Court of Appeals of Ohio, Twelfth District, Warren
APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 14
P. Fornshell, Warren County Prosecuting Attorney, Kirsten A.
Brandt, 520 Justice Drive, Lebanon, Ohio 45036, for
Helbling Law Firm, L.L.C., John J. Helbling, 6539 Harrison
Avenue, #124, Cincinnati, Ohio 45247, for defendant-appellant
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
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 ...