State v. Zuniga

[Cite as State v. Zuniga, 2021-Ohio-196.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES:
: Hon. Craig R. Baldwin, P.J.
Plaintiff - Appellee : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
:
GERMAN ZUNIGA, : Case No. 2020 CA 0016
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County
Court of Common Pleas, Case No.
2019-CR-0399
JUDGMENT: Affirmed
DATE OF JUDGMENT: January 27, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GARY BISHOP JOSEPH C. PATITUCE
Prosecuting Attorney Patituce & Associates, LLC
Richland County, Ohio 16855 Foltz Industrial Parkway
Strongsville, Ohio 44149
By: JOSEPH C. SNYDER
Assistant Prosecuting Attorney
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No.2020 CA 0016 2
Baldwin, J.
{¶1} Appellant, German Zuniga, appeals the decision of the Richland County
Court of Common Pleas overruling his motion to suppress and finding him guilty of
trafficking in cocaine, a violation of R.C. 2925.03 (A)(2) & (C)(4)(g), a first-degree felony;
possession of cocaine, a violation of R.C. 2925.11 (A) & (C)(4)(f), a first-degree felony;
aggravated funding of drug trafficking, a violation of R.C. 2925.05 (A)(3) & (C)(1), a first-
degree felony; operating a vehicle with a hidden compartment used to transport a
controlled substance in violation of R.C. 2923.241 (C) & (F), a second-degree felony;
identity fraud, a violation of R.C. 2913.49 (B)(2) & (I)(2), a fifth degree felony; a forfeiture
specification pursuant to R.C. 2941.1417 as to the first three counts and a major drug
offender specification pursuant to R.C. 2941.1410 with regard to the aggravated funding
of drug trafficking charge and subsequently sentencing him to twenty-two and one-half
years in prison. The State of Ohio is appellee.
{¶2} Zuniga was a passenger in a vehicle driven by Kylie Newman on a trip from
Texas to Ohio. The vehicle was stopped for speeding by the Ohio State Highway Patrol.
As the driver searched for proof of insurance the Trooper led his dog around the vehicle.
The dog detected the presence of illegal drugs in the vehicle and the Trooper discovered
a large cache of cocaine in the false bottom of the toolbox and the driver, another
passenger and Zuniga were arrested and charged.
{¶3} All defendants moved to suppress the evidence discovered by the Trooper
and after a hearing, the trial court denied the motion and Zuniga changed his plea to no
contest and was found guilty.
Richland County, Case No.2020 CA 0016 3
STATEMENT OF THE CASE AND THE FACTS
{¶4} Trooper Cole Browne was on duty on February 6, 2019 when he was
advised to watch for a vehicle. He received a description of the vehicle, license plate
number, and the occupants. The Trooper was told that the vehicle may be carrying drugs
and that if he had probable cause to stop the vehicle he should do so.
{¶5} When Trooper Browne first saw the vehicle he estimated that it was
traveling at a speed in excess of the 55 mph limit. He confirmed the vehicle's speed with
a laser and discovered that the driver’s speed was 60 mph. The vehicle rapidly slowed
from 60 mph to 54 mph and then to 50 mph.
{¶6} Trooper Browne trailed the vehicle and pulled beside it to confirm the
number of passengers and to note their behavior. He saw three occupants and noticed
that the driver and the front seat passenger appeared to be conversing while looking
ahead and not making eye contact with each other. The Trooper described them as
looking rigid and uncomfortable in their seats. The passenger had a cell phone and was
holding it at what Trooper Browne characterized as an odd angle. While the Trooper
agreed that these behaviors were not illegal, he did consider them uncharacteristic of
“normal motoring public behavior.”
{¶7} Once the Trooper reached a location where it was safe to pull off the road
and the driver could not flee into an exit ramp, he activated his overhead lights to signal
the driver to pull over. The drive complied, but positioned the vehicle so the driver’s side
was very close to the highway. Because the vehicle was stopped close to the road,
Trooper Browne approached the passenger side of the vehicle and spoke with the driver
through the passenger window. He requested the driver's license and the driver, Kylie
Richland County, Case No.2020 CA 0016 4
Newman, began frantically rummaging through her purse. Trooper Browne also
requested proof of insurance at the outset of the stop. Zuniga passed documents from
Newman to the Trooper and the Trooper noted that both looked very uncomfortable and
Zuniga's hands were shaking as he passed the papers. Trooper Browne characterized
the behavior of the driver and Zuniga as more nervous than he has experienced in past
traffic stops.
