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State v. Bowers

Court of Appeals of Ohio, Eleventh District, Trumbull

May 8, 2017

STATE OF OHIO, Plaintiff-Appellee,
TARIQ ABBAS BOWERS, Defendant-Appellant.

         Criminal Appeal from the Trumbull County Court of Common Pleas. Case No. 2015 CR 00112.

          Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant Prosecutor, For Plaintiff-Appellee.

          Edward F. Borkowski, Jr., For Defendant-Appellant.


          TIMOTHY P. CANNON, J.

         {¶1} Appellant, Tariq Abbas Bowers, appeals from the May 10, 2016, judgment of the Trumbull County Court of Common Pleas, convicting him of two counts of trafficking in drugs, following a jury trial. For the reasons that follow, the trial court's final judgment is affirmed.

         {¶2} This case stems from events that occurred in April 2014. After a warrant was issued for his arrest, appellant turned himself in to the Warren Police Department.

          On March 18, 2015, appellant was indicted by the Trumbull County Grand Jury on two counts of trafficking, in violation of R.C. 2925.03(A)(2): Count One, trafficking in cocaine, a felony of the first degree (R.C. 2925.03(C)(4)(f)); and Count Two, trafficking in heroin, a felony of the third degree (R.C. 2925.03(C)(6)(d)). Both counts carry forfeiture specifications under R.C. 2941.1417(A) and R.C. 2981.02(A)(2) & (3)(a).

         {¶3} At trial, it was established that Kimberlee Zarick was working as manager of the Downtown Motor Inn in Warren, Ohio, during April 2014. According to Ms. Zarick, appellant checked in to the motel on April 2, 2014, paid for at least one night, and was given a key card to Room 105. The room was paid for in cash, one or two nights at a time, for a total of 27 consecutive nights. Ms. Zarick testified that a copy of each patron's driver's license is made when he or she pays for a room, regardless of who initially registered the room. At trial, Ms. Zarick had records for Room 105 for the month of April 2014, which included a copy of appellant's license and that of his brother, Andre Bowers. Ms. Zarick testified this meant that Andre also paid for the room at some point during those 27 nights. She further testified that she only received payment from appellant, but that other motel employees received payment from Andre. Ms. Zarick stated there is no way to determine from the motel records how many times appellant paid, how many times Andre paid, or for which nights either of them paid. Ms. Zarick testified that she works at the motel five days per week; she saw appellant at the motel on approximately 13-14 days of the 27 days in April, but she never saw Andre while she was on duty.

         {¶4} On April 28, 2014, Ms. Zarick was called to Room 105 by a housekeeper. No one else was present in the room. Ms. Zarick testified that she noticed a drawer in a bedside table appeared to be broken. She opened the drawer and discovered what she thought might be a "chunk of cocaine" inside. Ms. Zarick called a friend, who was an employee of the Warren Municipal Court, and inquired what she should do. Shortly thereafter, Ms. Zarick received a phone call from Detective Melanie Gambill, who had been contacted by the court employee.

         {¶5} Detective Gambill and Detective Trevor Sumption arrived at the motel. They conducted surveillance of Room 105, and a K9 unit conducted a drug sniff in the exterior hallway of the motel. At no time during their surveillance did they see appellant at the motel nor did they see anyone else enter the room. The detectives eventually obtained a search warrant for Room 105. They confiscated the following items while executing the warrant: 39 plastic bag "tips" containing crack cocaine; 5.3 grams of heroin in blue glassine bindles; packaging materials (unused plastic bags and glassine bindles, rubber bands, lotto cards cut into squares); two digital scales; two police scanners; a razor blade; a coffee pot with white residue (which field tested positive for cocaine); a box of .38 special ammunition with 19 live rounds; an owner's manual and a cardboard cutout for an M-11 semi-automatic pistol; and appellant's driver's license. No other identification was found in the room. The confiscated items were introduced as exhibits during trial. Photographs were taken of the room during the search but were later lost during a power outage at the police station.

         {¶6} Ms. Zarick testified that appellant's key card access was deactivated. On the next day, April 29, 2014, she heard a noise and witnessed appellant attempting to kick in the door to Room 105. He then proceeded to break in by breaking the window. Appellant was in the room and gone by the time police arrived.

