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State v. Parker

Court of Appeals of Ohio, Eighth District

July 18, 2013

STATE OF OHIO PLAINTIFF-APPELLEE
v.
MAURICE D. PARKER DEFENDANT-APPELLANT

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-560645

ATTORNEY FOR APPELLANT Russell S. Bensing

ATTORNEYS FOR APPELLEE: Timothy J. McGinty Cuyahoga County Prosecutor, Melissa Riley Assistant Prosecuting Attorney The Justice Center.

BEFORE: E.T. Gallagher, J., Rocco, P.J., and Blackmon, J.

JOURNAL ENTRY AND OPINION

EILEEN T. GALLAGHER, J.

{¶1} Defendant-appellant Maurice Parker ("Parker") appeals the trial court's judgment convicting him of two counts of drug trafficking, and one count of drug possession. We find some merit to the appeal and affirm in part. We reverse in part for the limited purpose of resentencing allied offenses.

{¶ 2} Parker was charged with one count of drug possession in violation of R.C. 2925.11(A), one count of trafficking in violation of R.C. 2925.03(A)(1) (sell or offer to sell) and one count of trafficking in violation of R.C. 2925.03(A)(2) (prepare for shipment). He was charged after allegedly selling drugs to a confidential reliable informant ("CRI") during a controlled buy-bust.

{¶ 3} Plaintiff-appellee, state of Ohio ("the state") called several witnesses at trial. Detective Michael Duller ("Det. Duller"), who participated in the buy-bust, testified that he parked his unmarked car approximately 70 feet from the car occupied by Detective Maria Matos ("Det. Matos") and the CRI in the parking lot at Steelyard Commons. Det. Duller observed Parker arriving on the scene in a gray car. Parker and his codefendant Malcolm Burgess ("Burgess"), parked next to Det. Matos's vehicle. Parker exited the gray car and got into Det. Matos's vehicle where the CRI gave him previously recorded "buy" money in exchange for heroin. When the exchange was complete, Parker returned to the gray car and drove off. Det. Duller, who heard the conversation between Parker, the CRI, and Det. Matos through a body wire transmitter, alerted the takedown officers that the transaction was complete. Within one minute of the transaction, several police officers moved in and arrested Parker.

{¶ 4} Det. Robert Klomfas ("Det. Klomfas"), who was part of the takedown team who arrested Parker, testified that he removed Parker from the front passenger seat and found one cell phone and $15 in Parker's left hoodie pocket. Another detective found two cell phones in Parker's pants. The buy money and the cell phone used to arrange the sale were located on the center console between Parker and the driver, Burgess. Det. Klomfas, Det. Duller, and Det. Matos each testified that Parker was wearing a blue hoodie at the time of both the transaction and his arrest. A forensic drug chemist with the Cuyahoga County Regional Forensic Science Laboratory later determined that the brown rock the CRI purchased from Parker contained 0.46 grams of heroin.

{¶ 5} Parker asserted that this was a case of misidentification. Burgess, who testified for the defense, stated that he sold the drugs to the CRI, not Parker. Burgess explained that he was taking Parker to Home Depot when he stopped to sell the heroin. Burgess claimed the police erroneously identified Parker as the drug dealer. However, he admitted that Parker was wearing a blue hoodie at the time of his arrest.

{¶ 6} At the conclusion of the state's case, the trial court found that the state failed to present sufficient evidence to sustain a conviction for possession of criminal tools, and the court dismissed that count of the indictment. At the end of trial, the jury found Parker guilty of one count of drug trafficking in violation of R.C. 2925.03(A)(1), one count of drug trafficking in violation of R.C. 2925.03(A)(2), and one count of drug possession in violation of R.C. 2925.11(A). Parker now appeals and raises three assignments of error.

Evidence of Cell Phones

{¶ 7} In the first assignment of error, Parker argues the trial court erred in allowing Det. Klomfas to testify that the seizure of three cell phones on Parker's person is indicative of drug dealing. He contends this evidence was unfairly prejudicial and inadmissible pursuant to Evid.R. 404.

{¶ 8} We find the error, if any, was invited error since the defense opened the door and brought in the testimony now being challenged. Under the invited error doctrine, a party is not entitled to take advantage of an error that he himself invited or induced. Stat ...


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