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State v. Jewett

Court of Appeals of Ohio, Fourth District, Scioto

April 24, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
TYRONNE J. JEWETT, Defendant-Appellant.

          Steven H. Eckstein, Washington Court House, Ohio, for appellant.

          Mark E. Kuhn, Scioto County Prosecuting Attorney, and Jay Willis, Scioto County Assistant Prosecuting Attorney, Portsmouth, Ohio, for appellee.

          DECISION AND JUDGMENT ENTRY

          WILLIAM H. HARSHA, JUDGE.

         {¶1} A jury convicted Tyronne Jewett of 33 criminal offenses, including 22 counts of trafficking in heroin or cocaine. The court sentenced him to an aggregate 40-year prison term, with 16 years of mandatory prison time.

         {¶2} First, Jewett asserts that the trial court erred by not granting his motion to amend the cocaine trafficking charges that were greater than felonies of the fifth degree. The jury convicted Jewett of four cocaine trafficking charges with penalties enhanced beyond a fifth-degree felony based on the weight of the cocaine. Jewett claims that the state failed to introduce evidence that the weight of the cocaine for these offenses was pure cocaine. The Supreme Court of Ohio recently reconsidered and vacated an earlier decision that the state must prove the weight of the actual cocaine, not the total weight of cocaine plus any filler, in prosecutions for possession of cocaine where the defendant is charged with a penalty enhancement. The applicable offense level for cocaine trafficking and possession is consequently determined by the total weight of the drug involved, including any fillers that are part of the usable drug. The trial court thus did not abuse its discretion by denying Jewett's motion to amend the cocaine trafficking charges.

         {¶3} Next, Jewett contends that there was insufficient evidence to support 14 of his convictions on heroin and cocaine trafficking counts because they were based upon the exclusive testimony of lay witnesses and not upon expert testimony. We reject Jewett's contentions for several reasons. First, he cites no authority supporting his proposition. Second, Jewett's motion for acquittal was not premised on this argument. For the most part, he did not object to the lay witnesses' testimony concerning the identity and weight of the drugs involved in the trafficking charges and thus forfeited all but plain error. Third, he does not claim plain error and does not specify an assignment of error relating to the trial court's admission of this evidence. Fourth, upon presentation of a foundation for their experience and knowledge, lay witness drug users can establish their competence to express an opinion on the identity of a controlled substance. Fifth, in offenses where the state has not recovered and tested the drug, the offender may be convicted of the offense and the penalty enhancement based on the testimony of lay witnesses, even in the absence of expert testimony, as long as a proper foundation exists for their opinion on the weight of the drugs.

         {¶4} Jewett also claims that his convictions for these same 14 trafficking convictions were against the manifest weight of the evidence because the jury could not rely on the testimony of drug addicts and co-defendants whose testimony was obtained through plea deals. We find this claim is meritless because the weight and credibility of evidence was to be determined by the jury. Here the jury did not clearly lose its way or create a manifest miscarriage of justice so as to warrant reversal.

         {¶5} Next Jewett argues that his trial counsel provided ineffective assistance of counsel because: (1) he failed to move to dismiss the charges because of a statutory speedy-trial violation; and (2) he failed to ask necessary questions of a witness with whom he had a conflict of interest. We reject Jewett's first claim because there was no statutory speedy-trial violation. The triple-count provision did not apply because he was not held in jail solely on the charges in this case, but also on charges from Gallia County. And the standard 270-day time period did not expire before his trial. We reject Jewett's second claim because when the court learned of a possibility of conflict, it conducted a hearing where the parties orally waived any conflict. Moreover, there is no evidence that an actual conflict of interest adversely affected his lawyer's performance. Jewett's counsel previously represented one of the state's witnesses, but he cross-examined that witness about whether she was convicted of misdemeanor theft. Although he remarked to the trial court that he wanted to "skate kind of * * * soft on this, " he ultimately did get the witness to concede that she had been convicted of a misdemeanor theft within the last ten years. Because the extent and scope of cross-examination fall within the ambit of trial strategy, debatable trial tactics do not establish ineffective assistance of counsel.

         {¶6} Finally, Jewett asserts that the trial court erred and denied him a fair trial when it gave curative and final instructions that incorrectly stated Ohio law. For the reasons previously discussed in resolving Jewett's first claim, the trial court's curative instruction correctly stated that the state did not need to establish the purity of the controlled substance for the trafficking charges with elevated penalties. Jewett did not object to the curative and final instructions that the state could use lay witnesses to prove the identity and weight of drugs if a foundation for the testimony was first established, so he forfeited all but plain error. And the trial court did not commit error, much less plain error, by instructing the jury of the propriety of lay witness testimony concerning the identity and weight of drugs for the charged offenses.

         {¶7} Having overruled Jewett's assignments of error, we affirm his convictions.

         I. FACTS

         {¶8} The Scioto County Grand Jury returned a 46-count indictment against Tyronne Jewett and 23 other defendants. The indictment charged Jewett with 41 counts and various specifications. All of the defendants, including Jewett, were charged with engaging in a pattern of corrupt activities, conspiracy to engage in corrupt activities, and conspiracy to traffic in drugs (heroin and cocaine). The indictment also charged Jewett with multiple trafficking in heroin and cocaine offenses. After the trial court appointed counsel for Jewett, he entered a plea of not guilty to the charges.

