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State of Ohio v. Rodney D. Zeune

October 6, 2011

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
RODNEY D. ZEUNE,
DEFENDANT-APPELLANT.



APPEAL from the Franklin County Court of Common Pleas (C.P.C. No. 09CR08-4919)

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

Cite as State v. Zeune,

DECISION

(REGULAR CALENDAR)

{¶1} Defendant-appellant, Rodney D. Zeune, appeals from a judgment of conviction and sentence entered by the Franklin County Court of Common Pleas. For the following reasons, we affirm in part and reverse in part that judgment and remand the matter for resentencing.

{¶2} On August 18, 2009, a Franklin County Grand Jury indicted appellant with a single count of trafficking in cocaine in violation of R.C. 2925.03. Appellant entered a not guilty plea and proceeded to a jury trial. On the morning of trial, the state elected to proceed against appellant for complicity in trafficking. Although appellant's trial counsel objected, he did not accept the trial court's offer of a continuance because, as counsel candidly conceded, "I can't stand here and say that our preparation for the defense did not also include the possibility [of complicity]." (Tr. 7.)

{¶3} At trial, Ayman Musleh testified that he and appellant had been friends for years. He and appellant often used cocaine together and Musleh sometimes bought cocaine from appellant. In 2009, Musleh became a confidential informant for the Mt. Vernon Police Department after he was arrested on a drug possession charge. Musleh agreed to do a "controlled buy" of cocaine from defendant who was a "person of interest" in a Drug Enforcement Agency ("DEA") task-force investigation. Sometime thereafter, Musleh arranged to buy an ounce of cocaine from appellant. On March 5, 2009, after appellant changed the meeting location several times, Musleh and appellant met at a Staples office supply store and then immediately drove in Musleh's car to an apartment complex near the Columbus airport. Authorities had wired Musleh's car with a listening device so they could hear what transpired. On the way to the apartment complex, appellant called Rayshon Alexander to tell him they were on their way. Shortly after arriving at the apartment complex, Alexander approached the vehicle. Musleh gave appellant the money to buy the cocaine and then appellant gave that money to Alexander. Alexander gave the cocaine to appellant, who handed it to Musleh. Musleh and appellant then drove away.

{¶4} The jury found appellant guilty of complicity in trafficking and the trial court sentenced him accordingly.

{¶5} Appellant appeals and assigns the following errors:

[1]. RODNEY ZEUNE WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

[2]. THE TRIAL COURT ERRED WHEN IT FAILED TO SUA SPONTE ORDER A MISTRIAL.

[3]. THE TRIAL COURT DENIED MR. ZEUNE DUE PROCESS WHEN IT IMPOSED A SENTENCE PUNISHING HIM FOR EXERCISING HIS RIGHT TO A JURY TRIAL.

[4]. THE TRIAL COURT ERRED WHEN IT IMPOSED AN UNLAWFUL SENTENCE.

[5]. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT WHEN IT FAILED TO PROPERLY INSTRUCT THE JURY AS TO THE AFFIRMATIVE DEFENSE OF ENTRAPMENT THEREBY DEPRIVING THE DEFENDANT OF A FAIR TRIAL AS REQUIRED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE SECTION TEN OF THE OHIO CONSTITUTION.

{¶6} For ease of analysis, we will address appellant's assignments of error out of order.

Appellant's Second Assignment of Error─Sua Sponte Mistrial

{¶7} Appellant argues in this assignment of error that the trial court erred by failing to sua sponte declare a mistrial. We disagree.

{¶8} A mistrial should not be ordered in a criminal case merely because an error or irregularity has occurred. Rather, a mistrial is appropriate only when the substantial rights of the accused are adversely affected such that a fair trial is no longer possible. State v. Reynolds (1988), 49 Ohio App.3d 27. A trial court may grant a mistrial sua sponte when there is manifest necessity for the mistrial or when the ends of public justice would otherwise be defeated. State v. Johnson, 10th Dist. No. 08AP-652, 2009-Ohio- 3383, ¶30 (citing Cleveland v. Walters (1994), 98 Ohio App.3d 165, ...


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