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State v. Thompson

Court of Appeals of Ohio, Eleventh District, Portage

January 13, 2020

STATE OF OHIO, Plaintiff-Appellee,
MICHAEL THOMPSON, Defendant-Appellant.

          Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2018 CR 00075.

         Recommendation: Affirmed in part, reversed in part, and remanded.

          Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant Prosecutor, (For Plaintiff-Appellee).

          Edward F. Borkowski, Jr., (For Defendant-Appellant).



         {¶1} Appellant, Michael Thompson, appeals his conviction of possession of cocaine, a felony of the fifth degree, following a jury trial in the Portage County Court of Common Pleas. Appellant argues (1) his conviction was against the manifest weight of the evidence; (2) the trial court improperly admitted other-acts testimony; (3) the trial court improperly admitted evidence that the state did not properly authenticate and for which it did not establish the chain of custody; (4) he received ineffective assistance of counsel; (5) his sentence is contrary to law; and (6) the trial court erred by failing to provide him with post-release control notifications. We affirm in part, reverse in part, and remand the matter for a new trial.

         {¶2} On June 20, 2017, Patrolman Scott Krieger ("Officer Krieger") of the Ravenna City Police Department was in the squad room of the police department when he received a call from Laura Taylor ("Ms. Taylor), a records clerk at the department. Ms. Taylor informed him that appellant was there to pick up some police reports. Ms. Taylor had apparently read one of Officer Krieger's reports indicating that he wanted to speak with appellant about an assault for which he was a suspect.

         {¶3} Ms. Taylor explained to Officer Krieger that appellant had gone out to his car but was due to come back to pick up the reports. Officer Krieger proceeded to the south entrance of the police department to meet appellant.

         {¶4} The police department is located on the corner of Parkway and Spruce Street, and the records department entrance is on Spruce Street. One must ascend approximately ten outside steps to reach the entrance to the second floor. The building entrance contains two clear glass double doors.

         {¶5} Officer Krieger was inside the building, on the second floor, looking out the double doors when he observed appellant coming up the outside steps. As appellant pulled a set of car keys from his left pants pocket, Officer Krieger saw a small, clear, plastic bag fall out of that pocket. The bag dropped to the landing outside the department where Officer Krieger met appellant.

         {¶6} The plastic bag appeared to contain some white rocks, which Officer Krieger suspected was crack cocaine. Officer Krieger picked up the bag and informed appellant that it had just fallen out of his pocket. Appellant denied the bag belonged to him and suggested he may have just kicked it. Officer Krieger reassured appellant that it had fallen out of his pocket.

         {¶7} Officer Krieger attempted to discuss the report of the alleged assault, but appellant had difficulty communicating and continued to stare at the bag in Officer Krieger's hand. Appellant then indicated he was at the police department to obtain some reports with his name on them. Specifically, he wanted to obtain a report alleging that he had offered drugs to a juvenile. Officer Krieger held up the bag and stated, "It wasn't crack cocaine, was it?" Appellant put his head down and did not make any further statements.

         {¶8} Officer Krieger did not arrest appellant but informed him that he intended to send the suspected crack cocaine to the laboratory for testing. The officer advised appellant that if the test results came back positive for a controlled substance, he would be charged at a later date.

         {¶9} After the encounter, Officer Krieger returned to the squad room, and appellant entered the police department and presumably proceeded to the records department. Officer Krieger weighed the plastic bag and the suspected crack cocaine, placed it in an evidence bag, and sealed it. He put his initials across the seal. On the evidence bag, Officer Krieger listed an agency case number of 2171710029, the evidence tag number of 32577, the weight of 0.26 grams, appellant's name, the date, time, and location of recovery, and his name. He then submitted it to the police department's evidence room and filled out a Bureau of Criminal Investigation ("BCI") evidence submission form.

         {¶10} On June 28, 2017, Detective Greg Francis ("Detective Francis") submitted the evidence bag to BCI for laboratory testing at its office in Richfield, Ohio. According to Detective Francis, the original agency case number listed on the BCI evidence submission sheet was 2171560011, which was incorrect, so he scratched out this "clerical error and wrote the correct agency case number of 2171710029. According to Officer Krieger, case number 2171560011 related to the alleged assault in which Mr. Thompson was a suspect. Upon submission, BCI assigned its own unique laboratory number.

