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State of Ohio v. Megan L. Taylor

October 3, 2010

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
MEGAN L. TAYLOR, DEFENDANT-APPELLANT.



Appeal from Seneca County Common Pleas Court Trial Court No. 10CR0143

The opinion of the court was delivered by: Rogers, P.J.

Cite as State v. Taylor,

OPINION

Judgment Affirmed in Part, Reversed in Part and Cause Remanded Date of Decision:

{¶1} Defendant-Appellant, Megan L. Taylor ("Taylor"), appeals the judgment of the Court of Common Pleas of Seneca County, convicting and sentencing her on two felony counts. On appeal, Taylor argues that the jury verdict was against the manifest weight of the evidence; that she received ineffective assistance of counsel; that the trial court erred in sentencing her for both counts of aggravated trafficking as they were allied offenses; and, that the final judgment entry and the nunc pro tunc judgment entry should be void as the trial court cited the wrong section of the Ohio Revised Code. Finding that the evidence supported the jury's verdict, that Taylor has failed to establish ineffective assistance of counsel, and that the offenses were not allied offenses, we affirm in part the decision of the trial court. Finding that the trial court committed several clerical errors in the judgment entry and erred in awarding restitution, we reverse in part the judgment of the trial court.

{¶2} On July 29, 2010, the Seneca County Grand Jury indicted Taylor on two counts of aggravated trafficking in drugs in violation of R.C. 2925.03(A)(1), (C)(1)(b), felonies of the third degree.*fn1 The two charges arose from a contract between the Seneca County Drug Task Force and a confidential informant ("CI") which provided that the CI would execute three drug purchases in exchange for leniency in the CI's pending charges. An arrest warrant was issued for Taylor by the Seneca County Common Pleas Court on August 3, 2010. On August 19, 2010, Taylor appeared at arraignment. On September 24, 2010, Taylor entered a plea of not guilty. On October 28, 2010, the matter proceeded to a jury trial. On count I, the jury rendered a verdict of guilty and made the additional finding that the offense occurred within the vicinity of a juvenile. On count II, the jury rendered a verdict of guilty but did not make the additional finding. On November 23, 2010, the trial court sentenced Taylor to three years in prison for count I and twelve months in prison for count II, to be served concurrently. The trial court imposed restitution in the amount of fifty dollars to the Seneca County Drug Task Force METRICH Enforcement Unit.

{¶3} At trial, the State presented five witnesses, including Detective Donald Joseph, a detective sergeant with the Seneca County Sheriff's Office; Scott Dobransky, a forensic scientist for the Ohio Bureau of Criminal Identification and Investigation; Detective Matthew Armstrong, a detective for the Fostoria Police Department assigned to the Seneca County Drug Task Force; Rachel Eckert ("the CI") the confidential informant; and, Detective Charles Boyer, a unit coordinator for the Seneca County Drug Task Force. The defense presented Appellant Taylor. The State's case in chief adduced the following relevant evidence.

{¶4} Detective Joseph testified that he was involved in a controlled buy on November 6, 2009, the subject of which was Megan Taylor. He testified that he received a phone call reporting that the Seneca County Drug Task Force had arranged for a CI to buy five pills of Percocet, which contained Oxycodone, a Schedule II controlled substance, on November 6, 2009 from Taylor. Detective Joseph explained that the buy was to take place at Taylor's residence in Tiffin, Ohio. On November 6, 2009, the CI and her vehicle were searched, the CI was provided $25.00, and was fitted with an audio transmitter and digital recorder which allowed the CI and Detective Joseph to communicate as well as record the transaction. Detective Joseph stated that he followed the CI to the entrance to the mobile home park in which Taylor resided, where he parked, while the CI continued to the residence. He testified that he could hear the CI enter Taylor's residence; that he could hear a conversation between the CI and Taylor; that he could hear children talking; and, that he could hear a conversation about the Percocet. Detective Joseph continued that once the CI returned to the pre- determined location, she gave the suspected Percocet to him, and he conducted a search of the vehicle and of the CI for contraband, finding none.