          {¶7} At the conclusion of the state's case, appellant made a Crim.R. 29 motion for acquittal, which was denied. The defense rested without presenting any evidence and renewed its Crim.R. 29 motion; the motion was again denied.

         {¶8} The jury found appellant guilty on both counts for trafficking cocaine in an amount that equals or exceeds 27 grams and trafficking in heroin in an amount that equals or exceeds 5 grams.

         {¶9} The trial court sentenced appellant to mandatory eleven years on Count One, with a mandatory $10, 000 fine, and thirty-six months on Count Two, with a mandatory $5, 000 fine. The trial court ordered the sentences to run concurrent for a total term of imprisonment of eleven years. Appellant was advised that post-release control is mandatory for five years as to Count One and optional up to a maximum of three years as to Count Two.

         {¶10} Appellant filed a timely appeal from his conviction and raises six assignments of error, which we review out of numerical order for ease of discussion.

         {¶11} Appellant's third assignment of error asserts:

         {¶12} "The trial court erred by permitting the introduction of irrelevant and prejudicial exhibits."

         {¶13} Before trial, defense counsel moved in limine to exclude from evidence the owner's manual for an M-11 semi-automatic pistol and the box of ammunition, which were found during the search of the motel room. After hearing arguments from both sides, the trial court denied the motion but left open the possibility of revisiting the issue if it arose during trial, preferring to "see how it flows in."

          {¶14} At trial, the state introduced these items of evidence during Detective Gambill's testimony regarding the items found during the search. Defense counsel did not object to their admission at that time. After the state rested its case, the parties discussed admission of the state's exhibits. Defense counsel objected to the admission of the firearms-related exhibits during this discussion, and the trial court overruled the objection.

         {¶15} "To properly preserve an objection to that specific evidence for purposes of appeal, an objection to the court's ruling must be made when the evidentiary issue arises at trial." State v. Pennington, 4th Dist. Lawrence No. 15CA5, 2016-Ohio-2792, ¶19 (citations omitted). Because defense counsel did not object to admission of the evidence when the issue arose during the trial, appellant has forfeited all but plain error review on appeal. See State v. Grubb, 28 Ohio St.3d 199, 201 (1986) (holding that a ruling on a motion in limine is tentative and interlocutory and does not preserve the error for appeal). To constitute plain error, an error must be an obvious deviation from a legal rule that affected the outcome. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, ¶22 (citations omitted).

         {¶16} On appeal, appellant argues he had not been charged with any weapons-related offenses and any mention of the items was irrelevant and prejudicial because it improperly influenced the jury.

         {¶17} "Relevant evidence" is defined in Evid.R. 401 as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Pursuant to Evid.R. 402, irrelevant evidence is not admissible. Relevant evidence is also not admissible "if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury." Evid.R. 403(A). The exclusion of irrelevant or unfairly prejudicial evidence is mandatory, not discretionary. See Evid.R. 402 & 403(A).

         {¶18} We have held that evidence regarding firearms has some prejudicial effect in a criminal case, but it may also have probative value when the offender is charged with drug offenses. State v. Ogletree, 11th Dist. Portage No. 2005-P-0040, 2006-Ohio-6107, ¶16, citing State v. McKinney, 11th Dist. Lake No. 2000-L-210, 2002-Ohio-4360, ¶30, and State v. Smith, 5th Dist. Stark No. CA-8715, 1992 WL 61363, *3 (Mar. 16, 1992). "'"Experience on the trial and appellate benches has taught that substantial dealers in narcotics keep firearms on their premises as tools of the trade almost to the extent as they keep scales, glassine bags, cutting equipment and other narcotics equipment."'" Id., quoting Smith, supra, at *3, quoting United States v. Weiner, 534 F.2d 15, 18 (2d Cir.1976).

         {¶19} Here, the firearm evidence had probative value and was therefore relevant. Two police scanners were also found in the motel room, which suggests appellant knew he was conducting illegal activity and was concerned about police presence. Cf. id. at ¶17, citing State v. Williams, 2d Dist. Montgomery No. 20271, 2005-Ohio-1597, ¶62.

         {¶20} We do not deny that introducing the owner's manual and box of ammunition would have had some prejudicial effect; however, we also note that no firearms were recovered at the scene and introduced at trial. Any danger of unfair prejudice in this matter was not substantially outweighed by the ...

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