Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Scott

Court of Appeals of Ohio, Twelfth District

July 1, 2013

STATE OF OHIO, Plaintiff-Appellee,
v.
JAMES SCOTT, JR., Defendant-Appellant.

CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 05CR22106

David P. Fornshell, Warren County Prosecuting Attorney, Michael Greer, for plaintiff-appellee

Brent E. Rambo, for defendant-appellant

RINGLAND, J.

{¶ 1} Defendant-appellant, James Scott, Jr., appeals his convictions and sentence in the Warren County Common Pleas Court for various offenses of trafficking in and possession of crack cocaine and cocaine.[1] For the reasons set forth below, we affirm the convictions and sentence.

{¶ 2} On February 25, 2005, appellant was indicted on nine counts of trafficking and possession of cocaine and crack cocaine including (1) five counts of trafficking in crack cocaine in violation of R.C. 2925.03(A)(1), all felonies of the first degree, (2) one count of trafficking in crack cocaine in violation of R.C. 2925.03(A)(1), a felony of the second degree, (3) one count of possession of crack cocaine in violation of R.C. 2925.11(A), a felony of the first degree, (4) one count of possession of cocaine in violation of R.C. 2925.11(A), a felony of the first degree, and (5) one count of trafficking in cocaine in violation of R.C. 2925.03(A)(1), a felony of the first degree. Four of the counts carried major drug offender specifications pursuant to R.C. 2941.1410(A).[2]

{¶ 3} A two-day jury trial was held on October 27-28, 2005. At trial, the state called Detective Dan Schweitzer of the Warren County Drug Task Force as its first witness. Schweitzer testified that he became aware of appellant through confidential informants who stated that appellant was "a large scale cocaine, crack cocaine drug dealer in Warren County."

{¶ 4} Schweitzer further testified regarding several drug transactions made between appellant and a confidential informant. During each transaction, the confidential informant wore a wireless transmitter that allowed Schweitzer to monitor the transaction. In each transaction, the drugs were exchanged for "prerecorded money" that was provided by the Warren County Drug Task Force.[3] Each transaction between appellant and the confidential informant took place at either appellant's residence, located at "280 West Pekin Road, Lebanon, Ohio" (the "Pekin Road Residence"), or at an "abandoned residence" located on "Robinson Vail Road" (the "Robinson Vail Residence"). After several drug transactions occurred between appellant and the confidential informant, Schweitzer began participating in the transactions acting in an undercover capacity. Schweitzer then testified about five separate drug transactions involving appellant.

{¶ 5} The first transaction occurred on November 16, 2004 at the Robinson Vail Residence wherein Schweitzer purchased a "half ounce" of crack cocaine from appellant for $400. Brooke J. Dunn, a forensic chemist with the Miami Valley Regional Crime Laboratory, would later testify that the substance purchased by Schweitzer was 13.43 grams of crack cocaine.

{¶ 6} The second transaction occurred on November 29, 2004 at the Robinson Vail Residence wherein Schweitzer purchased "an ounce of crack cocaine" from appellant for $780. Dunn later testified that the substance purchased by Schweitzer was 26.89 grams of crack cocaine.

{¶ 7} The third transaction occurred on December 8, 2004 at the Pekin Road Residence wherein the confidential informant purchased "2 ounces of crack cocaine" from appellant's wife. Schweitzer explained that appellant was "out of state, in Florida, at a funeral of his family member." Therefore, appellant arranged for his wife to supply Schweitzer with the crack cocaine and Schweitzer arranged for the confidential informant to retrieve the drugs. Dunn later testified that the substance purchased by the confidential informant was 26.73 grams of crack cocaine.

{¶ 8} The fourth transaction occurred on December 21, 2004 at the Robinson Vail Residence wherein Schweitzer purchased "one ounce of crack cocaine" for $765 from appellant. Dunn later testified that the substance purchased by Schweitzer was 26.73 grams of crack cocaine.

{¶ 9} The fifth transaction occurred on December 27, 2004 off of Manchester Road near the Robinson Vail Residence in Schweitzer's vehicle. Schweitzer testified that he purchased five ounces of crack cocaine from appellant for $3, 600. Dunn later testified that the substance purchased by Schweitzer was 134.82 grams of crack cocaine.

{¶ 10} After the fifth transaction, police followed appellant back to his Pekin Road Residence where he was placed under arrest and his house was searched. During the search several items were seized including two handguns, a safe containing paperwork belonging to appellant and $46, 003 in cash, surveillance equipment, cutting agents for cocaine, "miscellaneous drug paraphernalia, " and both crack cocaine and cocaine.[4] Dunn later testified that the multiple packages of substances confiscated from appellant's Pekin Road Residence contained 1, 110.37 grams of cocaine and 445.20 grams of crack cocaine.

{¶ 11} After the case was submitted to the jury for deliberation, but prior to the returning of a verdict, appellant absconded.[5] Nevertheless, on October 28, 2005, the jury returned a verdict of guilty against appellant on all nine counts. Seven years later, appellant was apprehended during a traffic stop in Dayton, Ohio and returned to Warren County for sentencing. On May 30, 2012, appellant was sentenced to a total of 18 years in prison.

{¶ 12} From his convictions and sentence, appellant appeals, raising three assignments of error.

