a new
sentencing hearing, and overrule the remainder of the assignment of error.
Conclusion
{¶71} We vacate Smith’s sentence in part, and we remand the cause for a
new sentencing hearing on the allied offenses of possession of cocaine and trafficking
in cocaine so that the state may elect which offense to pursue for resentencing. The
trial court’s judgement is affirmed in all other respects.
Judgment affirmed in part, sentence vacated in part, and cause remanded.
MYERS and MILLER, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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