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State v. Hill

Court of Appeals of Ohio, Fourth District, Athens

January 5, 2018

STATE OF OHIO, Plaintiff-Appellee,
v.
CITO E.L. HILL, Defendant-Appellant.

          Timothy Young, Ohio State Public Defender, and Allen M. Vender, Assistant Ohio State Public Defender, Columbus, Ohio, for Appellant.

          Keller J. Blackburn, Athens County Prosecuting Attorney, and Merry M. Saunders, Athens County Assistant Prosecuting Attorney, Athens, Ohio, for Appellee.

          DECISION AND JUDGMENT ENTRY

          MATTHEW W. MCFARLAND, JUDGE.

         {¶1} Cito Hill appeals the judgment of the Athens County Court of Common Pleas convicting him of one count of aggravated trafficking in drugs and sentencing him to an eighteen-month prison term. On appeal, Appellant contends that 1) his conviction is not supported by sufficient evidence; 2) the trial court abused its discretion when it permitted the State to introduce evidence of other bad acts; 3) he received ineffective assistance of counsel because his attorney failed to object to prosecutorial misconduct in closing argument; and 4) the trial court abused its discretion when it admitted labels affixed to prescription bottles, which were both hearsay and not authenticated. Because we fail to find merit in Appellant's second, third and fourth assignments of error, and because we have determined under Appellant's first assignment of error that his conviction was supported by sufficient evidence, we overrule all of the assignments of error raised by Appellant. Accordingly, the judgment of the trial court is affirmed.

         FACTS

         {¶2} On November 6, 2013, the Athens County Grand Jury indicted Appellant on one count of aggravated trafficking in drugs (oxycodone) in violation of R.C. 2925.03(A)(1), a third-degree felony, and one count of aggravated trafficking in drugs (oxycodone) in violation of R.C. 2925.03(A)(2), a third-degree felony. Each count carried an attendant forfeiture specification. Appellant pleaded not guilty and the matter proceeded to trial on November 19, 2015. Just prior to trial, the State dismissed count one of the indictment.

         {¶3} The State presented several witnesses at trial, including Sergeant Coy Lehman of the Ohio State Highway Patrol. Sergeant Lehman testified that in the early morning hours of August 24, 2011, he received a call about a possible impaired driver traveling on Route 33 in Athens County. After locating the car and observing it swerve multiple times, Sergeant Lehman initiated a traffic stop. He testified that he asked Appellant, who was the driver, for his license and registration. Appellant admitted that he did not have a valid driver's license but provided Sergeant Lehman with a Florida identification card and a copy of the car's rental agreement. The agreement listed Tamara Cremeans, the mother of Appellant's child, as the authorized driver and showed an estimated return date of August 8, 2011.

         {¶4} Sergeant Lehman testified that Appellant stated he and his girlfriend were traveling from Florida to Columbus, and as Appellant was speaking, Sergeant Lehman noticed that his "speech was very slurred, * * * his pupils were pinpoint, which [was] odd because it was dark and they should be dilated. His eyes were red. His actions were lethargic and slow. His facial features were droopy." Sergeant Lehman testified that because he did not smell alcohol on Appellant, he suspected Appellant was under the influence of drugs.

         {¶5} Sergeant Lehman testified he noticed that Appellant's girlfriend also seemed impaired. While talking with her, Sergeant Lehman observed a prescription pill bottle lying near the gas pedal. The label on the bottle indicated that the pills were "Oxycodone" and that the prescription was filled for Appellant on August 22, 2011, just two days prior to the traffic stop. Sergeant Lehman testified that of the 180 pills that the prescription label indicated were originally in the bottle, "significantly less than 180 pills" remained. Sergeant Lehman testified that he then administered field sobriety tests to Appellant and that despite the fact the test results did not confirm his suspicions, he nevertheless placed Appellant under arrest for driving while under the influence of alcohol or drugs. Subsequent urine testing confirmed the presence of cocaine and marijuana metabolites in Appellant's system.

         {¶6} During the search of Appellant's person, Sergeant Lehman found a "wad of cash" totaling $1, 935.00 dollars. Sergeant Lehman testified that based on the number of missing pills and the large amount of cash, he suspected Appellant was transporting drugs. He further testified that after additional officers arrived on the scene, a search of the car yielded two more prescription pill bottles in Appellant's name and two cell phones. The record reveals that Appellant stated, on a recording of the traffic stop admitted a trial, that both of the cell phones in the car were his.

