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State v. Raphael

Court of Appeals of Ohio, Twelfth District, Warren

January 16, 2018

STATE OF OHIO, Plaintiff-Appellee,
v.
JASON RAPHAEL, Defendant-Appellant.

         CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 14 CR 29858

          David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice Drive, Lebanon, Ohio 45036, for plaintiff-appellee

          The Helbling Law Firm, L.L.C., John J. Helbling, 6539 Harrison Avenue, #124, Cincinnati, Ohio 45247, for defendant-appellant

          OPINION

          PIPER, J.

         {¶ 1} Defendant-appellant, Jason Raphael, appeals his conviction in the Warren County Court of Common Pleas for possession of marijuana.

         {¶ 2} A Warren County deputy was patrolling Interstate 71 at approximately 1:30 a.m. when he observed a vehicle approach him at 66 m.p.h. in an area where the posted speed limit was 70 m.p.h. Despite approaching the deputy while driving below the speed limit, the vehicle slowed suddenly to 53 m.p.h. The deputy found the reduction in speed from 66 to 53 m.p.h. suspicious and began following the vehicle. Once behind the vehicle, the vehicle changed lanes for what the deputy perceived as no apparent reason. The deputy followed the vehicle for approximately nine minutes, during which it entered a construction zone. Within the construction zone, the deputy observed the driver of the vehicle commit lane violations. The deputy then initiated a traffic stop. However, the deputy had to deploy his blue lights twice before the vehicle pulled over to the side of the road.

         {¶ 3} The deputy approached the vehicle and shined his flashlight into the rear passenger seat of the vehicle where he observed large packages wrapped in blankets and tape. The deputy then approached the passenger side of the vehicle and asked the driver for identification after noticing that the passenger was talking on his cell phone. The driver was then identified as Gregory Clayton. Clayton told the deputy that he was moving items for his aunt, to whom the vehicle was registered. The deputy observed four cell phones in the front seat, as well as an air freshener hanging from the rear-view mirror. The deputy then made contact with the passenger, later identified as Raphael, who had been on his cell phone during the time the deputy spoke with Clayton. Raphael did not have identification to provide the deputy, but offered his player's card from the Horseshoe Casino.

         {¶ 4} The deputy observed that the two men were shaking excessively, refused to make eye contact with him, and were nervous. The deputy asked the men to exit the vehicle and performed a pat-down on each. Neither man had any contraband or weapons on their person. However, information from the police dispatch revealed that Clayton had been charged with drug activity in the past. The deputy requested a canine unit and backup, and such arrived. However, the canine did not indicate the presence of drugs in the vehicle.

         {¶ 5} The deputy, still suspicious of drug activity, called a detective from the Warren County Drug Task Force. The detective arrived and drove the vehicle Clayton was driving to the police garage and applied for a search warrant. The detective then executed the approved warrant and located approximately 400 pounds of marijuana in the back of the vehicle.

         {¶ 6} Clayton and Raphael were indicted for trafficking and possession of marijuana. Both men filed a motion to suppress the evidence and statements obtained on the night of the traffic stop. The trial court granted the motion to suppress all evidence seized as a result of the search of the vehicle, but denied the motion as to Raphael's statements to police and any evidence obtained from him.

         {¶ 7} The state appealed the trial court's decision to this court, and we reversed the trial court's decision granting the motion to suppress. State v. Raphael, 12th Dist. Warren Nos. CA2014-11-138 and CA2014-11-139, 2015-Ohio-3179. Raphael then appealed this court's decision to the Ohio Supreme Court, which accepted jurisdiction to review the appeal. However, the court later dismissed the appeal for lack of prosecution when defense counsel failed to file a brief. Raphael then filed motions for reconsideration, for relief, and for reopening of the appeal with the Ohio Supreme Court. However, each was denied by the Ohio Supreme Court, and the matter proceeded to trial.

         {¶ 8} Clayton and Raphael elected to have their joint case heard by the trial court rather than a jury. The judge found Raphael not guilty of trafficking, but guilty of possession of marijuana. The conviction carried a mandatory eight-year prison sentence. Raphael now appeals his conviction, raising the following assignments of error.

         {¶ 9} Assignment of Error No. 1:

         {¶ 10} THE TRIAL COURT ERRED IN CONVICTING THE DEFENDANT WITHOUT ...


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