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State v. Kamara

Court of Appeals of Ohio, Third District, Union

December 30, 2019

STATE OF OHIO, PLAINTIFF-APPELLEE/ CROSS-APPELLANT,
v.
GASUMU B. KAMARA, DEFENDANT-APPELLANT/ CROSS-APPELLEE.

          Appeal from Union County Common Pleas Court Trial Court No. 2018-CR-0158

         Judgment Affirmed in Part, Reversed in Part and Cause Remanded

          April F. Campbell for Appellant/Cross-Appellee

          Raymond Kelly Hamilton for Appellee/Cross-Appellant

          OPINION

          PRESTON, J.

         {¶1} Defendant-appellant/cross-appellee, Gasumu B. Kamara ("Kamara"), appeals the November 28, 2018 judgment of sentence of the Union County Court of Common Pleas. Plaintiff-appellee/cross-appellant, State of Ohio, filed a notice of cross-appeal from the same judgment of sentence. For the reasons that follow, we affirm Kamara's conviction but reverse Kamara's sentence and remand for resentencing.

         {¶2} This case arises from a May 22, 2018 incident in which Sergeant Matthew Himes ("Sergeant Himes") initiated a traffic stop of a vehicle operated by Kamara for failure to display a front license plate. (Sept. 6, 2018 Tr. at 87, 90-91). (See State's Exs. 1, 2). When asked for his driver's license, Kamara gave Sergeant Himes a driver's license issued to Raheem Gbor ("Gbor"). (Sept. 6, 2018 Tr. at 92-93, 138-139). (See State's Ex. 3). Upon making contact with Kamara and his passenger, Lillian McWilliams ("McWilliams"), Sergeant Himes detected the odor of raw marijuana about the vehicle. (Sept. 6, 2018 Tr. at 92). Accordingly, Sergeant Himes initiated a probable cause search of the vehicle. (Id. at 93-95). As Sergeant Himes led Kamara to his patrol vehicle, he observed Kamara chewing and attempting to ingest raw marijuana. (Id. at 92-94). Sergeant Himes instructed Kamara to spit out the contraband. (Id. at 94). Sergeant Himes handcuffed Kamara and placed him in the back of his patrol vehicle. (Id. at 94-95). (See State's Ex. 2). While Kamara waited in the back of Sergeant Himes's patrol vehicle, Sergeant Himes retrieved McWilliams from the passenger seat of Kamara's vehicle and placed her in the back of the patrol vehicle with Kamara. (Sept. 6, 2018 Tr. at 95). (See State's Ex. 2). Thereafter, Sergeant Himes and the officers on the scene conducted a probable cause search of the vehicle. (Sept. 6, 2018 Tr. at 100). (See State's Ex. 2).

         {¶3} After completing the vehicle search, Sergeant Himes removed Kamara and McWilliams from the back seat of his patrol vehicle and placed them in another officer's vehicle while he reviewed his patrol vehicle's video footage. (Sept. 6, 2018 Tr. at 101-103). Sergeant Himes's patrol vehicle footage depicted Kamara observing as Sergeant Himes searched McWilliams, who had a plastic bag containing cocaine protruding from her hair. (State's Ex. 2). (See State's Ex. 6). However, Sergeant Himes did not notice the bag of cocaine in McWilliams's hair during his search of her person. (Sept. 6, 2018 Tr. at 104). After McWilliams, who was handcuffed, was placed in the back of the patrol vehicle with Kamara, he informed McWilliams that the bag was sticking out of her hair and instructed her to lean over. (Sept. 7, 2018 Tr. at 110-111, 114, 127); (State's Ex. 2). As McWilliams leaned over, Kamara, who was still handcuffed, removed the plastic bag of cocaine from McWilliams's hair. (Sept. 7, 2018 Tr. at 127-130); (State's Ex. 2). Kamara then threw the bag of cocaine by McWilliams's feet. (Sept. 7, 2018 Tr. at 129-130); (State's Ex. 2). McWilliams used her foot to push the bag under the driver's seat, concealing it from view. (Sept. 7, 2018 Tr. at 130); (State's Exs. 2, 4).

         {¶4} After reviewing the video footage, Sergeant Himes located the bag of powder cocaine under the front seat of his patrol vehicle. (Sept. 6, 2018 Tr. at 101-103, 136-137). (See State's Exs. 4, 5, 6, 7). McWilliams and Kamara were subsequently arrested and taken to jail. (Sept. 6, 2018 Tr. at 106-107, 141). At the jail, McWilliams admitted to having additional drugs on her person and gave jail officials a bag of crack cocaine that had been concealed in her vaginal canal. (Id. at 141-144); (Sept. 7, 2018 Tr. at 69-77, 117-118). (See State's Exs. 5, 6, 8).