{¶8} The proof of insurance that Newman provided had expired, so the Trooper
returned the document and asked if she had valid proof of insurance. She continued to
search and the Trooper asked her to exit the vehicle and enter his cruiser to make it easier
to talk with her. She declined the invitation to enter the cruiser claiming to be
claustrophobic, but did get out of the vehicle to speak with the Trooper. Newman
suggested that the Trooper call her insurance company to confirm the validity of her
coverage, but the Trooper was not willing to do so. He suggested that she may be able
to find proof of her coverage on her cell phone. She agreed and began to search her
phone.
{¶9} While she searched her cell phone for evidence of insurance, the Trooper
asked about the starting point and destination of her trip. She explained that they were
visiting Zuniga's relative in a Texas hospital where he was being treated for cancer, but
she could not remember the name of the facility. She confirmed that she visited the
relative and that they were in Texas for one week. When the Trooper asked where she
was going she replied that she was going home to Lorain, Ohio, but the route she was
driving took her away from Lorain.
Richland County, Case No.2020 CA 0016 5
{¶10} The uncharacteristic nervousness of the driver and passenger and the
driver's answers to questions, in the context of the information that the car may contain
drugs, led Trooper Browne to read the driver her Miranda rights. Once he read her rights,
she asked for the opportunity to speak with her lawyer. She reached her attorney by
phone, and while she talked with her attorney, Trooper Browne moved away from her and
back toward her vehicle.
{¶11} While Newman was speaking with her attorney, Trooper Browne asked
Zuniga where they were heading. He answered “Lorain,” but quickly corrected his
response and explained that he was going to pick up a dress for his daughter and the
driver did not know where they were going. Trooper Brown interpreted this response as
inconsistent with the driver’s description of their destination and further raised his
suspicion. At this point Trooper Browne decided that he would use his dog, Atos, to sniff
around the vehicle.
{¶12} Trooper Browne and his dog, Atos, completed three passes around the
vehicle. On the first pass, Atos did not alert to any scents and did not indicate the
presence of narcotics. On the second pass, Atos inhaled hot exhaust from the vehicle
that interfered with his ability to perform, so Trooper Browne made a third pass. During
that sweep of the vehicle, Atos alerted to the scent of narcotics and indicated that there
were drugs in the vehicle in the vicinity of a tool box in the back of the vehicle. Trooper
Browne opened the toolbox and discovered a false bottom concealing a very large
amount of a white powder in plastic bags, later confirmed to be cocaine.
{¶13} Zuniga was charged with trafficking in cocaine, a violation of R.C. 2925.03
(A)(2) & (C)(4)(g), a first-degree felony; possession of cocaine, a violation of R.C. 2925.11
Richland County, Case No.2020 CA 0016 6
(A) & (C)(4)(f), a first-degree felony; aggravated funding of drug trafficking, a violation of
R.C. 2925.05 (A)(3) & (C)(1), a first-degree felony; operating a vehicle with a hidden
compartment used to transport a controlled substance in violation of R.C. 2923.241 (C)
& (F), a second-degree felony; identity fraud, a violation of R.C. 2913.49 (B)(2) & (I) (2),
a fifth degree felony with a forfeiture specification pursuant to R.C. 2941.1417 as to the
first three counts and a major drug offender specification pursuant to R.C. 2941.1410 with
regard to the aggravated funding of drug trafficking charge.
{¶14} Zuniga entered a plea of not guilty and filed a motion to suppress the
evidence discovered in the search of the vehicle. At the hearing on the motion, Trooper
Browne testified regarding the notification he received regarding the vehicle and the
passengers and his traffic stop based upon speeding. He described the conversation
with the driver and the occupants and his concern that the driver and Zuniga exhibited
excessively nervous behaviors and gave inconsistent responses to questions about their
destination. He concluded that the facts warranted using Atos to check for drugs, so,
while Kylie Newman was searching for proof of insurance, he conducted three sweeps of
the vehicle ultimately leading to the discovery of cocaine.
{¶15} Trooper Brown also described his training to become a canine officer
certified to use a dog to detect narcotics as well as his dog’s training to become certified
to detect drugs. He described his experience with Atos, the dog assigned him, confirmed
that both he and the dog were regularly certified to search for drugs and identified an
exhibit consisting of records supporting Atos’ training and reliability.
