State v. Miller

[Cite as State v. Miller, 2011-Ohio-2388.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 94662

STATE OF OHIO
PLAINTIFF-APPELLEE

vs.

HOWARD MILLER

DEFENDANT-APPELLANT

JUDGMENT:
AFFIRMED AND REMANDED

Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-526850

BEFORE: Kilbane, A.J., Stewart, J., and E. Gallagher, J.

RELEASED AND JOURNALIZED: May 19, 2011
ATTORNEY FOR APPELLANT

Richard H. Drucker
700 West St. Clair Avenue
The Hoyt Block, Suite 214
Cleveland, Ohio 44113-1274

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
Luke Mahoney
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113

MARY EILEEN KILBANE, A.J.:

{¶ 1} Defendant-appellant, Howard Miller, appeals from his convictions for drug

trafficking and drug possession. For the reasons set forth below, we affirm the convictions,

but because defendant was convicted of crimes that are allied offenses of similar import, we

vacate the sentence and remand the case to the trial court for resentencing under R.C. 2941.25.

{¶ 2} On July 29, 2009, defendant was indicted pursuant to a four-count indictment in

connection with the controlled delivery of a package containing marijuana. In Count 1,

defendant was charged with trafficking in more than 200 grams but less than 1000 grams of
marijuana, with specifications for the forfeiture of a cell phone and a gun, and a one-year

firearm specification. In Count 2, defendant was charged with possession of more than 200

grams but less than 1000 grams of marijuana. In Count 3, defendant was charged with

possession of criminal tools, and in Count 4, defendant was charged with carrying a concealed

weapon. Counts 2 through 4 additionally set forth specifications for the forfeiture of a cell

phone and a Taurus 9mm handgun.

{¶ 3} Defendant pled not guilty and the matter proceeded to a jury trial on November

19, 2009.

{¶ 4} For its case, the State presented the testimony of Cleveland Police narcotics

Sergeant Larry Hughes, Detectives Patrick Andrejcak, Neil Hutchinson, Michael Budny, Ralph

Valentino, and Franklin Lake.

{¶ 5} Detective Andrejcak testified that he is in the drug interdiction unit with K-9

patrol and does drug investigations using a narcotics dog. Part of this unit’s work involves

investigations of packages delivered by FedEx that have indicators of drug trafficking.

According to Detective Andrejcak, indicators include packages that are heavily taped,

packages originating from high drug areas, and phone numbers that do not correspond to the

areas where the sender or recipient lives. Once a package is deemed to have such indicators,

the officers then determine whether the drug dog, which has been trained to detect the odor of
illegal narcotics, will “alert” to the package. If the dog alerts, then the officers obtain a

search warrant to open the package.

{¶ 6} In this instance, Detective Andrejcak executed an affidavit in support of a

search warrant on July 21, 2009. He averred that the dog alerted to the package, that the area

from which it was mailed is a “major source area for mailed controlled substances to Northern

Ohio,” that it was sent to “Barbara Jones of 2952 East 123rd [in] Cleveland” from “Charles

Finley,” and that “people receiving parcels containing controlled substances will often use

fictitious names or addresses for the receipt of the parcel[.]”

{¶ 7} A judge reviewed the affidavit and on July 21, 2009, granted a warrant to

search the package and the recipient’s address. Detective Andrejcak opened the box and

determined that it contained a three-pound bundle of marijuana that was heavily wrapped in

plastic wrap. The detective then rewrapped the package and arranged for a controlled

delivery to be made by Detective Hutchinson.

{¶ 8} Detective Hutchinson testified that he also works in the narcotics interdiction

unit, and he assisted Detective Andrejcak in examining the package, submitting it to the drug

dog, and obtaining the search warrant. According to Detective Hutchinson, the officers

contacted the Columbus Police Department and learned that a “Barbara Jones” did not reside

at 2952 East 123rd Street and that the return address listed by “Charles Finley,” the sender, is
actually not a residence but a Mailbox Plus location. In addition, the sender had listed

Jones’s area code as 310, which is not assigned to Cleveland area telephone numbers.