         {¶5} On July 2, 2018, the Union County Grand Jury indicted Kamara on seven counts: Count One of possession of cocaine in violation of R.C. 2925.11(A), (C)(4)(e), a first-degree felony; Count Two of trafficking in cocaine in violation of R.C. 2925.03(A)(2), (C)(4)(e), a second-degree felony; Count Three of trafficking in cocaine in violation of R.C. 2925.03(A)(2), (C)(4)(f), a first-degree felony; Count Four of tampering with evidence in violation of R.C. 2921.12(A)(1), (B), a third-degree felony; Count Five of obstructing official business in violation of R.C. 2921.31(A), (B), a second-degree misdemeanor; and Counts Six and Seven of identify fraud in violation of R.C. 2913.49(B)(1), (I)(2) and R.C. 2913.49(B)(2), (I)(2), respectively, fifth-degree felonies. (Doc. No. 2). On July 11, 2018, Kamara appeared for arraignment and entered pleas of not guilty to the charges in the indictment. (Doc. No. 10).

         {¶6} The case proceeded to a jury trial on September 6 and 7, 2018. (See Doc. No. 46). On September 7, 2018, the jury found Kamara guilty of all counts. (Doc. Nos. 32, 33, 34, 35, 36, 37, 38); (Sept. 7, 2018 Tr. at 315-321). (See Doc. No. 46).

         {¶7} On November 28, 2018, a sentencing hearing was held. (Doc. No. 46). The trial court found that Counts One and Three, Counts Two and Three, and Counts Six and Seven merged for the purposes of sentencing. (Doc. No. 46). Accordingly, the State elected to sentence Kamara on Counts Three and Six. (Id.). The trial court sentenced Kamara to ten years of mandatory imprisonment on Count Three; 30 months of imprisonment on Count Four, to be served consecutively to the ten-year mandatory prison term for Count Three; 90 days in prison on Count Five, to be served concurrently to Counts Three and Four; and 6 months in prison on Count Six, to be served consecutively to Counts Three and Four. (Id.).

         {¶8} On December 21, 2018, Kamara filed his notice of appeal. (Doc. No. 54). He raises two assignments of error for our review. On December 31, 2018, the State filed its cross-appeal. (Doc. No. 68). The State raises one assignment of error for our review.

         Kamara's Assignment of Error No. I

         Kamara's right to a fair trial was denied by the trial court's decision to allow the State to use other acts evidence that Kamara was a major drug trafficker for a six-month period, in violation of Evid.R. 403, 404, and the Due Process Clause.

         {¶9} In his first assignment of error, Kamara argues that the trial court erred by permitting the State to present "other acts" evidence. Specifically, Kamara objects to McWilliams's testimony that she and Kamara had engaged in drug trafficking for a six-month period prior to Kamara's arrest on the present case. Moreover, Kamara argues that the State did not provide him sufficient notice that it intended to use the "other acts" evidence at trial.

         {¶10} "'Generally, evidence which tends to show that the accused has committed other crimes or acts independent of the crime for which he stands trial is not admissible to prove a defendant's character or that the defendant acted in conformity therewith.'" State v. Wendel, 3d Dist. Union No. 14-16-08, 2016-Ohio-7915, ¶ 21, quoting State v. Hawthorne, 7th Dist. Columbiana No. 04 CO 56, 2005-Ohio-6779, ¶ 24, citing State v. Elliott, 91 Ohio App.3d 763, 770 (3d Dist.1993) and Evid.R. 404. "'"Evidence of other crimes, wrongs, or acts'" '"may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."'" Id., quoting State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, ¶ 15, quoting Evid.R. 404(B). See also R.C. 2945.59.

         {¶11} "In State v. Williams, the Supreme Court of Ohio set forth the three-step analysis trial courts should conduct in determining whether 'other acts' evidence is admissible under Evid.R.404(B)." Wendel at ¶ 22, citing Williams at ¶ 19-20. "'The first step is to consider whether the other acts evidence is relevant to making any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.'" Id., quoting Williams at ¶ 20, citing Evid.R. 401. "'The next step is to consider whether evidence of the other crimes, wrongs, or acts is presented to prove the character of the accused in order to show activity in conformity therewith or whether the other acts evidence is presented for a legitimate purpose, such as those stated in Evid.R. 404(B).'" Id., quoting Williams at ¶ 20. "'The third step is to consider whether the probative value of the other acts evidence is substantially outweighed by the danger of unfair prejudice.'" Id., quoting Williams at ¶ 20, citing Evid.R. 403.