         {¶7} The record reveals that of the 180 tablets that the label indicated were originally in the first bottle, which was found near the gas pedal in plain view, there were only 70 tablets remaining. The label on a second prescription pill bottle, which was found in the driver's door storage compartment, indicated that the pills were "Alprazolam" and that the prescription was filled for Appellant on August 22, 2011, as well. The label on that bottle indicated there were 84 pills, but of the 84 pills that the label indicated were originally in the bottle, there were only 37 whole and 14 broken pieces remaining. A third bottle containing oxycodone was found in the center console of the vehicle. The label on that bottle, also dated August 22, 2011, indicated there were 140 pills, but there were only 11 pills remaining.[1] It was later determined that the bottles did in fact contain oxycodone, a schedule II controlled substance, and alprazolam, a schedule IV controlled substance. Thus, out of 320 oxycodone pills prescribed to Appellant just two days prior, 239 pills were missing at the time Appellant was stopped.

         {¶8} The State also presented testimony from Detective Chuck Haegele, employed by the Athens City Police Department and assigned to the Athens Major Crimes Unit. Detective Haegele, though not involved with Appellant's stop or arrest, testified generally with respect to his specific training and experience in drug interdiction. The trial court allowed the detective's testimony, over the objection of Appellant, "just for background[, ]" in response to the State's asserted purpose of educating the jury. Detective Haegele testified that he typically looks for certain drug interdiction factors or common indicators, including rental vehicles, not carrying identification, coming from other states, including Michigan, Florida and Washington, D.C., and carrying prescription pills, the most common being oxycontin or oxycodone.

         {¶9} The jury ultimately found Appellant guilty of aggravated trafficking in drugs. However, it found that the State had not proved that the cash found on Appellant was derived through the commission of the offense. Appellant was subsequently sentenced to an eighteen-month prison term, an eighteen-month suspension of his operator's license, and fines totaling $6, 935.00. Appellant now brings his timely appeal, assigning the following errors for our review.

         ASSIGNMENTS OF ERROR

         "I. THE TRIAL COURT VIOLATED CITO HILL'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL WHEN, IN THE ABSENCE OF SUFFICIENT EVIDENCE, IT ENTERED A JUDGMENT OF CONVICTION FOR AGGRAVATED TRAFFICKING OF DRUGS.

         II. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT PERMITTED THE STATE TO INTRODUCE EVIDENCE OF OTHER BAD ACTS, AND THUS DENIED CITO HILL HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL.

         III. CITO HILL RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE HIS ATTORNEY FAILED TO OBJECT TO PROSECUTORIAL MISCONDUCT IN CLOSING ARGUMENT, IN VIOLATION OF MR. HILL'S RIGHTS UNDER THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. IV. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ADMITTED LABELS AFFIXED TO PRESCRIPTION BOTTLES, AND THE LABELS WERE BOTH HEARSAY AND NOT AUTHENTICATED."

         ASSIGNMENT OF ERROR II

         {¶10} For ease of analysis, we address Appellant's assignments of error out of order. In his second assignment of error, Appellant contends that the trial court abused its discretion when it permitted the State to introduce evidence of other bad acts, thus denying him his right to due process and a fair trial. Appellant's argument under this assignment of error is twofold. First, Appellant argues the trial court erred by allowing the jury to consider urinalysis results showing that he had ingested illicit drugs. Second, Appellant argues the trial court erred in allowing evidence of "drug interdiction" factors. Appellant argues the admission of this evidence violated Evid.R. 404(B). The trial court denied Appellant's motion in limine requesting this evidence and testimony be excluded. The State argues, with respect to the admission of the urine test results, that because defense counsel failed to object to the admission of testimony by expert witness, Emily McAnulty, this issue was not properly preserved for purposes of appeal.

         {¶11} Generally, appellate courts do not directly review in limine rulings. State v. Hapney, 4th Dist. Washington No. 01CA30-31, 2002-Ohio-3250, ¶ 55; citing State v. White, 4th Dist. Gallia No. 95CA08, 1996 WL 614190. Such rulings are tentative and interlocutory and made by a court only in anticipation of its actual ruling on evidentiary issues at trial. See McCabe/Marra Co. v. Dover, 100 Ohio App.3d 139, 160, 652 N.E.2d 236, 250 (8th Dist. 1995); Collins v. Storer Communications, Inc., 65 Ohio App.3d 443, 446, 584 N.E.2d 766 (1989). Thus, the grant or denial of a motion in limine does not preserve any error for review. See State v. Hill, 75 Ohio St.3d 195, 202-203, 661 N.E.2d 1068 (1996). Rather, in order to preserve the error, the evidence must be presented at trial, and a proper objection lodged. See State v. Brown, 38 Ohio St.3d 305, 528 N.E.2d 523, paragraph three of the syllabus (1988); State v. Grubb, 28 Ohio St.3d 199, 503 N.E.2d 142, paragraph two of the syllabus (1986). An appellate court will then review the correctness of the trial court's ruling on the objection rather than the ruling on the motion in limine. See White, supra; Wray v. Herrell, 4th Dist. Lawrence No. 93CA08, 1994 WL 64293.