         {¶11} Erin Miller ("Ms. Miller"), a BCI analyst, retrieved the evidence from BCI's evidence vault for laboratory testing. Ms. Miller first weighed the substance without the clear plastic bag, which was 0.17 grams. She then performed a color test, which indicated the possible presence of cocaine. Next, she performed a GC-MS analysis, where she determined the substance was cocaine.

         {¶12} Ms. Miller submitted a written report containing her findings. She testified that the agency case number listed on her report, as submitted by the Ravenna police, was 217560011 (the alleged assault case). Finally, Ms. Miller placed the evidence bag within another bag and sealed it.

         {¶13} The laboratory results were also emailed to Detective Francis. As he did with the BCI evidence submission form, Detective Francis crossed out the agency case number of 217560011 (the alleged assault case), wrote 2171710029 (the underlying case) next to it, and dated it. Detective Francis subsequently retrieved the evidence from BCI.

         {¶14} The Portage County Grand Jury indicted appellant on one count of possession of cocaine, a felony of the fifth degree, in violation of R.C. 2925.11(A) and (C)(4)(a). Appellant pleaded not guilty.

         {¶15} The matter proceeded to a jury trial. Mr. Thompson filed a motion in limine to exclude evidence of other criminal acts. Mr. Thompson's counsel also orally requested exclusion of evidence relating to the drug testing, asserting that it was performed under a different case number. The trial court granted the motion to exclude prior acts unless appellant testified. It deferred ruling on the motion with respect to the drug testing.

         {¶16} The state presented testimony from three witnesses - Detective Francis, Officer Krieger, and Ms. Miller. The state also presented three exhibits - a sealed bag from BCI containing the Ravenna police's evidence bag (State's Exhibit 1), the BCI evidence submission form (State's Exhibit 2), and the BCI results sheet (State's Exhibit 3). Following Detective Francis' testimony, appellant's counsel renewed his motion to exclude the drug testing evidence. The trial court overruled the motion pending presentation of all of the evidence.

         {¶17} Following the state's presentation of evidence, appellant's counsel objected to State's Exhibit 2 (the BCI evidence submission form) and State's Exhibit 3 (the BCI results sheet) on the basis that they had been altered. Appellant's counsel stated he did not object to the admission of State's Exhibit 1 (the sealed bag from BCI containing the Ravenna police's evidence bag). The trial court admitted State's Exhibits 2 and 3 to let the jury decide "what they're worth."

         {¶18} The state rested, and appellant moved for acquittal, which the trial court denied. The defense rested without presenting any evidence. Appellant renewed his motion for acquittal, which the trial court again denied.

         {¶19} The jury returned a verdict of guilty on the sole count in the indictment. The trial court issued a judgment entry memorializing the jury's guilty verdict and referring the matter to the adult probation department for a presentence investigation and report.

         {¶20} At sentencing, the trial court found appellant was amenable to community control sanctions and sentenced him to 12 months of intensive supervision by the adult probation department followed by 36 months of general supervision, along with certain conditions. The trial court notified appellant that if he violated the terms of his community control sanctions, he may receive more restrictive community control sanctions or will serve a specific prison term of 12 months. The trial court subsequently issued a sentencing entry memorializing the conviction and sentence.

         {¶21} Appellant now appeals, raising six assignments of error. We shall consider them out of order. His second assignment of error provides:

         {¶22} "The court erred by permitting 'other acts' testimony."

         {¶23} The Supreme Court of Ohio has instructed "[a]ppellate review of a trial court's decision regarding the admissibility of other crimes, wrongs, or acts under Evid.R. 404(B) is conducted under an abuse-of-discretion standard." State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, ¶1.

         {¶24} Appellant's counsel filed a pretrial motion in limine to exclude other-acts evidence, which the trial court granted, but he did not object to the other-acts evidence at trial. When a party files a motion in limine regarding the exclusion of evidence but fails to timely object at trial, the court reviews the admission of such evidence under a plain error analysis. See State v. Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, ¶133; State v. Bowers, 11th Dist. Trumbull No. 2016-T-0049, 2017-Ohio-2726, ¶15.

         {¶25} The Supreme Court of Ohio has set forth very strict limitations on what constitutes plain error. State v. Devai, 11th Ashtabula Dist. No. 2012-A-0054, 2013-Ohio-5264, ¶17. To establish plain error, a defendant must show "(1) there was an error, (2) the error was 'plain,' i.e., obvious, and (3) the error affected substantial rights." State v. Tench, 156 Ohio St.3d 85, 2018-Ohio-5205, ¶217, citing State v. Barnes, 94 Ohio St.3d 21, 27 (2002).

