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State v. Cox

Court of Appeals of Ohio, Tenth District

May 17, 2018

State of Ohio, Plaintiff-Appellee,
v.
Shaniece M. Cox, Defendant-Appellant.

          APPEAL from the Franklin County Court of Common Pleas (C.P.C. No. 15CR-213)

         On brief:

          Ron O'Brien, Prosecuting Attorney, and Michael P. Walton, for appellee. Argued: Michael P. Walton.

         On brief:

          Todd W. Barstow, for appellant. Argued: Todd W. Barstow.

          DECISION

          BRUNNER, J.

         {¶ 1} Defendant-appellant, Shaniece M. Cox, appeals an entry of judgment reflecting conviction of possession of heroin and tampering with evidence having been found guilty by a jury and an overall sentence of four years in prison for these crimes. Cox also challenges pretrial decisions of the trial court not to suppress incriminatory statements she made to the police and physical evidence recovered from her purse by the police. Because Cox was read the requisite Miranda[1] warnings and because she volunteered that she had contraband in her purse, we find that her voluntary statements and the fruits of the related search were lawfully admitted into evidence at trial. We also find that her convictions were sufficiently supported by the evidence and not contrary to the manifest weight of the evidence. Accordingly, we affirm.

         I. FACTS AND PROCEDURAL HISTORY

         {¶ 2} On January 16, 2015, a Franklin County Grand Jury charged Cox and a co-defendant, Kareem Jones, with possession of heroin and tampering with evidence. (Jan. 16, 2015 Indictment.) The indictment included a one-year firearm specification for the possession charge. Id.

         {¶ 3} The defense filed motions to suppress on December 1, 2015 and May 19, 2017 seeking exclusion of statements made by Cox to police and (in the second motion only) exclusion of physical evidence recovered by the police from Cox's purse. (Dec. 1, 2015 Mot. to Suppress; May 19, 2017 Mot. to Suppress.) The trial court held two hearings on the motions, one on July 12, 2016 and one on May 23, 2017. At both hearings, Ohio State Highway Patrol ("OSHP") Trooper, Kristi Comstock, testified and a video of the interaction between Cox and Comstock was shown in court to the trial judge. (Tr. at 7-26, 37-50, filed Sept. 1, 2017; Defense's Ex. 1.[2]) At the second hearing, another OSHP Trooper, Christopher Jackson, also testified. (Tr. at 50-84.)

         {¶ 4} Jackson testified that on August 5, 2014, shortly after midnight, he attempted to stop a car for speeding in a construction zone. Id. at 51-53. He testified that the car did not stop when he activated his lights, and instead turned off the freeway and proceeded into downtown Columbus. Id. at 52-53. At some point during the chase, he saw someone throw either one or two pistols from the moving car (his testimony varied somewhat between the suppression hearing and trial as to what he remembered actually seeing versus what he inferred from the fact that two pistols were recovered from the side of the road). Id. at 53-54, 136-39, 162-65. Officer Jackson explained that while arresting the driver, Jones, he found a large sum of money in Jones' pocket. Id. at 65. He testified that he was not involved in securing Cox but is aware that her purse, which was located in the back seat of the car, was searched and a second large sum of money and two bags of heroin were found. Id. at 58-59. He also mentioned that the car was towed because neither Cox nor Jones was the owner of the vehicle and he was unable to verify that either had the owner's permission to operate it. Id. at 58.

         {¶ 5} Comstock testified that she arrived after the chase was over and helped secure the suspects as well as to search them and the car. Id. at 7-8. She testified that Cox was handcuffed by unknown members of the Columbus Police Department and placed in the back of her patrol car. Id. at 8-11. Her testimony varied somewhat about whether Cox was asked any questions before being read the Miranda warnings. Id. at 25, 39-40. Video from her cruiser (which was played during the suppression hearings) reveals that before the Miranda warnings were given, Columbus police officers told Comstock that Cox had "weed" in her purse, whereupon, Cox volunteered that she had "weed" in the car and her purse. (State's Ex. E at 00:17:58-00:18:13; Tr. at 9-10.) Based on what Comstock claimed were safety reasons, Comstock questioned Cox about whether she had anything "stuffed down in" her (to which Cox responded negatively). (State's Ex. E at 00:18:00-00:18:13; Tr. at 39-40.) Comstock also asked some identifying questions of Cox. (State's Ex. E at 00:18:41-00:18:51.) Cox responded to questions about her identification by volunteering that her identification was in her purse. Id. Then the video reflects (and Comstock testified) that she read Cox the Miranda warnings and Cox verbally said that she understood her rights. (Tr. at 12-13; Defense's Ex. 1 at 00:27:00-00:27:46.)

         {¶ 6} The parties stipulated that immediately after reading Cox the Miranda warnings, no significant questioning took place until approximately one hour later. (Tr. at 43.) As Comstock drove Cox to the OSHP trooper post, she interviewed Cox. (Defense's Ex. 1 at 01:32:59-01:41:48.) During the drive, Cox told Comstock that Jones fled from the police because she told him to. (State's Ex. E at 01:32:59-01:33:22.) Cox explained that she was scared because she had all her money with her and had her guns with her. Id. at 01:33:40-01:35:08. She also stated that Jones knew nothing about these items. Id. In a portion of the video not introduced at trial but proffered in defense's exhibit No. 1, when questioned about drugs, Cox appeared completely unaware that heroin was found in her purse. (Defense's Ex. 1 at 01:38:40-01:41:48.) She said that the only drug she consumed was "weed" and stated that she told officers about the "weed" in her purse. Id. at 01:38:40-01:39:27. Though the audio portion of the video is hard to discern, it appears that shortly thereafter, Cox stated that Jones used heroin. Id. at 01:39:27-01:40:00. Just before entering the post, Comstock asked Cox if there was anything illegal in her purse. Id. at 01:41:30-01:41:36. Cox responded that there was nothing else illegal in her purse and the police could check and even "rip it up" to see for themselves. Id. at 01:41:35-01:41:48.