         {¶12} "A trial court has broad discretion in the admission or exclusion of evidence, and so long as such discretion is exercised in line with the rules of procedure and evidence, its judgment will not be reversed absent a clear showing of an abuse of discretion with attendant material prejudice to defendant." State v. Green, 184 Ohio App.3d 406, 2009-Ohio-5199, 921 N.E.2d 276, ¶ 14 (4th Dist.); citing State v. Powell, 177 Ohio App.3d 825, 2008-Ohio-4171, 896 N.E.2d 212, ¶ 33 (4th Dist). " 'Although the abuse of discretion standard usually affords maximum [deference] to the lower court, no court retains discretion to adopt an incorrect legal rule or to apply an appropriate rule in an inappropriate manner. Such a course of conduct would result in an abuse of discretion.' " See 2-J Supply, Inc. v. Garrett & Parker, L.L.C., 4th Dist. Highland No. 13CA29, 2015-Ohio-2757, ¶ 9; quoting Safest Neighborhood Assn. v. Athens Bd. of Zoning Appeals, 2013-Ohio-5610, 5 N.E.3d 694, ¶ 16. When applying the abuse-of-discretion standard of review, appellate courts must not substitute their judgment for that of the trial courts. See In re Jane Doe 1, 57 Ohio St.3d 135, 138, 566 N.E.2d 1181 (1991). Furthermore, an appellate court must presume that the findings of the trial court are correct because the finder of fact is best able to observe the witnesses and to use those observations to weigh witness credibility. Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 81, 461 N.E.2d 1273 (1984); see also Mahlerwein v. Mahlerwein, 160 Ohio App.3d 564, 2005-Ohio-1835, 828 N.E.2d 153, ¶ 19 (4th Dist.).

         {¶13} Appellant argues that the evidence related to urine testing and drug interdiction factors should have been excluded under Evid.R. 404(B), which provides that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." However, Evid.R. 404(B) also contains exceptions, stating that evidence may be admissible "for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."

         {¶14} A review of the record reveals that the State sought to introduce evidence, at the end of day one of the trial, regarding Appellant's impairment on the night of the traffic stop, in part with testimony and evidence related to the field sobriety tests that were conducted. Appellant objected, arguing such testimony constituted impermissible other acts evidence. The trial court decided to adjourn the trial for the day so that further discussion could be had outside the presence of the jury, but agreed that the evidence might constitute inadmissible other acts evidence. The trial resumed the next day with the State having filed a formal motion requesting the trial court to reconsider its prior ruling on the OVI evidence. The reason advanced by the State regarding the need for the evidence related to defense counsel's claim during both voir dire and opening statements that Appellant was stopped for nothing other than "driving while black."

         {¶15} Appellant objected to the motion to reconsider, arguing that because he was not formally charged with Operating a Vehicle While Intoxicated (OVI), such evidence was irrelevant and also consisted of other bad acts evidence. After an extended bench conference at the beginning of day two of the trial, the trial court agreed and ruled that evidence related to Appellant's impairment, beyond his driving and the video and of the initial stop, were not relevant, would not be admitted, and thus the court denied the motion to reconsider.

         {¶16} However, on day three of the trial, the State sought to introduce the urine test results from the urinalysis performed on Appellant the night of the stop, arguing that the results were admissible because Sergeant Lehman had stated one of the factors he considers in drug trafficking investigations is whether or not an individual is a drug user as well. The trial court held off ruling on the issue until later in the afternoon, and when it did it decided as follows:

"As a preliminary matter as to the issues raised by the State, by the State at the last break the Court will allow the testimony of the State's witness tomorrow morning. Defense counsel can lodge any objections to her testimony at the appropriate time. But the court will allow the testimony."

         {¶17} The next morning, on day four of the trial, Appellant filed a written motion in limine, arguing that the urine test results were inadmissible. Appellant further asked the trial court to exclude "evidence related to drug trafficking indicators, " including the urine test results. Appellant argued in his motion that the State's introduction of urine test results showing drug use, as well as testimony describing "drug trafficking indicators" such as "travelling between certain State's [sic], using rental cars, [and] using drugs * * *" is just another way of saying "that drug traffickers have certain character traits[, ]" and that Evid.R. 404(B) specifically prohibits the use of other crimes, wrongs or acts to establish character or action in conformity therewith. Appellant argued that all of the drug trafficking indicators ...


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