{¶5} Detective Joseph continued to testify regarding the second controlled buy on November 7, 2009. He testified that, at the end of the operation on November 6, 2009, the CI and Taylor arranged for Taylor to sell another five pills of Percocet to the CI the following day. He testified that, on November 7, 2009, the controlled buy occurred at Taylor's residence, but this time he instructed the CI to stay in her vehicle and have Taylor come outside so that he could obtain a video recording of Taylor to corroborate the audio recording. Detective Joseph explained that he searched the CI and her vehicle for contraband, fitted her with an audio recording device, gave her $25.00, and instructed her to wait down the road from Taylor's residence so as to allow enough time for Detective Boyer to set up a video camera to record the operation. He testified that he heard the CI arrive at Taylor's residence; that he heard children and adults coming and going throughout the trailer park; that he could hear Taylor get into the vehicle; that he could hear the door open and close; and, that he could hear the conversation between the CI and the defendant. After leaving the trailer park, the CI gave the suspected Percocet to the task force agents. Again he searched the CI's person and vehicle for contraband but found none. Lastly, he testified that the pills retrieved from the controlled buys on November 6 and 7, 2009 were sent to the Ohio Bureau of Criminal Identification and Investigation for testing.

{¶6} Rachel Eckert testified that she "had gotten into some trouble" and "as a way to resolve [her] problems," she worked as a CI in Seneca County for about one month. Trial Tr., p. 209. She testified that in consideration for her efforts, she was to receive community control and drug rehabilitation. The CI continued that she had known Taylor through mutual friends; that she saw Taylor at the Tiffin hospital; that she and Taylor were talking at the hospital when Taylor offered to sell her some Percocet for $5.00 each. She testified that she informed the Seneca County Drug Task Force that she would be able to buy drugs from Taylor; that she, Detective Joseph, and Detective Boyer set up the operation; that on November 6, 2009, she and her vehicle were searched for contraband; that she was issued $25.00 to purchase the Percocet; that she was outfitted with a recording device; and, that she went to Taylor's residence and made the purchase. She testified that Taylor's children were in the room with them while she purchased the Percocet, and that the children were under the age of ten. The CI testified that after she left Taylor's residence, she returned to the pre-determined location and gave the pills and the recording device to the officers.

{¶7} The recording of the buy on November 6, 2009 was played for the jury. It revealed that Taylor sold the CI five pills of Percocet for $5.00 each. Children's voices could be heard clearly on the audio recording. Also, the recording revealed that the CI and Taylor agreed to a second sale of Percocet the following day.

{¶8} The CI continued to testify regarding the buy on November 7, 2009. She explained that the same procedure as the first buy was followed except that Detective Boyer took a video recording of the operation outside of Taylor's residence. The CI testified that once Detective Boyer was set-up, she drove to Taylor's residence but this time remained in her vehicle; that Taylor came out of the residence followed by her son who began riding his bike; that Taylor entered the CI's vehicle; that Taylor sold her five pills she believed to be Percocet for $5.00 a pill; that after the sale the CI returned to the pre-determined location to meet with Detectives Joseph and Boyer; that she turned the pills over to them; that they searched her person and vehicle; and, that no contraband was found as a result of the search. The audio recording from November 7, 2009 was played for the jury.

{¶9} On redirect-examination, the CI testified to the discussion between her and Taylor regarding Taylor selling her the Percocet. The CI explained that she and Taylor had been acquainted for about two years; that, in late October or early November of 2009, she was leaving the hospital after having undergone a procedure; that as she was waiting for her ride, Taylor entered the hospital with one of her children; that the CI and Taylor began talking about the reasons they were at the hospital when Taylor said that she had Percocet to sell for $5.00 each; and, that the two exchanged phone numbers so that she could buy Percocet from Taylor.

{¶10} The video recording taken by Detective Boyer on November 7, 2009 was played for the jury. It showed the CI drive to and park outside Taylor's residence, Taylor and a child exit the residence, Taylor enter the CI's vehicle, and Taylor's child leave to ride his bike around the trailer park.