{¶16} The defendants offered the expert testimony of Andre Falco Jimenez who
was critical of the Trooper’s use of Atos to search for evidence of narcotics. Mr. Jiminez
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claimed Trooper Browne's handling of Atos was inappropriate, leading the dog to alert
not as a result of the scent of narcotics, but as a result of the improper encouragement
by Trooper Browne. He questioned the training of Atos, and stated that his behavior
during the passes around the vehicle indicates the dog was not focused on the task and
was primarily acting to please Trooper Browne. He was also critical of how Atos alerted
to the scent of the cocaine, laying down. He opined that the more acceptable and more
distinct alert is to sit. Mr. Jiminez concluded by stating his opinion that Atos did not indicate
the presence of illegal drugs in the vehicle.
{¶17} Sergeant Barrett of the Ohio State Highway Patrol was offered by the state
in rebuttal of Mr. Jimenez's testimony. Barrett described his background in canine training
and noted that his current primary responsibilities at the Ohio State Highway Patrol
include supervision of the canine training program. He described the training received by
Atos and Trooper Browne as well as the regular certification and qualification of Atos and
Trooper Browne. He concluded that the sweep of the vehicle was appropriately
conducted and that Atos was not mishandled, but clearly signaled his discovery of
narcotics in the vehicle.
{¶18} The trial court denied the motion to suppress and Zuniga changed his plea
to no contest. His change of plea was accepted by the trial court and he was sentenced
to an aggregate of twenty-two and one-half years in prison and ordered to forfeit
$1741.00. Zuniga filed a timely appeal and submitted five assignments of error:
{¶19} “I. THE TRIAL COURT ERRED WHEN IT FOUND THAT TROOPER
BROWNE DID NOT EXTEND THE TRAFFIC STOP BEYOND ITS ORIGINAL SCOPE IN
ORDER TO CONDUCT A K9 SNIFF.”
Richland County, Case No.2020 CA 0016 8
{¶20} “II. THE TRIAL COURT ERRED IN FINDING THAT THE K9 ALERTED
ESTABLISHING PROBABLE CAUSE TO ALLOW A SEARCH OF THE VEHICLE AFTER
THE K9 HAD BECOME INCAPACITATED WHEN THE K9 BURNT ITS NOSE ON THE
EXHAUST OF THE VEHICLE .”
{¶21} “III. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT QUALIFIED
SERGEANT BARRETT AS AN EXPERT IN K9 TRAINING AND DRUG DETECTION.”
{¶22} “IV. HE TRIAL COURT ERRED WHEN IT FAILED TO MERGE COUNTS
ONE AND THREE OF THE INDICTMENT BECAUSE THEY ARE ALLIED OFFENSES.”
{¶23} “V.THE TRIAL COURT ERRED WHEN IT IMPOSED CONSECUTIVE
SENTENCES.”
I.
{¶24} In his first assignment of error Zuniga contends that the trial court erred by
denying the motion to suppress because it erroneously concluded that Trooper Browne
had not extended the traffic stop beyond what was necessary to issue a traffic citation.
{¶25} Appellate review of a motion to suppress presents a mixed question of law
and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.
When ruling on a motion to suppress, the trial court assumes the role of trier of fact and
is in the best position to resolve questions of fact and to evaluate witness credibility. See
State v. Dunlap, 73 Ohio St.3d 308, 314, 652 N.E.2d 988 (1995); State v. Fanning, 1 Ohio
St.3d 19, 20, 437 N.E.2d 583 (1982). Accordingly, a reviewing court must defer to the trial
court's factual findings if competent, credible evidence exists to support those findings.
See Burnside, supra; Dunlap, supra; State v. Long, 127 Ohio App.3d 328, 332, 713
N.E.2d 1 (4th Dist. 1998); State v. Medcalf, 111 Ohio App.3d 142, 675 N.E.2d 1268 (4th
Richland County, Case No.2020 CA 0016 9
Dist. 1996). However, once this Court has accepted those facts as true, it must
independently determine as a matter of law whether the trial court met the applicable legal
standard. See Burnside, supra, quoting State v. McNamara, 124 Ohio App.3d 706, 707
N.E.2d 539 (4th Dist. 1997); See, generally, United States v. Arvizu, 534 U.S. 266, 122
S.Ct. 744, 151 L.Ed.2d 740 (2002); Ornelas v. United States, 517 U.S. 690, 116 S.Ct.
1657, 134 L.Ed.2d 911 (1996). That is, the application of the law to the trial court's findings
of fact is subject to a de novo standard of review Ornelas, supra. State v. Johns, 5th Dist.
No. 19-CA-5, 2019-Ohio-4269, 146 N.E.3d 1286, ¶ 11.
