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State v. Montoya

Court of Appeals of Ohio, Twelfth District

July 29, 2013

STATE OF OHIO, Plaintiff-Appellee,
ANTONIO A. MONTOYA, Defendant-Appellant.


D. Vincent Faris, Clermont County Prosecuting Attorney, David Hoffmann, for plaintiff-appellee

Christine Tailer, for defendant-appellant



{¶ 1} Defendant-appellant, Antonio A. Montoya, appeals from a decision in the Clermont County Court of Common Pleas convicting him of two counts of trafficking in heroin, three counts of possession of heroin, and one count of engaging in a pattern of corrupt activity. For the reasons outlined below, we affirm the decision of the trial court.

{¶ 2} Appellant's convictions stem from undercover buys that occurred on three separate dates, August 9, 2011, August 12, 2011, and August 30, 2011. A confidential informant arranged for an undercover officer from the Clermont County Narcotics Unit, Marc Sorbello, to purchase heroin from a person known as Mike, whose real name is Eduardo Tapia ("co-defendant"). A buy was scheduled for August 9, 2011. At a prearranged time, Officer Sorbello arrived at an apartment and waited for appellant and co-defendant. When they arrived, co-defendant offered to sell Officer Sorbello heroin at a price of $100 per gram. When Officer Sorbello asked if the price could be lowered, co-defendant stated that they would have to "check with our bosses." After Officer Sorbello agreed to the $100 per gram price and handed co-defendant $200, co-defendant produced a clear plastic sandwich bag filled with at least 20 marble-sized balloons. Co-defendant reached into the bag, took out two balloons, and handed them to Officer Sorbello. Co-defendant then handed the bag to appellant and appellant placed it into his pocket.

{¶ 3} Officer Sorbello then inquired whether the two men had any half-gram balloons, and handed co-defendant $60. Appellant then retrieved the clear plastic sandwich bag from his pocket, looked in the bag, selected a balloon, and gave it to Officer Sorbello. When Officer Sorbello left, appellant had the bag with the remaining balloons in his pocket. During the entire transaction, Officer Sorbello only spoke to co-defendant and co-defendant spoke to appellant in Spanish.

{¶ 4} The next transaction took place on August 12, 2011 in a McDonald's parking lot after Officer Sorbello called co-defendant to arrange another buy. Officer Sobello then waited by a picnic table outside. Soon, a vehicle driven by appellant pulled into the parking lot. Officer Sorbello approached the vehicle on the passenger side to speak with co-defendant. Officer Sorbello handed co-defendant what he thought was the buy money of $200. However, Agent Sorbello actually handed co-defendant only $4. Co-defendant pulled out a clear plastic sandwich bag full of at least 20 different colored balloons from the glove compartment. When co-defendant realized that Officer Sorbello only gave him approximately $4, co-defendant pulled a 9 mm pistol out of the glove compartment and stated "don't f * * * with me." Eventually, the transaction was completed when Officer Sorbello handed co-defendant $200. Co-defendant then reached into the bag, pulled out two balloons, and handed them to Officer Sorbello.

{¶ 5} The last transaction took place on August 30, 2011, and involved a different undercover officer. Shawn Michael Zint, a Union Township Police Officer assigned to the Clermont County Narcotics Unit, was contacted by co-defendant asking if he wanted to "do business." Eventually, a buy was arranged to be conducted at Wendy's by the Eastgate Mall. However, after arriving at Wendy's, the buy moved locations to the "Best Buy and Dick's up on Eastgate Boulevard." Once in the parking lot near the new location, Officer Zint approached a vehicle in which co-defendant was driving with appellant in the backseat. Officer Zint handed co-defendant $220 to purchase two grams of heroin. Co-defendant motioned to appellant in the backseat. Appellant then reached under his leg, retrieved a clear plastic bag full of over 20 balloons, and randomly selected two. Appellant handed the two balloons to Officer Zint.

{¶ 6} When appellant and co-defendant left the parking lot, officers who were conducting surveillance of the transaction followed the vehicle onto I-275. A traffic stop was then made by Union Township Police Officers in marked cruisers. While money was found in three different locations in the vehicle, including $220 in the center console, $1400 in the pocket behind the driver's seat, and $900 in a dress shoe in the trunk, no heroin balloons were ever recovered. Furthermore, the recovered identification card of co-defendant revealed that co-defendant was a minor.

{¶ 7} Brian Scowden, the chief drug analyst at the Hamilton County Coroner's Office, tested six of the seven balloons purchased by the undercover officers. Scowden tested two of the three balloons recovered by Officer Sorbello on August 9, 2011, and found both to contain heroin. One balloon weighed 0.96 grams, and the second balloon weighed 0.88 grams. Scowden tested both balloons recovered from the August 12, 2011 transaction and found both to contain heroin. The balloons weighed 1.12 grams and 1.04 grams. The balloons recovered by Officer Zint on August 30, 2011, were also tested, confirmed to contain heroin, and weighed 1.10 grams and 1.01 grams.

{¶ 8} The trial court found appellant guilty of three counts of trafficking in heroin in violation of R.C. 2925.03(A)(1), felonies of the fourth degree. Appellant was also found guilty of one firearm specification, one juvenile specification, and a forfeiture specification. Additionally, the trial court found appellant guilty of three possession charges in violation of R.C. 2925.11(A), second-degree felonies when the amount of heroin equals or exceeds 10 grams but is less than 50 grams. Finally, appellant was found guilty of engaging in a pattern of corrupt activity in violation of R.C. 2923.32(A)(1), a felony in the first degree. At sentencing, the trial court merged the August 9, 2011 and August 12, 2011 possession offenses and sentenced appellant to a total of eight years in prison.

{¶ 9} Appellant now appeals, and asserts six assignments of error ...

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