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State v. Howard

Court of Appeals of Ohio, Ninth District

July 17, 2013

STATE OF OHIO Appellee
v.
GERALD HOWARD Appellant

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 10 11 3277 (B)

J. DEAN CARRO, Appellate Review Office, School of Law, The University of Akron, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.

DECISION AND JOURNAL ENTRY

BELFANCE, Judge.

{¶1} Defendant-Appellant Gerald Howard appeals from his conviction in the Summit County Court of Common Pleas. For the reasons set forth below, we affirm.

I.

{¶2} In November 2010, police were conducting a narcotics investigation into suspected drug trafficking between Cleveland and Akron using a confidential informant. Police listened to phone calls between two individuals, one of whom was determined to be Mr. Howard, during which Mr. Howard offered to sell 200 grams of heroin. Mr. Howard told the other individual to go to a T.G.I. Friday's. Based upon this information and prior investigation, police arrived at the T.G.I. Friday's and began surveillance, looking for a Volkswagen van registered to Mr. Howard that police believed would be used in the transaction. The van arrived; however, the sole occupant in the vehicle was a woman, Harriet Caynon. Ms. Caynon parked the van but did not exit the vehicle. She made a call, and immediately after she hung up, Mr. Howard placed a call stating, "[W]here are you at? * * * [Y]ou're inside and she's outside waiting for you." At that point, police approached the van and ultimately arrested Ms. Caynon with approximately 200 grams of heroin. A gun was found on Ms. Caynon's person. Mr. Howard was not present at the scene where Ms. Caynon was arrested.

{¶3} As a result, Mr. Howard was indicted in October 2011 for one count of trafficking in heroin in an amount equaling or exceeding 50 grams but less than 250 grams, in violation of R.C. 2925.03(A)(C)(6), a felony of the first degree. The matter proceeded to a jury trial at which the jury found Mr. Howard guilty of trafficking in heroin as specified in the indictment. Mr. Howard was sentenced to eight years in prison. Mr. Howard has appealed, raising a single assignment of error for review.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN ADMITTING A FIREARM INTO EVIDENCE THAT WAS IRRELEVANT, UNFAIRLY PREJUDICIAL, AND CONFUSED OR MISLED THE JURY IN VIOLATION OF EVID.R. 401, EVID.R. 402, AND EVID.R. 403.

{¶4} In his sole assignment of error, Mr. Howard asserts the trial court abused its discretion in admitting a firearm into evidence over Mr. Howard's objection. Notably, Mr. Howard did not object to testimony related to the firearm, nor does he challenge the admission of that testimony on appeal.

{¶5} Generally, "we review a trial court's admission of evidence for abuse of discretion." State v. Truitt, 9th Dist. Summit No. 25527, 2011-Ohio-6599, ¶ 30. Nonetheless, "[a]ny error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded." Crim.R. 52(A).

¶6} Mr. Howard asserts that the trial court abused its discretion in admitting the gun into evidence because it was irrelevant to the charge against Mr. Howard and, even assuming it was relevant, its probative value was outweighed by the danger of unfair prejudice. Specifically, Mr. Howard argues that admission of the firearm allowed to the jury to "unfairly insinuate[] that Mr. Howard provided the weapon along with the heroin[]" since the jury was provided with both the weapon and the heroin to review. Evid.R. 401 defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence ...


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