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State v. Bays

Court of Appeals of Ohio, Fifth District

September 23, 2013

STATE OF OHIO Plaintiff-Appellee
v.
LARRY E. BAYS Defendant-Appellant

Appeal from the Ashland County Court of Common Pleas, Case No. 12-CRI-114

For Defendant-Appellant ERIN N. POPLAR, Erin Poplar Law, LLC.

For Plaintiff-Appellee RAMONA J. ROGERS, ASHLAND COUNTY PROSECUTOR, ANDREW N. BUSH Assistant Prosecuting Attorney.

JUDGES: Hon. William B. Hoffman, P.J., Hon. Sheila G. Farmer, J., Hon. Craig R. Baldwin, J.

OPINION

Hoffman, P.J.

(¶1} Defendant-appellant Larry E. Bays appeals his conviction and sentence entered by the Ashland County Court of Common Pleas, on five counts of aggravated trafficking in drugs, three counts of aggravated possession of drugs, one count of possessing criminal tools, and one count of tampering with evidence, following a jury trial. Plaintiff-appellee is the state of Ohio.

PROCEDURAL HISTORY AND FACTS

(¶2} On September 21, 2012, Appellee filed a Complaint against Appellant. The trial court conducted a bond hearing on September 24, 2012, and found Appellant to be indigent. On September 28, 2012, the Ashland County Grand Jury indicted Appellant on five counts of aggravated trafficking in drugs, in violation of R.C. 2925.03(A)(1), felonies of the fourth degree; three counts of aggravated possession of drugs, in violation of R.C. 2925.11(A), felonies of the fifth degree; three counts of possessing criminal tools, in violation of R.C. 2923.24(A), felonies of the fifth degree; and one count of tampering with evidence, in violation of R.C. 2921.12(A)(1), a felony of the third degree.

(¶3} Appellant entered a plea of not guilty to the indictment at his arraignment on October 3, 2012. Appellant, through counsel, filed a Motion for Appropriation of Funds for Consulting Defense Experts, and a Motion to Dismiss, asserting the statute under which he was indicted was unconstitutionally vague. After Appellee filed memoranda in opposition to both motions, the trial court denied Appellant's motion via Judgment Entry filed November 7, 2012.

(¶4} The matter proceeded to jury trial on December 11, 2012. The following evidence was adduced at trial.

(¶5} On January 16, 2012, the Ashland Police Department conducted a controlled buy at the Loudonville Tobacco Shop which is owned and operated by Appellant and his wife. The police informant purchased a substance identified as AM-2201, an alleged synthetic marijuana. During the transaction, Appellant compared the substance to "pot". The following day, police executed a search warrant at Loudonville Tobacco Shop and the attached residence, and seized various boxes of synthetic drugs, a cash register and a safe containing money. During an interview with police, Appellant admitted he did not charge tax on the synthetic drugs, he did not display such on the shelves of his store, and he knew people were smoking the substances. Police sent the drugs to BCI for testing.

(¶6} On May 14, 2012, the Ashland Police Department attempted to make another controlled buy from Appellant at the Loudonville Tobacco Shop. Appellant refused to sell the synthetic drugs at that time. After the attempted purchase, Appellant spoke with the informant, advising her he knew she was with the police and "we got our asses busted and we don't do that anymore". The conversation was recorded. Later that same day, using another informant, police made a controlled purchase of AM-2201. A controlled buy was also made on May 21, 2012. The drugs from both buys were sent to BCI for testing.

(¶7} Police executed a search warrant at Loudonville Tobacco Shop and Appellant's residence on May 29, 2012, seizing additional amounts of AM-2201. The drugs were found hidden behind the insulation of an unfinished wall. Video taken from Appellant's surveillance system revealed images of Appellant leaving the shop, walking through his residence, out the back door, then hiding the synthetic drugs as the police arrived.

(ΒΆ8} Subsequently, the police conducted two additional controlled buys on September 7, and 13, 2012. A third search warrant was executed on September 21, 2012, during ...


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