{¶11} The State moved to admit its exhibits, which the trial court admitted.

{¶12} The defense then presented Taylor on direct-examination. Taylor testified that she has known the CI for a couple of years; that they have spent time together in the past; that they lost contact when she moved; that she ran into the CI at the hospital; that, at the hospital, the CI was in a wheelchair as she had just undergone a procedure; that the CI looked exhausted and said she was taking Percocet; that she was concerned for the CI because she viewed her as a good friend; that she said she also had Percocet for a recent procedure; that she had her four-year old daughter with her; that a nurse was present for their entire interaction; that she suggested they exchange phone numbers so that they could get together; that she did not offer to sell the CI Percocet because she does not sell drugs; that it was the CI who contacted her about buying Percocet; that it was the CI who suggested to buy five Percocet for $25.00; that she just wanted someone to spend time with because she does not have any friends; that she never had it in mind to commit a criminal offense, but that she just wanted to help out a friend; and, that the CI persuaded her to sell her drugs. Taylor also testified that, on November 7, 2009, her son exited their residence with her and rode his bike to his grandmother's residence; that her daughter was already at the grandmother's residence; and, that there were no other minor children in the area on that date.

{¶13} On cross-examination, Taylor testified that on November 6, 2009, her children were in the room with her when she sold the CI the Percocet; that she asked the CI if she was interested in a muscle relaxer; that she sold the CI five pills on November 6, 2009 and five pills on November 7, 2009; and, that she received $25.00 on each day.

{¶14} The defense rested. The jury returned a verdict of guilty on count I and count II, and found that Taylor did commit the offense within the vicinity of a juvenile for count I, but not for count II. Further, the jury found that Taylor did not prove the affirmative defense of unlawful entrapment for either count. The trial court accepted the verdicts and subsequently sentenced Taylor to three years' imprisonment for count I and twelve months' imprisonment for count II, to be served concurrently. The trial court also ordered restitution to be paid to the Seneca County Drug Task Force METRICH Enforcement Unit. It is from the conviction and the sentence that Appellant brings her appeal, assigning the following errors for our review.

Assignment of Error No. I

THE JURY VERDICT OF GUILTY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AS WAS THE JURY FINDING OF NO ENTRAPMENT

Assignment of Error No. II

THE APPELLANT WAS DENIED HER RIGHT TO A FAIR TRIAL BY THE INEFFECTIVE ASSISTANCE OF COUNSEL EVIDENCED BY COUNSEL'S OPENING REMARKS

Assignment of Error No. III

THE TRIAL COURT ERRED IN SENTENCING APPELLANT FOR BOTH COUNTS IN THE INDICTMENT AS THE COUNTS WERE ALLIED OFFENSES OF SIMILAR IMPORT UNDER ORC 2941.25(A)

Assignment of Error No. IV

THE TRIAL COURT ERRED IN ITS SENTENCING ENTRY OF NOVEMBER 23, 2010 AND ITS NUNC PRO TUNC ENTRY OF NOVEMBER 24, 2010 BY CITING THE WRONG OHIO REVISED CODE SECTION

Assignment of Error No. I

{¶15} In her first assignment of error, Taylor alleges that the jury verdict was against the manifest weight of the evidence due to the conflicting testimony regarding the initiation of the contact between the CI and Taylor. Taylor also alleges that the jury's finding that there was no entrapment was against the manifest weight of the evidence as the evidence established that the CI had initiated and arranged for the purchases herself.

{¶16} The State contends that the verdict was not against the manifest weight of the evidence in light of the overwhelming evidence favoring Appellant's guilt. We agree.

{¶17} When an appellate court analyzes a conviction under the manifest weight standard it must review the entire record, weigh all of the evidence and all of the reasonable inferences, consider the credibility of the witnesses, and determine whether, in resolving conflicts in the evidence, the fact finder clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541, 1997-Ohio-52, superseded by constitutional amendment on other ...


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