{¶26} Zuniga does not contest the validity of the traffic stop, but he does complain
that the stop was merely a pretext for the search for drugs. We previously addressed
such a criticism and concluded that "[a] traffic stop is valid under the Fourth Amendment
if the stop is based on an observed traffic violation or if the police officer has a reasonable,
articulable suspicion a traffic or equipment violation has occurred or is occurring. City of
Dayton v. Erickson, (1996), 76 Ohio St.3d 3. It is irrelevant the officer may have had other
subjective motives for stopping the vehicle. Id. " State v. Ackerson, 5th Dist. Stark
No. 2012CA00228, 2013-Ohio-4020, ¶ 21. Exceeding the speed limit, even by five miles
per hour, is a traffic violation that validates the Trooper’s actions. Further, the Trooper
claimed that he regularly stopped drivers for such a violation.
{¶27} Fifteen minutes passed between the time that the Trooper stopped the
vehicle and the discovery of cocaine in the tool box. Appellant argues that Trooper
Browne had the obligation to promptly issue a citation or a warning and end the stop
before the discovery of the narcotics, but he does not expressly state what triggered that
duty. Trooper Browne asked the driver for proof of insurance as he was obligated to do
Richland County, Case No.2020 CA 0016 10
under R.C. 4509.101(D)(2). The driver first offered what turned out to be evidence of an
expired insurance policy, so Trooper Browne asked the driver for proof of an active policy.
The driver never conceded that she did not have an active policy or could not locate proof
and continued searching for evidence while the Trooper waited.
{¶28} Trooper Browne explained that his next step during this stop was contingent
upon Newman producing proof of insurance. He stopped Newman for exceeding the
speed limit by five miles per hour. Trooper Browne explained that he would typically issue
a warning in these circumstances if the driver produces proof of insurance. If the driver
cannot supply proof of insurance, he would issue a citation and mark a box on the citation
that proof of insurance had not been shown at the stop. The Trooper described this
procedure as providing a driver, including Newman, the opportunity to avoid a citation.
{¶29} Zuniga contends that the Trooper could have issued a warning or a traffic
ticket and released the driver and that the extension of the stop was unreasonable. He
notes that the Trooper could have noted the failure to produce proof of insurance on the
citation and allowed the driver to present the proof to the court pursuant to R.C. 4509.101.
While the Trooper may have taken a different approach, he decided to wait for the proof
of insurance, and the issue before this court is whether that delay was unreasonable
under the circumstances.
{¶30} The Ohio Supreme Court has held,
[W]hen detaining a motorist for a traffic violation, an officer may delay the
motorist for a time period sufficient to issue a ticket or a warning. State v.
Keathley (1988), 55 Ohio App.3d 130, 131 [562 N.E.2d 932]. This measure
includes the period of time sufficient to run a computer check on the driver's
Richland County, Case No.2020 CA 0016 11
license, registration, and vehicle plates. State v. Bolden, Preble App. No.
CA2003–03–007, 2004–Ohio–184 [2004 WL 77617], ¶ 17, citing Delaware
v. Prouse (1979), 440 U.S. 648, 659, 99 S.Ct. 1391 [59 L.Ed.2d 660]. “In
determining if an officer completed these tasks within a reasonable length
of time, the court must evaluate the duration of the stop in light of the totality
of the circumstances and consider whether the officer diligently conducted
the investigation. State v. Carlson (1995), 102 Ohio App.3d 585, 598–599
[657 N.E.2d 591], citing State v. Cook (1992), 65 Ohio St.3d 516, 521–522
[605 N.E.2d 70], and U.S. v. Sharpe (1985), 470 U.S. 675, 105 S.Ct. 1568[84 L.Ed.2d 605].
State v. Batchili, 113 Ohio St.3d 403, 2007–Ohio–2204, 865 N.E .2d 1282, ¶ 12.
{¶31} To justify a continued detention beyond the normal period required to issue
a citation the officer must have a “reasonable, articulable suspicion of criminal activity
beyond that which prompted the initial stop.” Batchili, ¶ 15. “In determining whether a
detention is reasonable, the court must look at the totality of the circumstances.” State v.
Matteucci, 11th Dist. No. 2001–L–205, 2003–Ohio–702, ¶ 30, citing State v. Bobo, 37
Ohio St.3d 177, 178, 524 N.E.2d 489(1988).
{¶32} In State v. Guinto, 5th Dist. Ashland No. 12-COA-031, 2013-Ohio-2180 we
found that a thirty-one minute delay attributable to the necessity that the driver provide
valid proof of insurance was not an unreasonable extension of the detention of the parties.