         {¶12} "Generally, '[a] trial court is given broad discretion in admitting and excluding evidence, including "other bad acts" evidence.'" Id. at ¶ 23, quoting State v. Williams, 7th Dist. Jefferson No. 11 JE 7, 2013-Ohio-2314, ¶ 7, citing State v. Maurer, 15 Ohio St.3d 239, 265 (1984). "Thus, a reviewing court will not reverse a trial court's evidentiary ruling absent an abuse of discretion that materially prejudices the affected party." State v. Glenn-Coulverson, 10th Dist. Franklin No. 16AP-265, 2017-Ohio-2671, ¶ 24, citing State v. Issa, 93 Ohio St.3d 49, 64 (2001). An abuse of discretion implies that the trial court acted unreasonably, arbitrarily, or unconscionably. State v. Adams, 62 Ohio St.2d 151, 157 (1980).

         {¶13} We conclude that the trial court did not abuse its discretion by admitting "other acts" evidence. The "other acts" evidence to which Kamara objects is evidence of his drug trafficking activities from 2017 until the date of arrest. At trial, McWilliams testified that on May 22, 2018, she and her husband met with Kamara and Kamara's cousin, Tito, in Columbus. (Sept. 7, 2018 Tr. at 102, 104-107, 111-112). While in Columbus, Kamara handed Tito two separate plastic bags-one containing powder cocaine and one containing crack cocaine. (Id. at 105, 116-118). McWilliams testified that Tito handed the plastic bags to McWilliams who put the bag of powder cocaine in her hair and the bag of crack cocaine in her vaginal canal. (Id.). While McWilliams and Kamara were traveling from Columbus to Bellefontaine, they were stopped by Sergeant Himes and the instant criminal charges followed therefrom. (Id. at 101-102, 122).

         {¶14} McWilliams further testified that she traveled to Columbus from Bellefontaine to pick up powder cocaine from Kamara multiple times a week from November 2017 to May 22, 2018. (Id. at 118-121, 136-138). McWilliams testified that she had carried cocaine obtained from Kamara on her person "quite a few times" while traveling with Kamara to Bellefontaine, where she and her husband sold the cocaine. (Id.). McWilliams and her husband then gave the money they received from selling the drugs to Kamara. (Id. at 141). McWilliams testified that in exchange for carrying the cocaine for Kamara, she received a portion of the drugs for her personal use. (Id. at 135-136).

         {¶15} Under the first step of the Williams analysis, the evidence that Kamara had engaged in drug trafficking on other occasions is relevant in that this evidence makes it more probable that Kamara trafficked drugs in this case. See State v. Jones, 3d Dist. Logan No. 8-16-18, 2017-Ohio-4351, ¶ 11 (concluding that "evidence that Jones was convicted of forgery * * * for passing bad checks is relevant to making it more probable that Jones committed the forgeries in this case"), citing State v. Regan, 5th Dist. Delaware No. 13 CAA 08 0067, 2014-Ohio-3797, ¶ 19; State v. Ranes, 3d Dist. Putnam No. 12-15-03, 2016-Ohio-448, ¶ 20 (finding that evidence of Ranes's past conviction for illegal assembly or possession of chemicals for the manufacture of drugs "had a tendency to make more probable that Ranes had criminal intent when purchasing and collecting items such as pseudoephedrine"). According to McWilliams's testimony, Kamara's actions on the day of his arrest were consistent with the other occasions in which Kamara trafficked drugs. Further, McWilliams's testimony undermines Kamara's defense that he was unaware that McWilliams was carrying drugs on her person.

         {¶16} Concerning the second step of the Williams analysis, McWilliams's testimony regarding other instances of drug trafficking demonstrate intent, knowledge, and plan. See Evid.R. 404(B). According to McWilliams's testimony, her and Kamara's actions on May 22, 2018 were part of the same scheme that the pair participated in for approximately six months. Moreover, McWilliams's testimony that her relationship with Kamara was predicated on their drug-trafficking activities undermines Kamara's defense that he was unaware that McWilliams was carrying drugs on her person. McWilliams's testimony of her and Kamara's drug scheme also demonstrates the pair's purpose for traveling from Columbus to Bellefontaine on May 22, 2018. See State v. Moorer, 3d Dist. Seneca No. 13-12-22, 2013-Ohio-650, ¶ 25.

         {¶17} Finally, the third and final step of the Williams analysis involves a consideration of whether the probative value of the "other-acts" evidence is substantially outweighed by the danger of unfair prejudice. Wendel, 2016-Ohio- 7915, at ¶ 28. Here, the trial court gave the jury the following limiting instruction before McWilliams testified to her and Kamara's ongoing drug-trafficking scheme:

I want to give you an instruction that you may hear evidence from this point on by this witness that talks about other bad acts. * * * [T]his is what we call other acts evidence and there's [sic] rules that allow that evidence to come in. We do not, however, in this Court or any ...

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