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State v. Henry

Court of Appeals of Ohio, Seventh District, Jefferson

August 31, 2017

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
ELVIS R. HENRY, DEFENDANT-APPELLANT.

         Criminal Appeal from the Court of Common Pleas of Jefferson County, Ohio Case No. 15-CR-120(A)

          For Plaintiff-Appellee: Atty. Jane M. Hanlin, Jefferson County Prosecutor Atty. Samuel A. Pate Assistant Prosecuting Attorney

          For Defendant-Appellant: Atty. Donald Gallick

          Hon. Carol Ann Robb Hon. Cheryl L. Waite Hon. Mary DeGenaro

          OPINION

          ROBB, P.J.

         {¶1} Defendant-Appellant Elvis Henry appeals from the verdicts entered in Jefferson County Common Pleas Court for possession of cocaine in excess of 100 grams and having a weapon while under disability. Four assignments of error are raised in this appeal. The first three assignments of error address whether cocaine is required to be weighed quantitatively. A quantitative measurement would reveal how much of the substance contains the pure drug and how much is filler. The Bureau of Criminal Investigation (BCI) tested and weighed the drug, but the weight of the drug included the filler. Appellant argues the weight of the drug should not include filler and since there was no evidence of the weight of only the cocaine, the state did not establish its burden of production for the possession charge. Similarly, using the same argument, Appellant also argues the possession conviction is against the manifest weight of the evidence. Appellant also asserts the trial court erred when it failed to permit the jury to hear the BCI expert's testimony that could have challenged the weight of the drug because there was no quantitative measurement. In the final assignment of error, Appellant assets he was denied a fair trial based on the doctrine of cumulative error.

         {¶2} Due to the Ohio Supreme Court's decision in State v. Gonzales, the first three assignments of error are meritless. In Gonzales, the Court held, "the entire 'compound, mixture, preparation, or substance, ' including any fillers that are part of the usable drug, must be considered for the purpose of determining the appropriate penalty for cocaine possession under R.C. 2925.11(C)." State v. Gonzales, Ohio St.3d, 2017-Ohio-777, N.E.3d, ¶ 3. The fourth assignment of error is also meritless; there were not multiple errors and thus, the doctrine of cumulative error is inapplicable. Consequently, for those reasons and the reasons expressed below, the conviction is affirmed.

         Statement of the Facts and Case

         {¶3} On July 28, 2015, Officer Hanlin from the Steubenville Police Department was contacted by a longtime informant, S.P.; she informed the officer she had been purchasing cocaine or crack cocaine from "E" through an "unwitting source." Tr. 49-50. An "unwitting source" is a middleman who has developed rapport with the seller. Tr. 50. The person wishing to buy the drugs gives money to the middleman, the middleman purchases the drugs and then gives the drugs to the purchaser; the purchaser does not have actual contract with the seller. Tr. 50. The middleman often does not know the buyer is an informant. In this case, S.P. could not purchase the drug directly from "E" because she had been the confidential informant in a previous case against him; "E" was aware she was an informant. Tr. 51. The "unwitting source" was B.P. Tr. 52.

         {¶4} With this information, Officer Hanlin asked S.P. to set up a buy. S.P. was searched and given marked money. She wore a hidden camera during the buy. B.P. was not searched before the controlled buy, was not working for the police, and was not aware of the police involvement. Tr. 101.

         {¶5} There were two controlled buys on July 28, 2015 because the camera hidden on S.P. was not working during the first buy. Tr. 53. During the buys S.P. remained in the car while B.P. purchased the drugs. S.P. stayed on a cellular phone with Officer Hanlin informing him of what she saw. There were three surveillance teams located within a block of Appellant's believed residence, 740 North Fifth Street, Steubenville, Ohio. Tr. 54. Appellant was observed exiting the residence and walking to the area where the controlled purchase took place. Tr. 54. He was then observed re-entering the residence several minutes later. Tr. 54.