         {¶ 7} The trial court orally denied both motions to suppress at the end of each hearing and trial of the case began on June 12, 2017. (Tr. at 32-33, 83.) At trial, the video was again shown in court, this time, in some relevant parts, and five witnesses testified. See, e.g., id. at 145, 149, 191, 203-36. Two expert witnesses provided testimony that can be briefly summarized: The first was a crime lab scientist who determined that the substance found in two packages in Cox's purse was a total of approximately 49 grams of heroin. (Tr. at 249-50; State's Ex. A2.) The second expert was an officer who determined that the two pistols recovered from the chase scene were operable. (Tr. at 275-82; State's Exs. B2, C2.) This witness also testified that in 2014, heroin sold for approximately $1, 100 per ounce and that an ounce is 28 grams. (Tr. at 282.) The three remaining witnesses who testified for the State at trial were Jackson, Comstock, and an OSHP supervisor who witnessed Cox write a statement at the OSHP post.

         {¶ 8} Jackson and Comstock testified to approximately the same facts (albeit in more detail) that they related during the suppression hearings. Jackson testified that he was on patrol on August 5, 2014, when he saw a speeder, engaged in a short chase, observed a gun thrown from the car, and ultimately stopped the speeder. (Tr. at 117-29.) He confirmed that two pistols were found along the pursuit path of the car, that heroin was recovered from Cox's purse, that approximately $2, 000 was found in Jones' pocket, and that approximately $6, 000 was found in Cox's purse. Id. at 136-44. He acknowledged that he could only remember seeing one pistol thrown from the passenger side of the vehicle but his written report noted that another was thrown also. Id. at 162-65. He admitted that the car he was pursuing had window tint preventing him from seeing what was going on inside the car. Id. at 172. He agreed that the passenger side window of the fleeing car could have been rolled down using the driver's side window controls. Id. at 182. He confirmed that neither Cox nor Jones was the registered owner of the car and that three small baggies of marijuana were recovered from the floorboards of the vehicle. Id. at 180-81, 185.

         {¶ 9} Comstock testified that she responded to the scene of the stop following a radio call from Jackson. Id. at 202-03. She reported that Cox said she had "weed" in her purse and invited officers to retrieve her identification from the purse. Id. at 208-10. Comstock recounted that in her search of the purse she found heroin and a large amount of cash, not "weed." Id. at 208, 212-14, 217. However, she admitted that marijuana was found on the floorboards of the car. Id. at 214.

         {¶ 10} The final fact witness for the State, the OSHP supervisor who witnessed Cox giving a statement at the OSHP post, testified that he was summoned to the scene of the pursuit on August 5, 2014 at approximately 1:00 a.m. Id. at 252-53. He testified that, in the course of supervising his officers, he met Cox at the stop and then participated in an interview of Cox back at the OSHP post. Id. at 254. During this interview he witnessed Cox write the statement appearing in state's exhibit H. Id. at 254-57. However, he admitted that neither Cox nor any interviewing officer signed the statement and he did not watch her write the entire thing. Id. But he said that when he was intermittently in the interview room he saw her working on writing it. Id. That statement, which was read into evidence, is:

I was leaving the apartment 6043 Lakeclub pl. gathered all my things and once I left the apartment that my boyfriend picked me up from we where on our way to his sisters house. And thats when the cops got behind us I had 2 weapons witch was from my apartment that I had for protection. My boyfriend didn't know I had it So I told him to keep drivin and thats when I threw the fire arms out the window cause I was scared very scared and my boy friend new nothing about it until I threw them out. The money was mines that I have been saving up. Had to take it with me when I moved out the apartment I had no bank account.

(Sic passim.) (State's Ex. H); see also Tr. at 258-59.

         {¶ 11} During closing, the defense argued that the heroin, money, and guns belonged to Jones and that he had, unbeknownst to Cox, hidden the heroin and some cash in her purse during the pursuit and had, himself, flung the guns from the car since they were too big for him to hide in the purse. (Tr. at 325-40.) The prosecution argued that whether the heroin and guns were Cox's or whether she was hiding and trying to dispose of them for Jones, she was guilty either as a primary violator or as an aider and abettor. Id. at 323, 344.

         {¶ 12} After approximately one-half day of deliberating, the jury indicated that it was "unable to reach a unanimous verdict" on the heroin possession count. (Tr. at 366.) The trial court orally instructed the jury on the record, "I really don't think you've deliberated long enough to really give up." Id. The trial court then declared a recess. Id. On the afternoon of the following day, July 16, 2017, the jury announced a verdict of guilty on all charges and specifications. Id. at 368-74.

         {¶ 13} Approximately three weeks later, on August 4, 2017, the trial court held a sentencing hearing. Id. at 381. The trial court considered that Cox had no prior criminal record and a low chance of recidivism but also that Cox apparently shielded Jones from criminal liability by "taking the blame for all this." Id. at 392. It then sentenced Cox to three years for possession of heroin plus a consecutive one-year gun specification and two concurrent years on the tampering with evidence charge for a total of four years in prison. Id.

         {¶ 14} ...


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