{¶ 9} Detective Hutchinson further established that after the officers obtained the

warrant, they opened the package. A field evidence analysis revealed that it contained

marijuana, and the officers resealed the bag.
1

{¶ 10} Detective Hutchinson wore a FedEx uniform to complete the controlled delivery

and drove to the residence in a FedEx van. Other officers and members of the SWAT team

were also in place to monitor the delivery. The package was listed as a “knock and drop,”

meaning that the recipient was not required to sign for it. Detective Hutchinson testified that

he walked to the door with the box and a clipboard and began to knock loudly. He heard

people inside the dwelling and continued to knock, but no one answered the door. He left the

package just to the right of the front door of the premises and, as he walked away, he saw

someone grab the package and bring it inside. Detective Hutchinson drove away and alerted

the other officers that the package had been delivered.

{¶ 11} Defendant and his wife exited the dwelling and walked toward a vehicle. He

was carrying the box and placed it in his wife’s car. The officers approached, arrested

defendant, but did not search the residence.

1Laboratory analysis later indicated that it was 855 grams of marijuana.
 {¶ 12} On cross-examination, Detective Hutchinson testified that the dwelling is a

two-family home. He stated that he went to the correct unit, a dwelling that had previously

been occupied by defendant’s mother-in-law, but he admitted that he did not attempt to

ascertain whether the package was intended for a prior resident, Rico Hunter. Detective

Hutchinson further testified that after the officers arrested defendant, they learned that he has a

permit to carry a handgun, which surprised Detective Hutchinson because defendant stated that

he was not a United States citizen. Detective Hutchinson stated that he did not recall that

defendant had a “distinctive accent.”

{¶ 13} Detectives Budny and Valentino testified that they arrested defendant after he

and his wife got into a vehicle. At this time, defendant had a loaded 9mm handgun, a pouch

containing an additional magazine of ammunition, two cell phones, and a small bit of

marijuana. Test firing subsequently revealed that the weapon was operable. No charges

were issued in connection with the marijuana recovered from defendant’s pocket.

{¶ 14} Detective Hughes testified that defendant asked why he was being arrested, and

the officers replied that it was due to his possession of the box. At this time, defendant’s

wife indicated that her mother had resided at the unit but that the home was now in

foreclosure.

{¶ 15} Detective Budny stated on cross-examination that defendant had an “obvious”

accent.
 {¶ 16} Detective Lake testified that he conducted surveillance during the controlled

delivery. He observed only arms reaching from the door to pick up the box from the front

stoop, but he did not see this individual’s face. Minutes later, defendant and his wife exited

the home, and the defendant was carrying the box. He further stated that although the

structure is a two-family dwelling, it appeared to be abandoned. He next testified that the

alleged recipient, one “Barbara Jones,” was not associated with the dwelling. Moreover,

because this fictitious name was listed as the recipient, he did not believe it was necessary to

determine past occupants of the home.

{¶ 17} Defendant elected to present evidence and offered the testimony of his wife,

Dena Miller (Dena). Dena testified that her mother had lived on the first floor of the

two-apartment dwelling, but the building was now in foreclosure. She and defendant went

there to help her mother pack and to check the mail.

{¶ 18} She stated that she could not come to the door when the package was being

delivered. When she went to the door a few moments later, she observed that the box was

addressed to someone else, so she had her husband put it in the car in order to return it to

FedEx. The police arrested her as she began to dial the telephone number to FedEx.

{¶ 19} Dena additionally testified that an individual named Rico Hunter had lived in

the upstairs apartment, and after Hunter applied for a job with her employer, she learned that

he has an extensive criminal record, including convictions for drug trafficking and drug
possession. Dena further testified that from time to time, Hunter still receives mail at the

apartment.

{¶ 20} She stated that both she and defendant have permits to carry concealed

handguns. She further stated that her husband has a Jamaican accent and believes that the

police suspected him of drug trafficking for that reason.

{¶ 21} At the close of all of the evidence, the trial court entered a Crim.R. 29 judgment

of acquittal as to Count 4, the charge of carrying a concealed weapon. The jury subsequently

found defendant guilty of trafficking and the firearm specification, as alleged in Count 1, but

not guilty of the forfeiture specifications for this count. The jury also found defendant guilty

of the charge of possession and the forfeiture specification as set forth in Count 2, but the jury

acquitted defendant of the charge of possession of criminal tools as alleged in Count 3. The

trial court sentenced defendant to a total of 18 months of imprisonment for trafficking and a

concurrent term of six months for drug possession, plus postrelease control of up to three

years.