In that case, just as in this case, the Trooper was "waiting on the current insurance card
for the driver and was asking questions of the occupants based upon the “indicators” that
the Trooper observed." Id. at ¶ 34. In this case the detention was fifteen minutes from
Richland County, Case No.2020 CA 0016 12
the beginning of the stop until the drug dog indicated the presence of an illegal drug.
Once the drug dog gave the indication, the Trooper had probable cause to search that
vehicle for contraband and further extend the stop.
{¶33} Considering the totality of the circumstances, we find that the duration of
the stop was not unreasonable and the Trooper diligently conducted his investigation. No
violation of Zuniga’s Fourth Amendment rights has been demonstrated.
{¶34} The first assignment of error is overruled.
II.
{¶35} Zuniga's second assignment of error is initially presented as an error
relating to the consequences of Atos inhaling exhaust fumes and "burning" his nose, but
includes argument regarding the credibility of witnesses and the alleged obligation of the
court to issue a finding that Atos was reliable. Pursuant to App.R. 12(A)(1)(b), appellate
courts must “ ‘determine [an] appeal on its merits on the assignments of error set forth in
the briefs under App.R. 16.’ Thus, this court rules on assignments of error only, and will
not address mere arguments.” Ellinger v. Ho, 10th Dist. No. 08AP–1079, 2010–Ohio–
553, ¶ 70, quoting In re Estate of Taris, 10th Dist. No. 04AP–1264, 2005–Ohio–1516, ¶ 5.
Bonn v. Bonn, 10th Dist. Franklin No. 12AP-1047, 2013-Ohio-2313, ¶ 9. In the interest of
justice we will address the issues presented in the appellant’s brief as well as the
assignment of error.
{¶36} Zuniga makes reference to the lack of an express finding by the trial court
that Atos was reliable, but provides no authority that requires such a finding. Further, he
Richland County, Case No.2020 CA 0016 13
failed to make this argument before the trial court.1 As this alleged error is not supported
by any authority aside from counsel’s assertion, because it is not described in the
assignment of error, and because it was not argued before the trial court, we will give it
no further consideration and consider the argument regarding the reliability of Atos.
{¶37} The State must establish a dog's reliability by adducing evidence of its
training and certification before an alert by the dog may be used to support a
determination of probable cause, State v. Lopez, 166 Ohio App.3d 337, 2006–Ohio–
2091, 850 N.E.2d 781, ¶ 25 (1st Dist.). Evidence of the K9's training and certification may
be either testimonial or documentary. State v. Mangan, 2d Dist. Montgomery No. 23263,
2009–Ohio–6137.
{¶38} Trooper Browne provided the requisite testimonial evidence regarding Atos'
training and certifications and supplemented it with documents verifying the dog’s training
and reliability. We have reviewed the record and find that the state provided sufficient
evidence to demonstrate Atos' training, certification and reliability.
{¶39} Once the state established reliability, Zuniga had the opportunity to attack
the dog's ‘credibility’ by evidence relating to training procedures, certification standards,
and real-world reliability.” (Citation omitted). State v. Lopez, Hamilton App. No. C–
050088, 2006–Ohio–2091, ¶ 5. He did so by offering the testimony of an expert, Andre
Falco Jimenez, who testified that he "did not observe the hallmarks of a well-trained,
successful K9 doing scent detection.” His ultimate opinion was that K9 Atos fell short of
what one would expect of a typical dog trained to search vehicles. Jimenez was critical of
1
The trial court asked that post hearing briefs regarding the motion to suppress be filed on Wednesday, December
11, 2019 and that he would issue his decision on Thursday, December 12, 2019. No briefs were filed on December
11, 2019 and the court issued its ruling on December 12th.
Richland County, Case No.2020 CA 0016 14
Trooper Browne's handling of the dog and he felt the dog exhibited strange behaviors.
He concluded that there was no alert, or indication by the dog that the vehicle was carrying
illegal drugs
{¶40} Zuniga is also critical of the dog's performance based upon a comment by
the state's expert that the dog was incapacitated during the stop as a result of inhaling
hot fumes. The state’s expert, Sergeant Barrett, noted that the affect was temporary and
Zuniga's expert, Jimenez, does not support Zuniga’s contention as he opined that Atos
was not near the exhaust long enough for a burn to result.
{¶41} On rebuttal, Sergeant Barrett described his own credentials and offered his
opinion that Atos and Trooper Browne were properly trained and that while he had some
criticism of Trooper Browne, Atos performed appropriately and the dog’s indication of the
presence of drugs was valid.
