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State v. Smith

Court of Appeals of Ohio, First District, Hamilton

November 15, 2017

STATE OF OHIO, Plaintiff-Appellee,
MAURICE SMITH, Defendant-Appellant.

         Criminal Appeals From: Hamilton County Court of Common Pleas TRIAL NOS. B-1506673 B-1406013B, Judgments Appealed From Are: Affirmed in C-160837; Affirmed in Part, Sentence Vacated in Part, and Cause Remanded in C-160836

          Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott Havlin, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

          The Farrish Law Firm and Michaela M. Stagnaro, for Defendant-Appellant.


          Zayas, Presiding Judge.

         {¶1} Maurice Smith appeals his convictions and sentences for one count of burglary, a felony of the second degree, one count of trafficking in cocaine, a felony of the first degree, one count of possession of cocaine, a felony of the first degree, one count of possession of marijuana, a felony of the fifth degree, and tampering with evidence, a felony of the third degree. He also appeals his sentence imposed on a community-control violation. Because we determine that the trial court erred in sentencing Smith, we sustain his tenth assignment of error and remand the matter for resentencing. We find no merit in his remaining assignments of error, so we affirm the remainder of the trial court's judgment.

         The 911 Call

         {¶2} On November 29, 2015, a man called 911 to report a burglary in progress. The caller identified himself by name and stated that he lived upstairs from the apartment being burglarized. He stayed on the phone with dispatch until the police arrived, and he continuously updated dispatch as to what he observed and heard.

         {¶3} The caller was silently watching the burglary from the hallway upstairs. He told the 911 operator that he had heard the perpetrator break open the door to the apartment and enter. He reported that the perpetrator was running back and forth between the apartment and the laundry room. He then heard the perpetrator slowly creeping up the stairs.

         {¶4} He saw the perpetrator who had broken into the apartment and told dispatch that he knew him, and that he had previously broken into the same apartment. The caller heard banging and reported that the perpetrator was fighting with the officers. The 911 operator urged him to calm down and to stay in his apartment. The caller reported that the perpetrator was a crack head and a thief, who had stolen his identification card. He also reported that an upstairs neighbor sold and delivered drugs that he kept in his car. Before hanging up the phone, he told the operator that he would be willing to file a police report and go to court.

         The Arrest

         {¶5} Sergeant Robert Godbey and Officer Travis Moyers arrived on the scene three minutes after the call was made. They were aware of the burglary in progress. As Godbey approached the door to the apartment building, Smith opened the door from the inside. Godbey testified that he immediately recognized Smith and saw a large bag of marijuana sticking out of his hoodie pocket. After addressing Smith by name, he reached for Smith's arm, and Smith pulled away. Both officers then struggled with Smith. While they were struggling, the bag of marijuana fell to the floor.

         {¶6} The struggle moved into a first-floor apartment, and Smith began to empty his pockets and throw cocaine and handfuls of marijuana in the apartment. After struggling for a few minutes, the officers were able to handcuff and arrest Smith. They searched him and recovered property that was later identified by the victim, Brandon Mattress, as items belonging to him.

         Preliminary Court Proceedings

         {¶7} Smith was indicted for burglary, trafficking in cocaine, possession of cocaine, possession of marijuana, and tampering with evidence. Smith's counsel filed a motion to suppress arguing that the officers did not have reasonable suspicion to stop Smith as he was leaving the apartment building. The motion was overruled, and the trial was scheduled for two weeks later.

          {¶8} In the meantime, Smith filed a pro se motion to dismiss, or in the alternative, a motion for a mistrial. Smith's counsel filed a motion to withdraw on the basis that his relationship with Smith was "irretrievably broken." The court scheduled a hearing on the motion to withdraw, and Smith informed the court he did not want new counsel and wanted his current counsel to continue to represent him. Counsel withdrew his motion and the pending pro se motions. Eleven days later, the trial court put on an entry allowing Smith's counsel to withdraw and appointing new counsel to represent Smith.

         {¶9} Smith filed additional pro se motions including a motion for an independent laboratory analysis, requesting that a fingerprint analysis be performed on the plastic bags that contained the drugs, and a motion to dismiss, alleging numerous flaws in the proceeding, including a speedy-trial violation.

