Cleveland v. Carson

[Cite as Cleveland v. Carson, 2014-Ohio-608.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 100060

CITY OF CLEVELAND
PLAINTIFF-APPELLEE

vs.

YALANDA CARSON

DEFENDANT-APPELLANT

JUDGMENT:
AFFIRMED

Criminal Appeal from the
Cleveland Municipal Court
Case No. 2012 CRB 039089

BEFORE: Boyle, A.J., S. Gallagher, J., and E.T. Gallagher, J.

RELEASED AND JOURNALIZED: February 20, 2014
ATTORNEY FOR APPELLANT

Thomas G. Haren
Seeley, Savidge, Ebert & Gourash
26600 Detroit Road
Suite 300
Westlake, Ohio 44145

ATTORNEYS FOR APPELLEE

Barbara Langhenry
Director of Law
BY: Victor R. Perez
Chief Prosecutor
Marco A. Tanudra
Assistant City Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, A.J.:

{¶1} Defendant-appellant, Yalanda Carson, appeals her conviction for permitting

drug abuse. Finding no merit to the appeal, we affirm.

Procedural History and Facts

{¶2} Carson was charged with a single count of permitting drug abuse, a

violation of R.C. 2925.13. She pleaded not guilty to the charge, and the matter

proceeded to a bench trial where the following evidence was presented.

{¶3} Following reports of drug activity at 10909 Sandusky Avenue and the

discovery of cocaine residue in several sandwich-size bags during a “trash pull” outside

of the residence, Cuyahoga Metropolitan Housing Authority (“CMHA”) police officers

obtained a search warrant for the premises. Carson resided at the house with her

husband, Timothy Burrage, and their two children. The CMHA officers, in conjunction

with a Cleveland police SWAT unit and K-9 unit, executed the warrant on November 2,

2012.

{¶4} According to CMHA police officer Paul Hermensky, the drug-sniffing

canine present at the scene alerted to something in the dining room. In one dining room

cabinet, police discovered a ceramic plate with a white substance, later determined to be

1.54 grams of cocaine, and a razorblade. In another dining room cabinet, police

discovered “marijuana roaches” and a marijuana grinder. Based on the photographs

offered into evidence, the dining room cabinets had leaded-glass doors. Police further

discovered a marijuana grinder on the dining room table and a scale with residue in the
immediate-mantel area. The residue on the scale was later determined to be cocaine.

Hermensky testified that all of these items were in plain view upon their entry into the

home.

{¶5} Officer Hermensky further testified that “a nice sum of crack cocaine” was

found in a jacket stored in the entryway closet, which was later determined to be 8.87

grams of crack cocaine. The officers also located a firearm and two magazine cartridges

under the master bedroom mattress.

{¶6} Officer Hermensky further indicated that they encountered six people upon

entering the home: Carson, Burrage, their two children (both under the age of 18), and

two other adult males. Officer Hermensky testified that Carson indicated that they were

all playing cards earlier and that she had smoked some marijuana. She denied, however,

being aware of any of the items seized from the house.

{¶7} CMHA police detective Thomas Williams corroborated officer

Hermensky’s testimony. He further testified that Burrage pleaded guilty to drug

trafficking in connection with the evidence seized from the search.

{¶8} The trial court found Carson guilty of the single charge of permitting drug

abuse and sentenced her to 180 days in jail and a $1,000 fine. The trial court further

ordered all of the days in jail suspended, $800 of the fine suspended, and one year of

community controlled sanctions.

{¶9} Carson appeals her conviction, raising four assignments of error:

I. The trial court erred by denying appellant’s motion for continuance
due to new trial counsel’s being unprepared to proceed on the
 scheduled trial date, thus denying appellant effective assistance of
counsel in violation of Amendments VI and XIV of the United States
Constitution, and Article I, Section 10 of the Ohio Constitution.

II. Appellant’s former public defender provided ineffective assistance
of counsel by failing to follow the procedure outlined in R.C.
2925.51 and demanding live testimony from the lab technician who
tested the alleged contraband, thus waiving appellant’s right to
confront the witnesses against her in violation of Amendments VI
and XIV of the United States Constitution, and Article I, Section 10
of the Ohio Constitution.

III. The trial court erred by exercising subject matter jurisdiction over
this case, where the officers executed an extra-jurisdictional search
warrant.

IV. The trial court erred by convicting appellant based on insufficient
evidence, thereby denying her due process of law in violation of
Amendment XIV to the United States Constitution and Article I,
Section 10 of the Ohio Constitution.