{¶ 22} Defendant now appeals and assigns four errors for our review.

{¶ 23} Defendant’s first assignment of error states:

“The search warrant issued by [the trial court] was issued unlawfully because

the law enforcement officer and State of Ohio could not make a prima facie

showing of probable cause for a search based on the narcotic[s] detection
 dog’s alert because the affidavit failed to show reliability demonstrating that

the dog has been properly trained and certified, and, further, it was plain error

to admit evidence obtained from the search warrant in this criminal

litigation.”

{¶ 24} The Fourth Amendment provides that “[t]he right of the people to be secure in

their person, houses, papers, and effects, against unreasonable searches and seizures, shall not

be violated * * *.” The Fourth Amendment is enforceable against the states through the Due

Process Clause of the Fourteenth Amendment. Mapp v. Ohio (1961), 367 U.S. 643, 655, 81

S.Ct. 1684, 6 L.Ed.2d 1081.

{¶ 25} “Fourth Amendment rights are personal rights which, like some other

constitutional rights, may not be vicariously asserted.” Rakas v. Illinois (1978), 439 U.S.

128, 133-134, 99 S.Ct. 421, 58 L.Ed.2d 387, quoting Alderman v. United States (1969), 394

U.S. 165, 174, 89 S.Ct. 961, 22 L.Ed.2d 176. As such, the party seeking suppression of

evidence has the burden of establishing that his own Fourth Amendment rights were violated

by the challenged search or seizure. Id. If the defendant cannot satisfy this burden, then he

or she cannot invoke the exclusionary rule. State v. Conner, Cuyahoga App. No. 84073,

2005-Ohio-1971.

{¶ 26} Thus, while closed packages are effects in which persons have legitimate

expectations of privacy and require a warrant to search, United States v. Jacobsen (1984), 466
U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85, a defendant may not challenge the search of a parcel

that he claims is not his. Conner; State v. Carter, Portage App. No. 2003-P-0007,

2004-Ohio-1181 (person who denies ownership of an item does not possess an expectation of

privacy in the item to which he or she disclaimed ownership so he does not have standing to

challenge the search of that item).

{¶ 27} In this matter, the search warrant was issued for the parcel that “bears the

recipient name ‘Barbara Jones’ and a recipient address of 2952 East 123rd Street, Cleveland,

Ohio 44120, and bearing a return name, phone number and address of: ‘Charles Finley,’ 3717

S. Labrea Ave. #106, Los Angeles, California.” At the time the search warrant was executed,

defendant had no legitimate expectation of privacy in the parcel, and defendant could not

establish that the execution of the search warrant violated his Fourth Amendment rights.

Accord State v. Norris, Morgan App. No. CA04008, 2005-Ohio-3469 (defendant lacked

standing to challenge search warrant for a residence where he did not reside).

{¶ 28} In any event, even assuming that defendant had a legitimate expectation of

privacy in the parcel based upon his subsequent possession of it, we conclude that the good

faith exception precluded the application of the exclusionary rule. Although it is well settled

that a positive reaction by a properly trained narcotics dog can establish probable cause for the

presence of controlled substances, the affidavit in support of a search warrant must establish

the training and reliability of the drug-detecting dog. State v. Nguyen, 157 Ohio App.3d 482,
2004-Ohio-2879, 811 N.E.2d 1180. However, the exclusionary rule should not be used to

exclude evidence “obtained by officers acting in objectively reasonable reliance on a search

warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by

probable cause.” United States v. Leon (1984), 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d

677.

{¶ 29} In this matter, we conclude that it was “objectively reasonable” for the officers

in this case to have relied on the search warrant issued to them by the magistrate. See State

v. Wilkins (June 19, 1998), Montgomery App. No. 16817.

{¶ 30} The first assignment of error is without merit.

{¶ 31} Defendant’s second assignment of error states:

“Defendant-appellant was denied his due process rights to a fair trial by the
assistant county prosecutor’s comments in closing argument about the failure
of defendant-appellant to testify.”

