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State of Ohio v. Richard Toland

October 6, 2011

STATE OF OHIO PLAINTIFF-APPELLEE
v.
RICHARD TOLAND DEFENDANT-APPELLANT



Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-532150

The opinion of the court was delivered by: Kathleen Ann Keough, J.:

Cite as State v. Toland,

JOURNAL ENTRY AND OPINION

JUDGMENT:

CONVICTIONS AFFIRMED,

SENTENCE REVERSED AND REMANDED

BEFORE: Keough, J., Boyle P.J., and Jones, J.

{¶1} Defendant-appellant, Richard Toland ("Toland"), appeals his convictions for drug possession, drug trafficking, having weapons while under disability, and possessing criminal tools. For the reasons that follow, we affirm his convictions, but reverse his sentence and remand for resentencing.

{¶2} In 2010, Toland was charged with two counts of drug possession in violation of R.C. 2925.11(A), two counts of drug trafficking in violation of R.C. 2925.03(A)(1), three counts of drug trafficking in violation of R.C. 2925.03(A)(2), one count of having weapons while under disability in violation of R.C. 2923.13(A)(3), and one count of possessing criminal tools in violation of R.C. 2923.24(A). All counts contained forfeiture specifications and one count also contained a firearm specification. Toland waived his right to a jury trial and the case was tried to the court.

{¶3} This case arises from a series of controlled buys involving Toland and a confidential informant ("CI") and a subsequent search of Toland's residence. On December 7, 2009, Detective Robert McKay arranged a controlled buy between the CI and Toland. The CI purchased four bags of heroin from Toland at a bus stop near East 55th Street and Woodland Avenue. After the buy, Toland walked to a residence on East 55th Street and entered the front door.

{¶4} On December 8, a second controlled buy from Toland took place outside his residence on East 74th Street. During this buy, Detective McKay was present and working undercover when the sale occurred. Toland exited the downstairs portion of his residence, walked to the vehicle where both Detective McKay and the CI were seated, and engaged in a hand-to-hand transaction of two packets of heroin with the CI. After the exchange, Toland went back to the downstairs portion of the residence and went inside.

{¶5} Based on these two controlled buys, Detective McKay set up surveillance of the East 55th and East 74th Street residences. Detective McKay witnessed Toland engage in suspected drug transactions primarily during the day out of the East 55th Street residence, and a few suspected transactions at night out of the East 74th Street residence. As a result of these observations and the prior controlled buys, Detective McKay obtained search warrants for both residences.

{¶6} On December 11, the search warrants were executed. Detective McKay testified that upon entering the East 74th Street residence, Toland was present and was advised of his Miranda rights. Thereafter, Detective McKay conducted a pat-down search of Toland's person. During the pat-down search, Detective McKay recovered $630 and a "large handful of sandwich baggies" from Toland's pockets.

{ΒΆ7} Toland told Detective McKay that he had just moved into the house and that his niece and her daughter had been evicted from their residence and were staying with him for awhile. During the search of the residence, Detective McKay discovered in Toland's bedroom closet a "blue wax paper bag" which, according to Detective McKay, is commonly used to store heroin. Detective McKay further testified that he saw the ...


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