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State v. Howard

Court of Appeals of Ohio, Fifth District, Stark

February 20, 2018

STATE OF OHIO Plaintiff-Appellee
TORIANO HOWARD Defendant-Appellant

         Appeal from the Court of Common Pleas, Case Nos. 2016CR1756, 2016CR1803

          For Plaintiff-Appellee JOHN D. FERRERO Prosecuting Attorney By: KRISTINE W. BEARD Assistant Prosecuting Attorney

          For Defendant-Appellant BERNARD L. HUNT

          JUDGES: Hon. Patricia A. Delaney, P.J. Hon. Craig R. Baldwin, J. Hon. Earle E. Wise, Jr., J.


          WISE EARLE, J.

         {¶ 1} Defendant-appellant Toriano Howard appeals the judgement of conviction and sentence entered by the Stark County Court of Common Pleas on February 7, 2017. Plaintiff-appellee is the state of Ohio.


         {¶ 2} In August 2016, Detective Steve Minich of the Alliance Police Department arrested Aaron Hall for trafficking in heroin, a felony of the fifth degree. Hall had sold heroin to two people who subsequently overdosed. Those individuals told Minich Hall had sold them the heroin, and Hall told Minich appellant was his supplier. Minich asked Hall if he would be willing to perform three controlled buys from appellant in exchange for dropping the trafficking charge and Hall agreed. At the time, appellant, who Hall knew only as "Trap, " lived in Canton.

         {¶ 3} Minich went forward with the plan assisted by Alliance officers Hiles and Rajcan. The first buy took place on September 6, 2016. First, Hall and his vehicle were searched to make certain he did not possess any contraband. He was then equipped with an audio and video digital transmitter and recorder so that officers could hear Hall, see things from his point of view during the transaction, and also video record the transaction. Hall was then directed to contact appellant at the phone number he normally used to contact him. Hall sent a text to appellant and asked "Hey bro, can I grab a half, " which means may I purchase $75 worth of heroin. Appellant texted back "yea."

         {¶ 4} Hall was provided with $75 in previously photocopied currency. Officers then began following Hall to appellant's residence on 9th Street N.E in Canton. Partway there, however, appellant called Hall and told him to go to 1620 22nd St. N.E. in Canton instead. This was the residence of appellant's girlfriend's family. Hall proceeded to that address. Appellant came out of the house and Hall made the buy. There were children playing 20-30 feet away from the men during the transaction. Minich was able to see the transaction and the children. Hall then drove back to the Alliance Police Department with officers following. Once there, officers took possession of the heroin and searched Hall and his vehicle again. The heroin field tested positive for heroin and was sent to the Canton-Stark County Crime Lab where this testing was later confirmed.

         {¶ 5} The following day, a second controlled buy was made, this time in concert with the Canton Police Department. Officers from both departments met Hall at the Walmart on Harmon and Route 62. The same protocol was followed equipping Hall with audio and video recording devices, cash, and searching Hall as well as his vehicle. Hall texted appellant and asked if he could "grab a 50, " which is about half a gram of heroin. Howard responded "yea I'm on 9th."

         {¶ 6} Hall started towards 9th Street with officers following, but once again, halfway there appellant contacted Hall and told him to go to the 22nd Street address. Hall did so and completed the transaction. When appellant came outside with the heroin to meet Hall, there were two children playing in the front yard 15 to 20 feet away.

         {¶ 7} Following the transaction, Hall and the officers went to the Alliance Police Department where officers took possession of the heroin and searched Hall and his vehicle. The heroin again field tested positive, a finding later confirmed by the crime lab.

         {¶ 8} The final buy took place on September 12, 2016. The same procedures were followed. This time, however, the purchase was made at appellant's residence at 1009 9th Street, and Hall went inside the residence to make the buy. Appellant's 8 year-old son stood next to appellant as cash and drugs changed hands.

         {¶ 9} Based on these transactions, Canton Police Detective Mike McKay obtained search warrants for both the 9th Street N.E and 22nd Street N.E addresses. Canton officers executed the warrants and Alliance officers provided security. No drugs or evidence of drug trafficking were found at the 22nd Street address.

         {¶ 10} At the 9th Street address, officers were met by appellant's mother and step-father. They were cooperative and stated appellant was staying in the basement. Meanwhile, additional officers had appellant under surveillance. He was stopped while driving toward the 22nd street address with his girlfriend and children. Appellant was arrested, brought to the 9th Street address and seated in the living room with his mother and stepfather. When appellant arrived, Canton officers had already begun the search of the 9th Street home.