         {¶9} The remaining facts are based upon the evidence produced at a jury trial. The Southern Ohio Drug Task Force received information that Jewett (also known as "Blue" or "Ty"), who came from Dayton, was dealing heroin and cocaine in the Portsmouth area from 2014 until early 2015. Jewett purchased heroin and cocaine from Taevon Turnage in Dayton through Steven North, who acted as a middleman. Jewett sold the heroin and cocaine from several different residences in Scioto County. He then had the proceeds of the drug sales delivered or wired to Dayton in return for more drugs. Jewett instructed several individuals to wire the money to North. And several people drove Jewett or others on his behalf to obtain the drugs from Dayton.

         {¶10} In January 2015 the police arranged six different controlled purchases of heroin and cocaine from Jewett by a confidential informant. The drugs seized from those transactions went to the Bureau of Criminal Investigation ("BCI") where the lab found varying amounts of heroin and cocaine. BCI forensic scientist Megan Koentop testified that the laboratory did not quantitate submitted substances, i.e., BCI did not determine what percentage of the substance tested is actually heroin or cocaine-it did not test for the purity of the drug.

         {¶11} Many of Jewett's co-defendants, who were almost all drug addicts, testified that they purchased heroin and cocaine from him, drove to Dayton to get the drugs for him and to give money to North, and permitted Jewett to use their houses in Scioto County to deal drugs. They provided testimony, mostly without objection, about the types and amounts of drugs purchased from Jewett and transported by or on behalf of him.

         {¶12} After the task force had evidence of the six controlled purchases of heroin and cocaine, the police stopped an SUV driven by Jewett's accomplice, Christopher Wolfe, based on Wolfe's driving while under suspension. Jewett was in the front passenger seat. They discovered that Jewett had an arrest warrant on an unrelated Gallia County indictment and found a loaded semiautomatic handgun underneath Jewett's seat, multiple cellphones in his possession, including the one on which he made the drug transactions, digital scales and hypodermic needles in his coat, and $1, 563 on his person. They arrested him and took him to jail.

         {¶13} Portsmouth Police Detective Lee Bower testified that based on his experience, he was able to look at various quantities of drugs and estimate how much they weighed. Jewett did not object to the trial court qualifying him as an expert on giving estimates of weights of drugs based on appearance. By contrast BCI forensic scientist Koentep testified that the BCI weighs the submitted substances because they cannot be sure of the weight if they just looked at it.

         {¶14} The jury returned verdicts finding Jewett guilty of 33 of the charged criminal offenses, including the charges of engaging in a pattern of corrupt activities, conspiracy to engage in corrupt activities, and conspiracy to traffic in drugs, as well as 22 counts of trafficking in heroin or cocaine, and various specifications. The jury found him not guilty of the remaining counts. The trial court sentenced Jewett to an aggregate prison term of 40 years, with 16 years being mandatory.

         II. ASSIGNMENTS OF ERROR

         {¶15} Jewett assigns the following errors for our review:

I.THE TRIAL COURT ERRED IN NOT GRANTING DEFENDANT-APPELLANTS MOTION TO AMEND THE INDICTMENT MADE AT THE CLOSE OF THE STATE'S CASE.
II.THE TRIAL COURT ERRED IN NOT GRANTING DEFENDANT-APPELLANTS MOTION FOR ACQUITAL [SIC]
III. DEFENDANT-APPELLANTS CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
IV. TRIAL COUNSEL PROVIDED CONSTITUTIONALLY INEFFECTIVE ASSISTANCE IN VIOLATION OF DEFENDANT-APPELLANTS RIGHTS UNDER THE SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION.
V.THE TRIAL COURT ERRED AND DENIED DEFENDANT-APPELLANT A FAIR TRIAL AND DUE PROCESS OF LAW WHEN IT GAVE CURATIVE INSTRUCTIONS THAT INCORRECTLY STATED OHIO LAW AND WERE SIMPLIFIED FROM THOSE GIVEN IN ITS FINAL CHARGE TO THE JURY AND FINAL JURY INSTRUCTIONS THAT WERE INCORRECT STATEMENTS OF OHIO LAW.

         III. LAW AND ANALYSIS

         A. Motion to Amend the Indictment

         {¶16} In his first assignment of error Jewett asserts that the trial court erred by not granting his motion to amend the indictment. Crim.R. 7(D) permits the trial court to correct errors in the indictment before, during, or after the trial as long as it does not change the name or identity of the crime charged. We review the trial court's ruling on the motion to amend the indictment under the abuse-of-discretion standard. See State v. Bennett, 5th Dist. Delaware No. 05CA11069, 2006-Ohio-5530, ¶ 95 ("If the amendment does not change the name or identity of the crime charged, an abuse of discretion standard is applied to review the trial court's decision"); State v. Gibson, 8th Dist. Cuyahoga No. 103958, 2016-Ohio-7778, ¶ 28 ("We review motions to amend indictments for an abuse of discretion"). " 'A trial court abuses its discretion when it makes a decision that is unreasonable, unconscionable, or arbitrary.' " State v. Keenan, 143 Ohio St.3d 397, 2015-Ohio-2484, 38 N.E.3d 870, ¶ 7, quoting State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34.

         {¶17} At the close of the state's case Jewett's trial counsel moved for a judgment of acquittal, which he subsequently modified to a motion to amend the indictment for the cocaine trafficking counts that were enhanced beyond fifth-degree felonies based on the weight of the cocaine involved. The requested amendment would not have changed the name or identity of the trafficking in cocaine offenses charged. Ultimately, the jury convicted him of four of these trafficking in cocaine charges-Counts 4, 13, 15, and 30-with three of them being first-degree felonies and one of them being a fourth-degree felony.

         {¶18} The state failed to present evidence that the weight of the cocaine for these offenses was based on pure cocaine instead of cocaine plus a filler. BCI forensic scientist Koentop testified that the laboratory does not quantitate controlled substances it tests, ...


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