{¶10} For ease of discussion, we will address these assignments of error out of

order.

Denial of Motion for Continuance

{¶11} In her first assignment of error, Carson argues that the trial court abused its

discretion in denying her motion to continue the trial. She further contends that the

denial of her trial counsel’s motion for a continuance denied her effective assistance of

counsel. We disagree.

{¶12} The decision to grant or deny a continuance rests with the sound discretion

of the trial court and will not be reversed absent an abuse of discretion. State v.

Character, 8th Dist. Cuyahoga No. 93765, 2010-Ohio-4128, ¶ 16. “Abuse of discretion”

has been described as a ruling that lacks a “sound reasoning process”; it is a decision that
is unreasonable, arbitrary, or unconscionable. State v. Torres, 8th Dist. Cuyahoga No.

99596, 2013-Ohio-5030, quoting AAAA Ents., Inc. v. River Place Community Urban

Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).

{¶13} “‘There are no mechanical tests for deciding when a denial of a continuance

is so arbitrary as to violate due process. The answer must be found in the circumstances

present in every case, particularly in the reasons presented to the trial judge at the time the

request is denied.’” State v. Unger, 67 Ohio St.2d 65, 67, 423 N.E.2d 1078 (1981),

quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964). A

trial court should consider certain factors when deciding whether to grant a criminal

defendant’s motion for a continuance: (1) the length of the requested delay; (2) whether

the defendant has requested and received other continuances; (3) the inconvenience to

each of the parties and their attorneys, witnesses, or the court; (4) the legitimacy of the

request or whether it is simply a dilatory tactic; (5) whether the requesting party’s actions

created the need for the delay; and (6) any other relevant factors based on the facts of the

case. Id.

{¶14} Here, the record reveals that Carson’s attorney moved for the continuance

the day of trial, despite the trial court having granted several continuances on the

defendant’s behalf previously. The case had been pending for over five months, placing

the case within the six-month limit of Sup.R. 39. The city’s witnesses were all present

and ready to testify. Notably, defense counsel ultimately acknowledged that he was

prepared to go to trial. It appears that the defense counsel’s primary motivation for the
continuance was for the trial court to consider his untimely motion to suppress that he had

filed that same day. As discussed below, however, the motion lacked merit and,

therefore, Carson suffered no prejudice by the trial court’s refusal to grant leave to file the

motion and continue the trial.

{¶15} The first assignment of error is overruled.

Court’s Subject Matter Jurisdiction

{¶16} In her third assignment of error, Carson argues that the trial court lacked

subject matter jurisdiction over the case because the CMHA officers, who executed the

search warrant and charged Carson, operated outside their jurisdictional limits.

Specifically, Carson contends that the CMHA officers only have authority to exercise

police powers on CMHA properties, which did not include the property at issue.

{¶17} In support of this argument, Carson relies on dicta contained in State v.

Dailey, 8th Dist. Cuyahoga No. 93214, 2010-Ohio-1981, ¶ 19, wherein this court

expressed concern over a CMHA officer stopping an individual outside of a CMHA

property pursuant to a mutual aid agreement with the local municipality. But Carson’s

argument is misplaced. In this case, both Officer Hermensky and Det. Williams testified

that, in addition to being CMHA officers, they are sworn Cuyahoga County sheriff’s

deputies. This court has consistently rejected any argument that CMHA officers who

serve as a deputy sheriff lack the authority to arrest outside CMHA properties. As this

court has previously stated:

R.C. 2935.03(A)(1) allows a peace officer to effectuate an arrest
within his appointed territorial jurisdiction. A deputy sheriff’s territorial
 jurisdiction is limited to the county in which that deputy has been elected or
appointed to perform his duties. See In re Sulzmann, Sheriff (1932), 125
Ohio St. 594, 596, 183 N.E. 531. Therefore, since [the CMHA officers]
testified they were sworn deputy sheriffs at the time of the arrest, they had
proper authority to arrest appellant within Cuyahoga County.

State v. Moore, 8th Dist. Cuyahoga No. 92829, 2010-Ohio-3305, ¶ 38; see also State v.

Banks, 8th Dist. Cuyahoga No. 97299, 2012-Ohio-2304, ¶ 18 (recognizing that CMHA

officers who are also sworn as a sheriff’s deputy possess the authority to arrest within the

county).

{¶18} While Carson acknowledges these cases, she argues that they are

inapplicable because they dealt with a motion to suppress and not a motion to dismiss.

