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State v. Cook

Court of Appeals of Ohio, Fourth District, Gallia

November 7, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
MICHAEL L. COOK, Defendant-Appellant.

          Timothy P. Gleeson, Gleeson Law Office, Logan, Ohio, for Appellant.

          Jason D. Holdren, Gallia County Prosecuting Attorney, and Jeremy Fisher, Gallia County Assistant Prosecuting Attorney, Gallipolis, Ohio, for Appellee.

          DECISION AND JUDGMENT ENTRY

          MATTHEW W. MCFARLAND, JUDGE

         {¶1} Appellant Michael L. Cook appeals from his conviction for possession of heroin and cocaine, trafficking in heroin, and tampering with evidence after a jury trial in the Court of Common Pleas for Gallia County, Ohio. Appellant asserts two assignments of error on appeal. Namely, he contends that (1) his conviction for tampering with evidence under R.C. 2921.12 is not supported by sufficient evidence, and (2) the trial court erred by referring to the substance alleged to be heroin at trial as, in fact, heroin when explaining that it would not be placed in the jury room during deliberations for safety reasons.

         {¶2} The Court sustains Appellant's first assignment of error because the evidence does not support a finding that Appellant knew an official investigation into his possession of unlawful drugs was in progress, or about to be or likely to be instituted, when he tossed a bag containing heroin and cocaine out of a state trooper's view during a traffic stop. The Court therefore reverses his conviction for tampering with evidence and vacates the sentence imposed upon that offense. The Court overrules Appellant's second assignment of error, however, because he failed to object to the alleged error below and has not shown that it caused him any prejudice.

         FACTS

         {¶3} On March 19, 2015, Appellant was indicted on charges of possession of cocaine, a fifth degree felony in violation of R.C. 2925.11(A); possession of heroin, a third degree felony in violation of R.C. 2925.11(A); trafficking in heroin, a third degree felony in violation of R.C. 2925.03(A)(2); and tampering with evidence, a third degree felony in violation of R.C. 2921.12(A)(1). In February 2016, Appellant was arrested pursuant to the indictment. He entered a plea of not guilty to all charges and the trial court appointed counsel to represent him.

         {¶4} The charges against Appellant arose from a traffic stop on October 10, 2014. On that date, an Ohio State Highway Patrol trooper saw Appellant driving a pickup truck with window tint darker than permitted under Ohio law The trooper activated his overhead lights and followed Appellant into the parking lot of a Shake Shoppe restaurant. The trooper parked behind the truck and approached Appellant, who was standing beside the truck. The trooper asked Appellant for his license, registration and proof of insurance. After Appellant provided an Ohio ID card, the trooper walked to the other side of the truck to address Appellant's female passenger. While speaking to the passenger, the trooper saw Appellant "making very quick movements" and reaching into the truck's glove box. His nervous demeanor and "fumbling around" drew the trooper's attention and led him to believe that the stop might involve more than a window tint violation. The trooper, however, did not communicate this suspicion to Appellant.

         {¶5} The trooper used his radio, which was situated on his left shoulder, to call in Appellant's information to the Ohio State Highway Patrol. The Patrol responded that there was a warrant for Appellant's arrest in Gallia County. Now aware of the warrant, the trooper returned his attention to Appellant and noticed that his demeanor had changed. Appellant was less frantic and his nervousness had subsided.

         {¶6} The trooper asked Appellant about the warrant and why he was in Gallia County. Appellant said he was helping someone move, had bought cigarettes at another store, and was going to get something to eat. At this time, a patron leaving the Shake Shoppe alerted the trooper to a small bag lying in the parking lot between the truck and a vehicle parked beside it. The trooper retrieved the bag, which contained a "tan powdery substance" consistent with heroin. A laboratory analysis later determined the bag contained twenty-two small plastic bags of heroin and one small plastic bag of cocaine. The trooper placed the bag in the trunk of his cruiser.

         {¶7} The trooper read Appellant and his passenger their Miranda rights and placed them in the back of the cruiser. He then went to see if the Shake Shoppe's security cameras captured any evidence of how the bag ended up in the parking lot. They did not provide any such evidence. The trooper then checked the video from his in-dash camera. That video showed Appellant tossing the bag into the parking lot while the trooper was speaking with Patrol on his radio. When confronted with this information, Appellant denied any involvement with the bag. After additional questioning, Appellant was placed under arrest and, ultimately, charged with the crimes in the indictment.

         {¶8} This case did not proceed to trial until October 9, 2018 because Appellant failed to appear at two pretrial conferences. In both instances, Appellant was arrested pursuant to a warrant and the proceedings continued, but more than a year and a half of delay was inserted into the case.

         {¶9} One of the trial court's statements to the jury is at issue in this appeal. After the trial court provided jury instructions, but just before it released the jury to deliberate, the trial court informed the jury, "The other thing I want to tell you (the jury) is that we are, for safety reasons, not going to send the heroin back with you to be handled." This statement is the basis of Appellant's second assignment of error.

         {¶10} The jury returned a guilty verdict on all four counts. At sentencing, the trial court merged counts 2 and 3 for possession and trafficking in heroin, respectively. The State elected to proceed with sentencing on count 3 and the trial court sentenced Appellant as follows: 12 months for possession of cocaine, 36 months for trafficking in heroin, and 36 months for tampering with evidence. The two drug offenses are to be served concurrently to each other, but consecutively to the sentence for tampering with evidence, for a total prison term of 6 years.

         {¶11} On November 14, 2018, Appellant's trial counsel timely filed notice of this appeal. On February 15, 2019, Appellant was assigned separate appellate counsel.

ASSIGNMENTS OF ERROR
"I. THE CONVICTION FOR TAMPERING WITH EVIDENCE IS NOT SUPPORTED BY SUFFICIENT EVIDENCE.
II. THE TRIAL COURT DETERMINED AN ESSENTIAL
ELEMENT OF THE OFFENSE, INVADING THE PROVINCE OF THE ...

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