{¶42} Zuniga's argument under this assignment of error is reduced to a contest of
credibility in his concluding sentences: "The trial court failed to rule on K9 Atos' reliability,
and instead erroneously validated the sniff and subsequent search based on the
credibility of the State's witnesses. As such, the trial court erred in denying Appellant's
Motion to Suppress." We concluded above the appellant has provided no authority to
support an obligation of the trial court to issue a finding of reliability, so that assertion will
be disregarded. The remaining issue is whether the trial court erred by not considering
Mr. Jimenez more credible.
{¶43} During a suppression hearing, the trial court assumes the role of trier of fact
and, as such, is in the best position to resolve questions of fact and to evaluate witness
credibility. State v. Brooks, 75 Ohio St.3d 148, 154, 661 N.E.2d 1030 (1996). A reviewing
Richland County, Case No.2020 CA 0016 15
court is bound to accept the trial court's findings of fact if they are supported by competent,
credible evidence. State v. Medcalf, 111 Ohio App.3d 142, 145, 675 N.E.2d 1268 (4th
Dist.1996). We have reviewed the testimony of both experts and the documentary
evidence provided regarding both and we find that the trial court's decision is supported
by competent, credible evidence.
{¶44} Zuniga's second assignment of error is overruled.
III.
{¶45} Zuniga contends the trial court erred by permitting Sergeant Barrett to testify
as an expert in training dogs in drug detection in his third assignment of error. Pursuant
to Evid.R. 104(A), the trial court determines whether a witness qualifies as an expert, and
that determination will be overturned only for an abuse of discretion. State v. Hartman, 93
Ohio St.3d at 285, 754 N.E.2d 1150; State v. Williams (1983), 4 Ohio St.3d 53, 58, 4 OBR
144, 446 N.E.2d 444, as quoted in State v. Thomas, 97 Ohio St.3d 309, 2002–Ohio–
6624, 779 N.E.2d 1017 ¶ 46.
{¶46} The Supreme Court of Ohio succinctly described the analysis for a
determination of whether a witness may serve as an expert in State v. Thomas, 97 Ohio
St.3d 309, 2002–Ohio–6624, 779 N.E.2d 1017 ¶ 46:
Neither special education nor certification is necessary to confer
expert status upon a witness. “The individual offered as an expert need not
have complete knowledge of the field in question, as long as the knowledge
he or she possesses will aid the trier of fact in performing its fact-finding
Richland County, Case No.2020 CA 0016 16
function.” State v. Hartman, 93 Ohio St.3d at 285, 754 N.E.2d 1150; State
v. Baston, 85 Ohio St.3d 418, 423, 709 N.E.2d 128.
{¶47} Sergeant Barrett was offered as an expert based upon nearly a decade of
experience in "oversight and maintenance of Highway Patrol's thirty-five drug
detection/patrol canine teams, training the Ohio State Highway Patrol's future canine
trainers, selecting and testing canines and handlers for training, and oversight of
maintenance training."
{¶48} Zuniga argues this experience must be disregarded because he had not
previously testified and because he trained Trooper Browne. We find that these two
points go to the weight to be given Sergeant Barrett's testimony and are not relevant to
his qualifications as an expert.
{¶49} Sergeant Barrett provided sufficient evidence to demonstrate knowledge
and experience in the field sufficient to assist the court in its determination. We hold that
the trial court did not abuse its discretion in finding that Sergeant Barrett was qualified to
serve as an expert.
{¶50} The third assignment of error is overruled.
IV.
{¶51} Zuniga contends, in his fourth assignment of error, that the trial court erred
when it failed to merge the charges of Aggravated Funding of Drug Trafficking and the
Trafficking in Cocaine for sentencing purposes because these charges were allied
offenses of similar import.
Richland County, Case No.2020 CA 0016 17
{¶52} Appellate review of an allied-offense question is de novo. State v. Miku, 5th
Dist. No. 2017 CA 00057, 2018-Ohio-1584, ¶ 70,appeal not allowed,154 Ohio St.3d 1479,
2019-Ohio-173, 114 N.E.3d 1207 (2019), quoting State v. Williams, 134 Ohio St.3d 482,
2012-Ohio-5699, 983 N.E.2d 1245, ¶ 12.
{¶53} Revised Code 2941.25 protects a criminal defendant's rights under
the Double Jeopardy Clauses of the United States and Ohio Constitutions by
prohibiting convictions of allied offenses of similar import:
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.