         {¶ 11} While that was going on, Officer McKay of the Canton Police Department was in the basement searching appellant's bedroom, McKay heard appellant come into the residence yelling profanities and failing to follow police orders. Appellant asked to speak to McKay. Once appellant calmed down, McKay and Officer Penvose took him into another room, turned on an audio recorder and read appellant his Miranda warnings. Appellant then told McKay he wanted to help officers with illegal drug activity in the area and asked McKay to contact a third agency. McKay had assumed appellant wanted to talk about the search and the items found by officers. He considered the conversation unproductive and did not feel appellant was being sincere. He therefore terminated the conversation and turned off the recorder. As soon as he did, appellant said "McKay, you know I sell that shit and I fuck with the hos. You know, you know." Once returned to the living room, appellant also stated "last time you guys got me with a gram; this time you got me by the balls cuz of 31 grams."

         {¶ 12} The search of the 9th Street home yielded evidence of drug trafficking, drug possession.

         {¶ 13} In the basement, three bags of heroin totaling 33.77 grams was found in one of appellant's shoes, and .05 grams of morphine was located on top of a speaker. Mail addressed to appellant was found on top of a nightstand. Two cell phones and a digital scale with cocaine residue on it were also found. There were children's toys, bedding, and clothing scattered throughout the basement.

         {¶ 14} Upstairs in the kitchen, officers found ammunition and plastic tear-off bags used for packaging drugs. Later testing identified traces of heroin on one of the tear-off bags. Suboxone strips, used by people with heroin addiction, were found in the pocket of a jacket in the living room. Officers also seized the cell phone appellant had on his person, the same one on which appellant received texts from Hall.

         {¶ 15} Numerous text messages were taken from the phone indicative of drug trafficking. Additionally, one message from "O'Burn" asked where appellant lived. Appellant responded "my mom's on 9th st. 9th st. n. Gibbs down the street from Church's Chicken."

         {¶ 16} As a result of these events, in case 2016CR1756, based on the search of his residence, appellant was charged with one count of trafficking in heroin in the vicinity of a juvenile, a felony of the first degree, one count of possession of heroin, a felony of the second degree, and for the morphine, one count of aggravated possession of drugs, a felony of the fourth degree. In case number 2016CR1803, based on the controlled buys, appellant was charged with three counts of trafficking in heroin in the vicinity of a juvenile, felonies of the fourth degree. On September 23, 2016, appellant pled not guilty at arraignment and was released on $100, 000 bond pending trial. On October 25, 2016, appellant failed to appear for a pretrial and a capias was issued for his arrest. The capias was served on November 18, 2016. Circumstances arising out of the fact that appellant absconded led to additional charges and a third case -- case number 2016CR2191.

         {¶ 17} In January, 2017, the state moved for joinder of all three cases and appellant filed a motion to sever. Appellant's motion argued each case should be tried separately, or in the alternative, the first two cases, 2016CR1756 and 2016CR1803, should be tried together and 2016CR2191 tried separately.

         {¶ 18} After a hearing on the matter, the trial court found no prejudice in trying all three cases together, however for procedural reasons, ruled 2016CR1756 and 2016CR1803 would be tried together and 2016CR2191 at a later date.

         {¶ 19} Cases 2016CR1756 and 2016CR1803 proceeded to a jury trial on January 24, 2017. At the conclusion of the trial, appellant was found guilty of one count of trafficking in heroin in the vicinity of a juvenile, a felony of the first degree, one count of possession of heroin, a felony of the second degree, and three counts of aggravated trafficking in the vicinity of a juvenile, felonies of the fourth degree. Appellant was acquitted of aggravated possession of drugs.

         {¶ 20} The trial court sentenced appellant on January 30, 2017. The court first merged the first degree felony trafficking in heroin and the second degree felony possession of heroin and imposed maximum consecutive sentences as follows: trafficking in heroin, a felony of the first degree, 11 years; three counts of trafficking in heroin, felonies of the fourth degree, 18 months on each count. The trial court ordered Howard to serve each sentence consecutively for an aggregate total of 15.5 years incarceration. {¶ 21} Appellant subsequently filed an appeal, and the matter is now before this court for consideration. He raises 6 assignments of error:














         {¶ 28} In his first assignment of error, appellant argues he was prejudiced by the joinder of case numbers 2016CR1756 and case number 2016CR1803. We disagree.

         {¶ 29} Pursuant to Crim.R. 13, "[t]he court may order two or more indictments or informations or both to be tried together, if the offenses or the defendants could have been joined in a single indictment or information."

         {¶ 30} Crim.R. 8(A) governs joinder of offenses and states the following:

Two or more offenses may be charged in the same indictment, information or complaint in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character, or are based on the same act or transaction, or are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan, or are part of a course of criminal conduct.

         {¶ 31} Crim.R. 14 governs relief from prejudicial joinder and states the following:

If it appears that a defendant or the state is prejudiced by a joinder of offenses or of defendants in an indictment, information, or complaint, or by such joinder for trial together of indictments, informations or complaints, the court shall order an election or separate trial of counts, grant a severance of defendants, or provide such other relief as justice requires. In ruling on a motion by a defendant for severance, the court shall order the prosecuting attorney to deliver to the court for inspection pursuant to ...

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