These cases, however, recognize the authority of CMHA officers, who also serve as a

sheriff’s deputy, to arrest outside of a CMHA property within Cuyahoga County. Given

that Carson’s motion to dismiss argument is premised on the CMHA officers’ lacking

authority, these cases directly belie such a claim.

{¶19} Further, Carson’s subject matter jurisdiction argument fails regardless of the

CMHA officers’ authority to execute the search. As explained by the Ohio Supreme

Court, “municipal courts are created by statute, R.C. 1901.01, and their subject-matter

jurisdiction is also set by statute.” State v. Mbodji, 129 Ohio St.3d 325, 2011-Ohio-2880,

951 N.E.2d 1025, ¶ 11. An Ohio municipal court “has jurisdiction over misdemeanors

occurring within its territorial jurisdiction.” Id., citing R.C. 1901.20(A)(1). The filing

of a complaint, in accordance with Crim.R. 3, invokes the jurisdiction of a municipal

court. Id. at ¶ 12.
 {¶20} Here, the offense at issue, permitting drug abuse, is a misdemeanor offense

(R.C. 2925.13(C)(2)). Because the instant case involved an alleged misdemeanor

violation occurring within Cleveland, and the complaint complied with Crim.R. 3, the

trial court had subject-matter jurisdiction over the offense. Id. at ¶ 11-12, citing R.C.

1901.02(A)(2) and (B). See also State v. Roskovich, 7th Dist. Belmont No. 04BE37,

2005-Ohio-2719, ¶ 14 (rejecting defendant’s claim that court lacked subject matter

jurisdiction, noting that “[t]he officers’ territorial jurisdiction is simply unrelated to the

trial court’s jurisdiction”).

{¶21} The third assignment of error is overruled.

Ineffective Assistance of Counsel

{¶22} In her second assignment of error, Carson argues that she was denied

effective assistance of counsel.

{¶23} To establish ineffective assistance of counsel, a defendant must show (1)

deficient performance by counsel, i.e., performance falling below an objective standard of

reasonable representation, and (2) prejudice, i.e., a reasonable probability that but for

counsel’s errors, the proceeding’s result would have been different. Strickland v.

Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.

Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the

syllabus.

{¶24} Carson first complains that the trial court’s denial of her continuance

coupled with the public defender’s rotation of defense counsel deprived her of the
effective assistance of counsel. She contends that had her trial counsel been assigned to

the case earlier, he would have timely filed a motion to dismiss or motion to suppress

based on the extra-territorial search. But as discussed above, there are no grounds to

grant either motion. The CMHA officers had the authority to execute the search in this

case. Moreover, despite the public defender’s rotation of attorneys, Carson’s counsel

was prepared for trial, as represented by her counsel to the trial court prior to the trial

commencing.

{¶25} Carson next argues that she was denied effective assistance of counsel based

on her trial counsel’s failure to subpoena the lab technician who signed the lab report that

detailed the amount and existence of cocaine. She argues that because her trial

counsel failed to do so, he effectively waived her right to confront the witness at trial.

She points to R.C. 2925.51(C), which recognizes that a laboratory report from the bureau

of criminal identification and investigation, is not considered prima facie evidence of the

content, identity, and weight of the substance “if the accused or the accused’s attorney

demands the testimony of the person signing the report, by serving the demand upon the

prosecuting attorney within seven days * * * from receipt of the report.” Otherwise,

without such a demand, the report is considered prima facie evidence under R.C.

2925.51(A) and any subsequent confrontation issue is waived. See State v. Collins, 8th

Dist. Cuyahoga No. 95422, 2011-Ohio-4808, ¶ 57.

{¶26} But Ohio courts have routinely held that a defense counsel’s decision to

forgo filing a demand for testimony of the lab technician under R.C. 2925.51 falls within
the realm of trial strategy. Id.; State v. Wright, 9th Dist. Lorain No. 05CA008675,

2006-Ohio-926, ¶ 17. And while Carson points to her trial counsel’s stated admission

that it was not his trial strategy, we find that these remarks hold no weight. Notably,

Carson’s trial counsel never moved for a continuance of the trial for the stated purpose of

calling the lab technician as a witness. Trial counsel indicated his desire to do so only

after the city had rested and after his Crim.R. 29 motion was denied. Further, defense

counsel’s strategy of questioning the officers as to the existence of “dummy stones” and

“dummy rocks,” implying that the drugs were fake, was not hampered by the absence of

the lab technician’s testimony. If anything, it appears that defense counsel’s theory was

stronger without live testimony refuting it. We simply find no evidence in the record to

support Carson’s broad claim that she was prejudiced by the absence of the lab

technician’s testimony.