         {¶10} His new counsel requested two continuances and another suppression hearing based on new evidence. The court granted counsel's requests, and the case was set for a second motion-to-suppress hearing. At the second motion-to-suppress hearing, counsel informed the court that Smith had drafted a motion to remove him as counsel but had not yet filed it. No reasons were given in support of the motion, and the trial court overruled it. The court asked counsel if he wanted to adopt and argue Smith's pro se motion to dismiss. Counsel declined, and the court overruled the motion. The second motion to suppress was denied.

         {¶11} Smith's trial was scheduled the same day, and a visiting judge presided over the trial. Prior to trial, Smith asked the visiting judge to rule on the pro se motions he had filed. When counsel again explained that Smith had drafted a motion to appoint new counsel, Smith clarified that he only wanted to address the speedy-trial issue and the motion for fingerprint analysis. His counsel told the court the request for fingerprint analysis was without merit, and that he could not argue the motion. The court asked the prosecutor and Smith's counsel to review the docket to determine whether there was a speedy-trial issue.

         {¶12} The following day, the prosecutor and Smith's counsel assured the court that time had not expired. They explained that time was tolled by all of the continuances, except one, which were requested by Smith, by the appointment of new counsel and by the motions to suppress. The case proceeded to trial.

         The Jury Trial

         {¶13} The state presented five witnesses. Michael Mattress testified that he lived in the apartment that was burglarized with his brother Brandon. Brandon Mattress testified that he sold convenience items, such as soft drinks, alcohol, chips, and cigarettes, from the apartment and from a small school bus that he converted into a store. He only accepted cash and kept it in a cashbox.

         {¶14} On the night of the burglary, Brandon was driving a friend to her job downtown, when he received a call from an upstairs neighbor, Donald Hodge. Hodge informed him that someone had broken into his apartment. While Brandon was driving home, Hodge continued to call him and update him on the burglary. Brandon picked up his brother Michael, and they met the police in the apartment. Brandon testified that the carton of cigarettes, bottles of alcohol, and the three rubber-banded, labeled stacks of money recovered from Smith belonged to him.

         {¶15} Wendy Pugh testified that she lived with her aunt in the same building in a ground-floor apartment. As she was going outside to find her aunt, she saw Smith coming down the stairs. Smith had been friends with her oldest son. She spoke briefly with Smith, and saw the officers enter the building then struggle with Smith. She went back into her apartment at the request of the officers. Suddenly, the front door burst open, and the struggle moved into her living room. She testified that she saw Smith throw the bag of marijuana, a carton of cigarettes, and the cocaine.

         {¶16} Officer Moyers testified that based on his experience and training, the cocaine was in bulk packaging, which was commonly used by drug dealers. He also discussed the struggle with Smith and confirmed that Smith was throwing the drugs when they were struggling in the apartment.

         {¶17} Sergeant Godbey also testified. In describing the struggle, Godbey explained that Smith "was attempting to pull things out of his pocket and tampering with our evidence * * *." Godbey also testified that he had 23 years of police experience and had investigated thousands of crack-cocaine cases. Based on his experience and training, the large amount of cocaine indicated that it was for distribution because a personal-use amount would be about the size of a pea.

         {¶18} While Godbey testified, the state played the 911 call for the jury and provided transcripts for the jury to follow along. Smith stipulated to the admissibility of the 911 call and requested that the transcript of the call be admitted into evidence. After Godbey testified, the state rested.

         {¶19} Smith called his sole witness, Donald Hodge. Hodge testified that he lived in the upstairs apartment. On the night of the burglary, Smith had come to his apartment looking for his uncle. Hodge invited him in for a few moments. Shortly after Smith left, Hodge heard the commotion downstairs. Hodge did not see a bag of marijuana in Smith's pocket. But Hodge did see a bag of marijuana on the floor by the entrance to the apartment building after the situation became calm.

         {¶20} On cross-examination, Hodge denied calling Brandon Mattress and telling him about the burglary. Hodge stated that he called Brandon to ...

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