Where the defendant's conduct constitutes two or more offenses of
dissimilar import, or where his conduct results in two or more offenses of
the same or similar kind committed separately or with a separate animus as
to each, the indictment or information may contain counts for all such
offenses, and the defendant may be convicted of all of them.
State v. Thompson, 5th Dist. Licking No. 2019 CA 00097, 2020-Ohio-3249, ¶ 15.
{¶54} The application of R.C. 2941.25 requires a review of the subjective facts of
the case in addition to the elements of the offenses charged. State v. Hughes, 5th Dist.
Coshocton No. 15CA0008, 2016-Ohio-880, ¶ 21. In a plurality opinion, the Ohio Supreme
Court modified the test for determining whether offenses are allied offenses of similar
import. State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. The
Richland County, Case No.2020 CA 0016 18
Court directed us to look at the elements of the offenses in question and determine
“whether it is possible to commit one offense and the other with the same
conduct.”(Emphasis sic). Id. at ¶ 48. If the answer to such question is in the affirmative,
the court must then determine whether or not the offenses were committed by the same
conduct. Id. at ¶ 49. If the answer to the above two questions is yes, then the offenses
are allied offenses of similar import and will be merged. Id. at ¶ 50. If, however, the court
determines that commission of one offense will never result in the commission of the
other, or if there is a separate animus for each offense, then the offenses will not merge.
Id. at ¶ 51.
{¶55} Johnson's rationale has been described by the Court as “incomplete.” State
v. Earley, 145 Ohio St.3d 281, 2015-Ohio-4615, 49 N.E.3d 266, ¶ 11. The Supreme Court
of Ohio has further instructed us to ask three questions when a defendant's conduct
supports multiple offenses: “(1) Were the offenses dissimilar in import or significance? (2)
Were they committed separately? and (3) Were they committed with separate animus or
motivation? An affirmative answer to any of the above will permit separate convictions.
The conduct, the animus, and the import must all be considered.” State v. Ruff, 143 Ohio
St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 31.
{¶56} Zuniga was charged with Trafficking in Cocaine, a violation of R.C.
2925.03(A)(2) and Aggravated Funding of Drug Trafficking in violation of R.C.
2925.05(A)(3) and he claims these charges must merge as allied offenses of similar
import. The Trafficking charge states “[n] person shall knowingly * * * [p]repare for
shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled
substance or a controlled substance analog, when the offender knows or has reasonable
Richland County, Case No.2020 CA 0016 19
cause to believe that the controlled substance or a controlled substance analog is
intended for sale or resale by the offender or another person.” R.C. 2925.03(A)(2). The
funding charge makes it a crime to "knowingly provide money or other items of value to
another person with the purpose that the recipient of the money or items of value use
them to obtain any controlled substance for the purpose of violating section 2925.04 of
the Revised Code or for the purpose of selling or offering to sell the controlled substance
in the following amount * * * [i]f the drug to be sold or offered for sale is cocaine or a
compound, mixture, preparation, or substance containing cocaine, an amount of the
cocaine that equals or exceeds five grams.” R.C. 2925.05(A)(3).
{¶57} The indictment described the trafficking offense as occurring on February 6,
2019 and the funding offense occurring over a period of time beginning July 1, 2015 and
ending eight months prior to February 6, 2019 and was comprised of individual wire
transfers of funds.
{¶58} We find that the trial court correctly determined that the charges did not
merge. Under the Johnson analysis while it may be possible to commit both offenses
with the same conduct, in this case it is evident that the multiple wire transfers comprising
the funding and the February 6, 2019 act of trafficking were not committed by the same
conduct.
{¶59} The Ruff opinion leads us to the same conclusion. We have reviewed the
record and we find that the act of funding the purchases and the acting of shipping and
transporting are of dissimilar import, as the harm from each is separate and identifiable
and all were committed separately. Further, the commission of the first offense will not
necessarily lead to the commission of the second offense. And, while these offenses
Richland County, Case No.2020 CA 0016 20
were arguably committed with the same motivation, that finding alone is insufficient to
support merger.
{¶60} The fourth assignment of error is overruled.
V.
{¶61} In his fifth assignment of error, Zuniga contends the trial court erred when it
imposed consecutive sentences under R.C. 2929.14.
{¶62} The trial court found that “consecutive sentences are necessary to protect
the public from future crime or to punish the offender and consecutive sentences are not
disproportionate to the seriousness of the offender's conduct and to the danger the
offender poses to the public, and because:
X The offender committed one or more of the multiple offenses while being a
fugitive from justice.