         {¶6} As a result of the controlled buy, a search warrant for 740 North Fifth Street was obtained. A search of the residence was performed that day. Appellant, Angela Gilliam, and Gilliam's daughter were at the house when the search warrant was executed.

         {¶7} Appellant was sitting on a couch in the living room when the SWAT team entered. He was instructed to put his hands up, which he did. According to officers shortly after putting his hands up he started bending down and reaching under the couch. The officers immediately restrained Appellant and removed him from the house.

          {¶8} Appellant was searched. Crack cocaine and $140 of the $200 buy money was found on his person.

         {¶9} A search of the house produced 7 guns, over 100 grams of cocaine, drug paraphernalia, and multiple cellphones. All guns were tested and found to be operable. One of the guns was found under the couch where Appellant was sitting. The cocaine found consisted of approximately 110 grams of powder cocaine and 10 grams of crack cocaine. Many of the cellphones were locked and/or broken and did not have any evidentiary value. However, one cellphone was accessible and did contain some evidentiary material. On that cellphone a picture of Appellant and his son was found. Also the call log from that cellphone indicated 489 telephone calls were made on July 28, 2015. Officer Hanlin testified they were able to access the text messages from a couple days prior to July 28 and a couple days after July 28; he opined the text messages were drug related. Tr. 87-89.

         {¶10} As a result of the evidence obtained, Appellant was indicted for possession and having weapons while under disability. The possession charge was for possession of cocaine in excess of 100 grams in violation of R.C. 2925.11(A) and R.C. 2925.11(C)(4)(f), a first-degree felony. This charge contained an R.C. 2941.1410(A) major drug offender specification. The weapons while under disability charge was a third-degree felony in violation of R.C. 2923.13(A)(3). This charge referenced his prior felony drug possession conviction from Jefferson County, case number 05-CR-040.

         {¶11} During the pre-trial proceedings, Appellant moved to suppress the items found in the residence located at 740 North Fifth Street based in part on the search warrant. Judge Bruzzese had signed the search warrant and he was the judge assigned to preside over the trial. Accordingly, for purposes of the suppression motion, Judge Bruzzese recused himself and the suppression motion was ruled on by Judge Miller. Judge Miller overruled the suppression motion.

         {¶12} The case proceeded to a jury trial. Appellant's testimony indicated his defense was the police, specifically Officer Hanlin, planted the cocaine. He contended this was done because he did not cooperate in the 2005 drug case; allegedly Officer Hanlin wanted Appellant to work as an informant and reveal the supplier of the drugs.

         {¶13} The jury found Appellant guilty. 3/4/16 Verdicts. Appellant was sentenced to an aggregate 14-year sentence. He received 11 years on the possession of cocaine conviction. All 11 years was mandatory due to the specification. He received 3 years on the having weapons while under disability conviction. The court made the mandatory consecutive sentencing findings and ordered the sentences to be served consecutively to each other.

         {¶14} Appellant timely filed a notice of appeal from the verdicts and sentence.

         First Assignment of Error

         "The trial court erred by denying the Criminal Rule 29 motion as the state failed to meet the burden of production on the element of possession."

         {¶15} This assignment of error deals solely with the possession of cocaine conviction. Appellant contends the state failed in its burden of production because it did not offer evidence proving the quantity of "actual" cocaine in the mixture. This is a sufficiency of the evidence argument.

         {¶16} Sufficiency of the evidence is a question of law dealing with legal adequacy of the evidence. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). It is the legal standard applied to determine whether the case may go to the jury or whether the evidence is legally sufficient as a matter of law to support the verdict. State v. Smith, 80 Ohio St.3d 89, 113, 684 N.E.2d 668 (1997). In viewing a sufficiency of the evidence argument, the evidence and all rational inferences are evaluated in the light most favorable to the prosecution. State v. Goff, 82 Ohio St.3d 123, 138, 694 N.E.2d 916 (1998). A conviction cannot be reversed on grounds of sufficiency unless the reviewing court determines that no rational juror could have found the elements of the offense proven beyond a reasonable doubt. Id. at 138.