{¶27} The second assignment of error is overruled.

Sufficiency of the Evidence

{¶28} In her final assignment of error, Carson argues that the city failed to present

sufficient evidence to sustain the conviction. We disagree.

{¶29} When an appellate court reviews a record upon a sufficiency challenge,

“‘the relevant inquiry is whether, after viewing the evidence in a light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of the

crime proven beyond a reasonable doubt.’” State v. Leonard, 104 Ohio St.3d 54,

2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492 (1991), paragraph two of the syllabus.

{¶30} Carson was convicted of a single count of permitting drug abuse, a violation

of R.C. 2925.13, which provides as follows:

No person who is the owner, lessee, or occupant, or who has

custody, control, or supervision, of premises or real estate * * * shall

knowingly permit the premises or real estate * * * to be used for the

commission of a felony drug abuse offense by another person.

{¶31} Carson argues that the Sixth District’s decision in Toledo v. Warnka, 6th

Dist. Lucas No. L-08-1231, 2009-Ohio-2941, is directly on point and urges this court to

follow it. In Warnka, the Sixth District reversed the defendant’s conviction of

permitting drug abuse, finding that the city failed to present sufficient evidence to allow

for a reasonable inference that defendant knew of felony cocaine abuse in her home.

Upon executing the search warrant, the police discovered several glass marijuana pipes

on the first floor and basement of the house. The police further discovered a “Test

Clear” urine test in the dining room, which, according to the officer, is used to avoid

testing positive for illegal substances. As for evidence of felony drug abuse, the police

found cocaine in the upstairs bedroom shared by the defendant’s adult daughter and the

daughter’s boyfriend. In reversing the defendant’s conviction, the court reasoned as

follows:

The only evidence of drug use discovered in the common areas of

the home were marijuana pipes and a urine cleansing tool. While this
 evidence might allow the court to infer that appellant knew there was

marijuana drug abuse occurring in her home, we find that this evidence

does not provide a reasonable basis for a rational trier of fact to infer that

appellant knew of cocaine abuse in her home. This distinction is

significant because marijuana abuse is a misdemeanor offense and, thus,

would not provide a basis for establishing that appellant permitted a felony

drug abuse.

***

In this case, however, the police officers searching appellant’s home

only discovered the evidence of felony drug abuse in the room of

appellant’s daughter, Sierra, who was an adult woman cohabitating with her

boyfriend. There was no evidence that appellant ever entered the room,

despite the fact she was in control of the premises. Moreover, absent any

evidence showing otherwise, and under the circumstances in this case, we

find that it is unreasonable to infer that appellant would have entered the

bedroom inhabited by her adult daughter and her daughter’s boyfriend, or

investigated the contents therein.

Id. at ¶ 18-19.

{¶32} We find the facts of this case distinguishable. This is not a case where the

evidence of felony drug abuse was hidden in an adult daughter’s bedroom. Here, in

addition to the obvious marijuana paraphernalia that was in plain view in the dining room,
Officer Hermensky further identified evidence of cocaine abuse in the dining room.

Specifically, Officer Hermensky identified the ceramic plate with cocaine and a

razorblade in the glass cabinet in the dining room, as well as a digital scale with cocaine

residue on the mantel. According to Officer Hermensky, these items were in plain view.

And while the glass door may have slightly concealed the ceramic plate with cocaine,

the digital scale was discovered on top of the mantel over the fireplace — out in the open.

The evidence further revealed that Carson admitted to smoking marijuana earlier in the

day before the officers’ arrival. Given that the evidence of cocaine was discovered in a

common room of the house nearby the marijuana and marijuana-related paraphernalia, we

find that a reasonable inference could be drawn that Carson had knowledge of the cocaine

abuse.

{¶33} The final assignment of error is overruled.

{¶34} Judgment affirmed.

It is ordered that appellee recover of appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the Cleveland

Municipal Court to carry this judgment into execution. The defendant’s conviction

having been affirmed, any bail pending appeal is terminated. Case remanded to the trial

court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.
MARY J. BOYLE, ADMINISTRATIVE JUDGE

SEAN C. GALLAGHER, J., and
EILEEN T. GALLAGHER, J., CONCUR