         {¶26} To affect "substantial rights," the error "must have affected the outcome of the trial." Id., citing Barnes at 27. The defendant is therefore required to demonstrate a reasonable probability that the error resulted in prejudice. Id. "Notice of plain error under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the syllabus.

         {¶27} "Evidence that an accused committed a crime other than the one for which he or she is on trial is not admissible when its sole purpose is to show the accused's propensity or inclination to commit crime or that he acted in conformity with bad character." (Citations omitted.) State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, ¶15.

         {¶28} Evid.R. 404(B) states: "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Evid.R. 404(B) affords the trial court discretion to admit evidence of other crimes, wrongs, or acts for "other purposes," including, but not limited to, those set forth in the rule. Williams, supra, at ¶17. Hence, the rule affords broad discretion to the trial judge regarding the admission of other-acts evidence. Id.

         {¶29} The Supreme Court of Ohio has established the following three-step analysis regarding the admission of "other-acts" evidence: (1) whether it is relevant under Evid.R. 401, (2) whether it is presented for a permissible purpose, such as those stated in Evid.R. 404(B), rather than to prove the character of the accused in order to show activity in conformity therewith, and (3) whether its probative value is substantially outweighed by the danger of unfair prejudice under Evid.R. 403. Williams, supra, at ¶20.

         {¶30} We shall treat appellant's alleged problematic other-acts evidence in turn.

         {¶31} Defense counsel's reference to another case

         {¶32} First, appellant objects to a reference which occurred during defense counsel's cross-examination of Detective Francis about his scratching out a perceived "clerical error on the BCI evidence submission form:

         {¶33} "[DEFENSE COUNSEL]: I understand it might be clerical error, but actually that is another case involving Mr Thompson, isn't it?"

         {¶34} "[DETECTIVE FRANCIS]: That I don't know. I don't know what that case number correlates to." (Emphasis added.)

         {¶35} It appears appellant is objecting to a reference contained in a question defense counsel posed to a witness, not the witness's testimony. Evid.R. 404(B) prohibits the admission of certain "evidence." A defense attorney's question is not proof that an event occurred, and statements of counsel are not evidence. State v. Eddy, 8th Dist. Cuyahoga No. 104417, 2017-Ohio-741, ¶39. Therefore, defense counsel's question does not constitute "evidence" for purposes of Evid.R. 404(B).

         {¶36} Even if the question constituted "evidence," it was not "evidence" of another "crime, wrong, or act" under Evid.R. 404(B). Not all evidence regarding a defendant's behavior constitutes other-acts evidence. See, e.g., State v. Patton, 74 Ohio App.3d 224, 229 (3d Dist.1991) (finding that testimony regarding the defendant's oral statements and comments did not constitute other-acts evidence); State v. Heineman, 8th Dist. Cuyahoga No. 103184, 2016-Ohio-3058, ¶74 (testimony regarding the defendant's demeanor or behavior did not constitute other-acts evidence). The definition of the word "act" includes "the process of doing something; action" and "[something that is done or performed; deed." Patton, supra, at 229.

         {¶37} Here, defense counsel's reference to "another case" did not reference appellant's commission of any crime, wrong, or act. In addition, Detective Francis' response did not implicate appellant in another crime, wrong, or act, since he testified that he did not even know what the other case number related to.

         {¶38} The first of the prerequisites for plain error is the existence of an error. State v. Osie, 140 Ohio St.3d 131, 2014-Ohio-2966, ¶82. Even if the reference was inadmissible, appellant has not provided any authority that the trial court is required to sua sponte strike or provide a curative instruction regarding defense counsel's own question.

         {¶39} And if there was any error, it was invited error and not subject to plain error analysis. The doctrine of invited error precludes a defendant from making an affirmative and apparent strategic decision at trial and then complaining on appeal that the result of that decision constitutes reversible error. State v. Doss, 8th Dist. Cuyahoga No. 84433, 2005-Ohio-775, ¶7, quoting United States v. Jernigan, 341 F.3d 1273, 1290 (11th Cir.2003). Judicial scrutiny of counsel's performance is to be highly deferential, and reviewing courts must refrain from second-guessing the strategic decisions of trial counsel. State v. Carter, 72 Ohio St.3d 545, 558 (1995).