         {¶17} As aforementioned, Appellant was charged and convicted of possessing over 100 grams of cocaine in violation of R.C. 2925.11(A)(C)(4)(f). That provision provides:

(A) No person shall knowingly obtain, possess, or use a controlled substance or a controlled substance analog.
(C) Whoever violates division (A) of this section is guilty of one of the following:
(4) If the drug involved in the violation is cocaine or a compound, mixture, preparation, or substance containing cocaine, whoever violates division (A) of this section is guilty of possession of cocaine. The penalty for the offense shall be determined as follows:
(f) If the amount of the drug involved equals or exceeds one hundred grams of cocaine, possession of cocaine is a felony of the first degree, the offender is a major drug offender, and the court shall impose as a mandatory prison term the maximum prison term prescribed for a felony of the first degree.

R.C. 2925.11(A)(C)(4)(f).

         {¶18} Appellant's argument focuses on one element of the offense - the amount of cocaine. He contends the state did not produce evidence of the weight of the "actual" cocaine. He correctly points out the state's evidence of the weight of the cocaine included any filler materials contained in the cocaine mixture. In support of his position that the state was required to produce evidence of the "actual" weight of the cocaine he cites to State v. Gonzales, 6th Dist. No. WD-13-086, 2015-Ohio-461, a case from our sister district. In Gonzales, the court reversed a first-degree felony cocaine possession conviction because the "actual" cocaine weight, without the filler, was not established by the state. Id. at ¶ 40-48. The Sixth Appellate District Court held, "the state, in prosecuting cocaine offenses under R.C. 2925.11(C)(4)(a) through (f), must prove that the weight of the actual cocaine possessed by the defendant met the statutory threshold." Id. at ¶ 47. On that basis, Appellant asks us to hold there was insufficient evidence to convict Appellant of possessing over 100 grams of cocaine. In making the argument, Appellant acknowledges the Gonzales decision was appealed and accepted by the Ohio Supreme Court.

         {¶19} Following the briefing of this case, the Supreme Court released its decision in Gonzales. The Supreme Court reversed the Sixth Appellate District Court's decision and held, "the applicable offense level for cocaine possession under R.C. 2925.11(C)(4) is determined by the total weight of the drug involved, including any fillers that are part of the usable drug." State v. Gonzales, Ohio St.3d, 2017-Ohio-777, N.E.3d, ¶ 18. Therefore, the total weight of the cocaine includes fillers.

         {¶20} Stephanie Laux, a forensic scientist in the chemistry department of BCI tested the substances discovered in the search of 740 North Fifth Street. She weighed and identified five different substances. Tr. 153, 156-157; State's Exhibits 53, 58 and 59. The first substance was an off-white substance weighing .25 grams and was found to be cocaine. Tr. 153; State's Exhibit 53. The second substance was an off-white substance weighing 7.24 grams and was found to be cocaine. Tr. 153; State's Exhibit 53. The third substance was a white powder weighing 110.62 grams and was found to be cocaine. Tr. 153; State's Exhibit 53. The fourth substance was an off-white substance weighing .71 grams and was found to be cocaine. Tr. 156; State's Exhibit 58. The fifth substance was an off-white substance weighing .86 grams and was found to be cocaine. Tr. 157; State's Exhibit 59. Laux testified the total weight of the cocaine tested was in excess of 110 grams. Tr. 153-154.

         {¶21} Given the Ohio Supreme Court's decision and the state's evidence, the state met its burden of production. This assignment of error lacks merit.

         Second Assignment of Error

         "The conviction for Drug Possession is against the manifest weight of the evidence."

         {¶22} When reviewing a judgment under a criminal manifest weight standard of review, "[t]he court reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." Thompkins, 78 Ohio St.3d at 387. A reviewing court's discretionary power to reverse on manifest weight grounds and grant a new trial is exercised only in the exceptional case where the evidence weighs heavily against conviction. Id. This standard is a high one because the trier of fact was in the best position to determine ...


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