X At least two of the multiple offenses were committed as part of one or more
courses of conduct, and the harm caused by two or more of the multiple offenses
so committed was so great or unusual that no single prison term for any of the
offenses committed as part of any of the courses of conduct adequately reflects
the seriousness of the offender's conduct.
X The offender's history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the offender.”
(Sentencing Entry, Jan. 7, 2020).
Richland County, Case No.2020 CA 0016 21
{¶63} Revised Code 2929.14(C)(4) authorizes the trial court to impose
consecutive sentences when it finds such a penalty is necessary to protect the public
from future crime or to punish the offender and that consecutive sentences are not
disproportionate to the seriousness of the offender's conduct and to the danger the
offender poses to the public. The Code also requires that the trial court find that one of
three conditions apply and, in this case, the court found all three conditions present, albeit
with some liberties taken with the first condition.2
{¶64} Our authority to modify or vacate the trial court’s sentence is limited to those
circumstances where we clearly and convincingly find 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[or] [t]hat the sentence is otherwise contrary to law."
R.C. 2953.08(G)(2)(a), (b). Clear and convincing evidence is that “‘which will produce in
the mind of the trier of facts a firm belief or conviction as to the facts sought to be
established.’ ” State v. Silknitter, 3rd Dist. Union No. 14–16–07, 2017–Ohio–327, ¶ 7
quoting State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, ¶ 1, quoting Cross v.
Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. Clear
and convincing evidence is that measure or degree of proof which is more than a mere
“preponderance of the evidence,” but does not require the certainty of “beyond a
reasonable doubt.” Marcum, at ¶ 22 quoting Ledford.
2
The trial court edited 2919.14(C)(4)(a) to read “The offender committed one or more of the multiple offenses
while being a fugitive from justice the offender was awaiting trial or sentencing, was under a sanction imposed
pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a
prior offense.” (Sentencing Entry, Jan. 7, 2020).
Richland County, Case No.2020 CA 0016 22
{¶65} Zuniga's argument reverses the standard of review as he argues that "[t]he
record does not clearly and convincingly support any of the three required findings under
R.C. 2929.14(C)( 4)," that "* * * the trial court's finding under R.C. 2929 .14(C)( 4)(b) is
not supported by clear and convincing evidence" and that "* * * the record does not
support the trial court's finding by clear and convincing evidence." To warrant modification
of the sentence, Zuniga must show clear and convincing evidence that the record does
not support the sentence. State v. Kitts, 5th Dist. Knox No. 17 CA 09, 2018-Ohio-366,
¶ 21. Zuniga is attempting to improperly shift the burden to the state to show that the
sentence was supported by clear and convincing evidence which is not the correct
standard of review. This misstatement of the standard of review undermines Zuniga's
argument and, when we apply the correct standard of review, we find no error.
{¶66} Zuniga takes issue with the trial court's finding that his offenses "were
committed as part of one or more courses of conduct, and the harm caused by two or
more of the multiple offenses so committed was so great or unusual that no single prison
term for any of the offenses committed as part of any of the courses of conduct adequately
reflects the seriousness of the offenders conduct." He contends that as a result of his
arrest, he caused no harm.
{¶67} While Zuniga's was denied the opportunity to distribute the twenty-two
pounds of cocaine he brought into Ohio, his actions of purchasing and transporting such
a large amount supports the illicit drug industry which has caused continuous harm to the
public and underlies many criminal offenses. Zuniga has financed the production of more
cocaine, increasing the likelihood of future criminal offenses by others and continued drug
addiction as well as all of the burdens the illegal drug market imposes on the public.
Richland County, Case No.2020 CA 0016 23
Zuniga's argument that he has committed no harm ignores the consequences of his
actions.
{¶68} We find that Zuniga has not provided clear and convincing evidence that
the record did not support the trial court’s conclusion that the multiple wire transmissions
used to fund drug trafficking and the trafficking of twenty-two pounds of cocaine are
multiple offenses that were committed as part of one or more courses of conduct, and the
harm caused by then was so great or unusual that no single prison term for any of the
offenses committed as part of any of the courses of conduct adequately reflects the
seriousness of the offender's conduct. R.C. 2929.14(C)(4)(b). The record before the trial
court supports its finding that consecutive sentences were appropriate to protect the
public, considering the nature of the offenses committed by Zuniga.
{¶69} The fifth assignment of error is denied.
{¶70} The decision of the Richland County Court of Common Pleas is affirmed.
By: Baldwin, J.
Wise, John, P.J. and
Delaney, J. concur.