{¶ 32} Generally, prosecutors are entitled to considerable latitude in opening and

closing arguments. State v. Ballew, 76 Ohio St.3d 244, 1996-Ohio-81, 667 N.E.2d 369. In

evaluating a claim that the prosecuting attorney has committed misconduct in connection with

comments made during closing argument, the test is whether the remarks were improper and,

if so, whether they prejudicially affected substantial rights of the defendant. State v. Smith

(1984), 14 Ohio St.3d 13, 470 N.E.2d 883.
 {¶ 33} The State is permitted to comment upon the defendant’s failure to offer

evidence in support of his case, State v. Collins, 89 Ohio St.3d 524, 527-28, 2000-Ohio-231,

733 N.E.2d 1118, but it is improper for a prosecutor to comment on the defendant’s failure to

testify. State v. Twyford, 94 Ohio St.3d 340, 355, 2002-Ohio-894, 763 N.E.2d 122. The

question is whether the language used was manifestly intended or was of such character that

the jury would naturally and necessarily take it to be a comment on the failure of the accused

to testify. State v. Webb, 70 Ohio St.3d 325, 328-29, 1994-Ohio-425, 638 N.E.2d 1023.

{¶ 34} In this matter, the record indicates that defendant’s trial counsel informed the

jury during his opening statement that the defendant has a Jamaican accent. Later, in his

closing argument, defendant’s attorney made six references to defendant having a Jamaican

accent. He then stated:

“You hear the accent, you see the gun and you end the case right there.

***

Now there was a lot of talk, a lot of questions about accent because he clearly
has one, as some of the officers remembered vividly. While others did not.
You know, this accent stuff needs to end because at some point everybody
had accents. I know my grandparents did. Maybe your parents or
grandparents did. He sure does, but we have to get over this accent thing.”

{¶ 35} Thereafter, the prosecuting attorney in his final closing argument stated:

“Constantly referring to the accent. Who on this jury heard the defendant’s
accent? Not a single one of you. He’s constantly referring to the accent.
He’s trying to distract you from what’s going on here. This case has nothing
to do with his accent or race. * * * And remember defense counsel’s
 opening statement, as well as his constant referral to — his constant reference
to the defendant’s accent? In his opening statement, I think we were all
under the impression that we were going to hear that accent. Ask yourself
why you didn’t hear that accent.”

{¶ 36} Our review of the record indicates that the comments were manifestly intended

to rebut the charge of the defense that the officers arrested defendant based upon his Jamaican

accent. However, we conclude that they were of such character that the jury would naturally

and necessarily take them to be a comment on the failure of the accused to testify.

Accordingly, the remarks were improper.

{¶ 37} Turning to the issue of whether the remarks prejudicially affected substantial

rights of the defendant, we conclude, after reviewing the record as a whole, that they did not.

We find it clear beyond a reasonable doubt that, absent the prosecutor’s comments, the jury

would have found the defendant guilty. Smith; State v. Zimmerman (1985), 18 Ohio St.3d

43, 479 N.E.2d 862, syllabus. The conviction must be affirmed if it is concluded, based on

the whole record, that the prosecutor’s improper comments were harmless beyond any

reasonable doubt.

{¶ 38} This assignment of error is without merit.

{¶ 39} Defendant’s third assignment of error states:

“The defendant-appellant was denied his due process rights to a fair trial by
the ineffective assistance of his trial counsel.”
{¶ 40} Within this assignment of error, defendant maintains that his trial counsel was

ineffective for failing to move for suppression of the evidence obtained in this matter and
failing to object to hearsay evidence concerning the name of the resident of 2952 East 123rd

Street in Cleveland.

{¶ 41} In order to establish a claim of ineffective assistance of trial counsel, it is clear

that a defendant must make a two-part showing:

“First, the defendant must show that counsel’s performance was deficient.
This requires showing that counsel made errors so serious that counsel was
not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient performance
prejudiced the defense. This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose result is
reliable. Unless a defendant makes both showings, it cannot be said that the
conviction * * * resulted from a breakdown in the adversary process that
renders the result unreliable.” Strickland v. Washington (1986), 466 U.S.
668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674. Accord State v. Bradley (1989),
42 Ohio St.3d 136, 538 N.E.2d 373, paragraph two of the syllabus.

{¶ 42} The Strickland court also cautioned courts examining the issue that:

“Judicial scrutiny of counsel’s performance must be highly deferential. It is

all too tempting for a defendant to second-guess counsel’s assistance after

conviction or adverse sentence, and it is all too easy for a court, examining

counsel’s defense after it has proved unsuccessful, to conclude that a

particular act or omission of counsel was unreasonable.” Strickland at 689.

