from Union County Common Pleas Court Trial Court No.
Affirmed in Part, Reversed in Part and Cause Remanded
F. Campbell for Appellant/Cross-Appellee
Raymond Kelly Hamilton for Appellee/Cross-Appellant
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
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).
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).
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).
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.
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).
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.
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.
Assignment of Error No. I
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
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
"'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.
"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.
"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).
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
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).
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.
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.
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
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 ...