         {¶40} Appellant's defense has consistently been that the suspected crack cocaine related to another case. Thus, permitting the jury to hear that appellant had another case with the Ravenna police could create doubt as to whether BCI tested the right evidence. As a result of defense counsel's strategy to focus on the change in the incident report numbers, it was inevitable that evidence about other incidents would be presented. See, e.g., State v. Broadnax, 2d Dist. Montgomery No. 18169, 2001 WL 127779, *3 (Feb. 16, 2001) (eliciting damaging testimony was the product of a tactical decision to show a witness's bias); State v. Benitez, 8th Dist. Cuyahoga No. 98930, 2013-Ohio-2334, ¶22 (invited error found where line of questioning was "an apparent strategic decision" to cast doubt on the alleged victim's claims); State v. Jarrell, 4th Dist. Gallia No. 15CA8, 2017-Ohio-520, ¶52, 54 (invited error found where defense counsel's eliciting of testimony regarding the defendant's breath test on cross-examination was part of a reasonable trial strategy to challenge the functionality of the breath test machine).

         {¶41} Based on the foregoing, we find no reversible error with respect to defense counsel's reference to another case.

         {¶42} Officer Krieger's reference to an alleged assault

         {¶43} Appellant next objects to Officer Krieger's reference to an alleged assault during defense counsel's cross-examination:

         {¶44} "[DEFENSE COUNSEL]: Now, you've told the Jury twice that you were talking to him about another drug charge, but that wasn't the report he was there to get, right?

         {¶45} "[OFFICER KRIEGER]: The reason that I wanted to speak with him?

         {¶46} "[DEFENSE COUNSEL]: Yes.

         {¶47} "[OFFICER KRIEGER]: Was - he was listed as a suspect in an assault, that's why I was there - or that's what I wanted to speak to him."

         {¶48} We do not find error in the trial court's failure to intervene during Officer Krieger's testimony. A court does not have a per se duty to intervene when defense counsel elicits negative information from the state's witness. See State v. Stragisher, 7th Dist. Columbiana No. 03 CO 13, 2004-Ohio-6797, ¶17.

         {¶49} In addition, Officer Krieger's reference does not tend to prove appellant's bad character and conformity therewith. Mr. Thompson's prior involvement in an alleged assault had no bearing on whether he later possessed drugs in front of the police department. See State v. Jones, 8th Dist. Cuyahoga No. 68929, 1996 WL 355292, *3 (June 27, 1996) (defendant's propensity to commit drug crimes, if any, had no bearing on whether he engaged in a non-drug related shooting). Rather, the reference provides background information explaining why the records clerk called Officer Krieger upon Mr. Thompson's arrival and why Officer Krieger came out to speak with him.

         {¶50} Even if there was error, the error was invited. An error is invited if it was elicited by defense counsel on cross-examination. State v. Hare, 2d Dist. Clark No. 2017- CA-4, 2018-Ohio-765, ¶45; State v. Lenoir, 2d Dist. Montgomery No. 22239, 2008-Ohio-1984, ¶24. See also State v. Hartford, 21 Ohio App.3d 29, 31 (8th Dist.1984) (objection to evidence of other crimes committed by a defendant waived where it is first brought out on cross-examination by defendant's attorney).

         {¶51} Further, defense counsel's elicitation of this testimony appears to have been part of his trial strategy. In context, the testimony could permit the jury to infer that there was an evidentiary mix up with another case involving Mr. Thompson.

         {¶52} Based on the foregoing, we find no reversible error with respect to Officer Krieger's reference to an alleged assault.

         {¶53} Allegation of offering drugs to a juvenile

         {¶54} Appellant finally challenges to two portions of Officer Krieger's testimony during the state's direct examination where Officer Krieger recited appellant's own statement that he had heard there was a police report alleging he had offered drugs to a juvenile:

         {¶55} [THE STATE]: Okay. So as you're standing here having the conversation, tell us about that.

         {¶56} [OFFICER KRIEGER]: * * * So then the conversation changes to why he come [sic] to the police department. He indicated that he was there to get some reports with his names [sic] on them. Apparently, he had heard, or whatever, that one of the reports was a report about him offering drugs to a juvenile. He wanted that report. When he had mentioned that, I kind of held up the bag and I said, it wasn't crack cocaine, was it? And then he just kind of put his head down and didn't - didn't make anymore statements after that.

         {¶57} * * *

         {¶58} [THE STATE]: When you asked Mr. Thompson was this crack cocaine, and you said - I believe you said he just hung his head, or was - I'm sorry.

         {¶59} [OFFICER KRIEGER]: When he had told me that he was there to get reports or a report listing him as a possible suspect in offering drugs to a juvenile, that's when I said, it wasn't ...

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