{¶ 13} Assignment of Error No. 1:

{¶ 14} APPELLANT'S TRIAL COUNSEL WAS INEFFECTIVE AND APPELLANT WAS PREJUDICED THEREBY.

{¶ 15} In his first assignment of error, appellant asserts that his 2005 trial counsel was ineffective for numerous reasons. Specifically, appellant contends that his trial counsel was ineffective for failing to object to (1) "full areas of hearsay testimony, " (2) the admission and discussion of unauthenticated photographs, and (3) prejudicial speculation by detectives.

{¶ 16} "To establish a claim of ineffective assistance of counsel, a defendant must show that his or her counsel's actions were outside the wide range of professionally competent assistance, and that prejudice resulted by reason of counsel's actions." State v. Dominguez, 12th Dist. No. CA2011-09-010, 2012-Ohio-4542, ¶ 19, citing State v. Ullman, 12th Dist. No. CA2002-10-110, 2003-Ohio-4003, ¶ 43; Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984). Trial counsel's performance will not be deemed ineffective unless appellant demonstrates that "counsel's representation fell below an objective standard of reasonableness and that there exists a reasonable probability that, were it not for counsel's errors, the result of the proceeding would have been different. Id.; Strickland at 688; State v. Bradley, 42 Ohio St.3d 136, 143 (1989). "A reasonable probability is 'a probability sufficient to undermine confidence in the outcome of the proceeding.'" State v. Fields, 102 Ohio App.3d 284 (12th Dist.1995), quoting Strickland at 694. "A defendant bears the burden of demonstrating ineffective assistance of counsel." Dominquez at ¶ 19, citing State v. Bishop, 12th Dist. No. CA97-07-081, 1998 WL 102994, * 1 (Mar. 9, 1998); State v. Hamblin, 37 Ohio St.3d 153, 155-156 (1988)

Hearsay Testimony

{¶ 17} Appellant first contends trial counsel was ineffective in failing to object to several hearsay statements made during the course of Schweitzer's testimony. Specifically, appellant argues trial counsel was ineffective for failing to object to hearsay statements regarding (1) the initiation of the investigation into appellant, (2) the confidential informant, and (3) a bill of lading found in appellant's Pekin Road Residence.

1. Initiation of Investigation

{¶ 18} Appellant claims trial counsel was ineffective for failing to object to Schweitzer's testimony that the Warren County Drug Trask Force began investigating appellant after an unidentified individual contacted the police claiming that appellant was a large-scale crack cocaine dealer. Specifically, appellant takes issue with the following exchange:

STATE: And how did [appellant] first come on the radar with the Warren County Drug Task Force?
SCHWEITZER: I met with Detective Back, who had met with a source of information. This source of information provided a lot of details in reference to [appellant, ] including where he lives, vehicles that he drove, motorcycles that he had, and that he had not worked in some time, and that he was a large scale cocaine, crack cocaine drug dealer in Warren County.

{¶ 19} According to Evid.R. 801(C), hearsay "is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." See State v. Penwell, 12th Dist. No. CA2010-08-019, 2011-Ohio-2100, ¶ 11. The hearsay rule provides that an out-of-court statement is inadmissible at trial unless it falls under one of the exceptions to the rule. Id.; Evid.R. 801-804.

{¶ 20} However, out-of-court statements may be admissible as non-hearsay if they are used to explain a witness's actions. Penwell at ¶ 13. "As the Ohio Supreme Court has stated, 'it is well established that extrajudicial statements made by an out-of-court declarant are properly admissible to explain the actions of a witness to whom the statement was directed.'" Id., quoting State v. Thomas, 61 Ohio St.2d 223, 232 (1980). "'For example, where statements are offered to explain an officer's conduct while investigating a crime, such statements are not hearsay.'" Id., quoting State v. Blevins, 36 Ohio App.3d 147, 149 (10th Dist.1987).

{¶ 21} In his testimony, Schweitzer did not relay any out-of-court statements to the jury but, rather, discussed why the Warren County Drug Task Force had begun an investigation of appellant. The statements of the "source of information" were not used by Schweitzer to prove the truth of the matter asserted-that appellant was a large scale drug dealer-but to explain why an investigation was initiated. Therefore, the testimony is not inadmissible hearsay and trial counsel was not ineffective for failing to object to the testimony.

2. Confidential Informant

{¶ 22} Appellant next argues trial counsel was ineffective in failing to object to "full areas of hearsay testimony" by Schweitzer regarding drug transactions that occurred between appellant and the confidential informant on October 26, 2004, November 8, 2004, and December 8, 2004. Specifically, appellant takes issue with testimony from Schweitzer that the confidential informant "purchased" crack cocaine from "Mr. Scott." Appellant claims that the only way Schweitzer could have known that the confidential informant actually purchased drugs from appellant was if the confidential informant told this to Schweitzer. As the statements of the confidential informant would be inadmissible hearsay, appellant contends that trial counsel should have objected.

{¶ 23} In this case, trial counsel did, in fact, object and request a "continuing objection" as to all testimony regarding the confidential informant. When Schweitzer first began to discuss the confidential informant, trial counsel objected stating, "The confidential informant is not going to appear. We would object to any hearsay as to what Detective Schweitzer has to say." This objection was overruled by the trial court. After further testimony by Schweitzer, the following exchange took place:

TRIAL COUNSEL: Your honor, we ask for a continuing objection on the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.