{¶ 43} An attorney is presumed to be competent. State v. Smith (1985), 17 Ohio

St.3d 98, 100, 477 N.E.2d 1128. An appellant bears the burden of proving his claim of

ineffective assistance of counsel. Id.
 {¶ 44} Moreover, counsel does not perform ineffectively by failing to file futile

motions, and is not ineffective for failing to file a motion to suppress evidence when there is

no reasonable probability that the motion would be granted. See State v. Martin (1983), 20

Ohio App.3d 172, 174, 485 N.E.2d 717. Where there exist no grounds for the suppression of

evidence, defense counsel has no duty to pursue a motion to suppress evidence. State v.

Gibson (1980), 69 Ohio App.2d 91, 430 N.E.2d 91; State v. Means (June 30, 1994), Cuyahoga

App. No. 65744. Where the record is devoid of facts to indicate that a motion to suppress

would have been granted, a claim for ineffective assistance of counsel on this basis must fail.

Id.; State v. Woolum (1976), 47 Ohio App.2d 313, 354 N.E.2d 712.

{¶ 45} In this matter, for the reasons set forth in our discussion of the first assignment

of error, we conclude that the police did not violate defendant’s Fourth Amendment rights in

searching the package mailed to Barbara Jones. Alternatively, we have concluded that the

officers acted in good faith reliance upon the search warrant issued herein. Therefore, we

conclude that the record is devoid of facts that indicate that a motion to suppress would have

been granted in this matter. There is no reasonable probability that the motion would be

granted, it would have been a futile act for defendant’s trial counsel to file a motion to

suppress the results of the search of that package, and trial counsel did not err in failing to do

so. See Martin.
 {¶ 46} Moreover, defendant’s trial counsel’s theory of the case was that after defendant

and his wife (Dena) realized that the package was incorrectly left at his mother-in-law’s

former apartment, they placed it in their car solely to return it to FedEx, and they were arrested

as Dena was calling the courier. The defense also presented evidence that Rico Hunter, a

former upstairs tenant who has an extensive criminal record, including convictions for drug

trafficking and drug possession, still receives mail at the apartment. The failure to file a

motion to suppress could have therefore been a reasonable tactical decision or trial strategy.

{¶ 47} With regard to the introduction of hearsay evidence that the officers learned

from the Columbus Police Department’s internet search that Barbara Jones did not reside at

2952 East 123rd Street, we find no prejudicial error as defendant presented evidence that Jones

did not live there, that the package was misdelivered, and that he and his wife were returning it

to FedEx.

{¶ 48} The third assignment of error is therefore without merit.

{¶ 49} Defendant’s fourth assignment of error states:

“Appellant’s conviction is against the manifest weight of the evidence.”

{¶ 50} In determining whether a conviction is against the manifest

weight of the evidence, the appellate court sits as a “thirteenth juror” and

disagrees with the factfinder’s resolution of the conflicting testimony. State

v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 54, citing

Tibbs v. Florida (1982), 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652. The
reviewing court must examine the entire record, weigh the evidence and all

reasonable inferences, consider the credibility of the witnesses, and determine

whether the jury “clearly lost its way and created such a manifest miscarriage

of justice that the conviction must be reversed and a new trial ordered.” Id.,

quoting Martin at 175.

{¶ 51} The appellate court may not merely substitute its view for that of

the jury, and reversal on manifest weight grounds is reserved for “the

exceptional case in which the evidence weighs heavily against the conviction.”

Id., quoting Martin.

{¶ 52} In this matter, after examining the entire record, weighing the

evidence and all reasonable inferences, we are unable to conclude that the

jury clearly lost its way and created such a manifest miscarriage of justice in

convicting defendant of the offenses. The evidence demonstrated that a

heavily taped package was mailed from a Mailbox Plus to “Barbara Jones,” at 2952 East

123rd Street, and that Barbara Jones did not reside at that location. The evidence further

demonstrated that defendant and his wife were in the structure that is in foreclosure and

appears to be abandoned. They did not answer the door to accept delivery of the package in

person, but they immediately took it from the front porch area as the individual attempting to

deliver it had left. A few minutes later, they then were in possession of the package as they

left the dwelling. This evidence strongly indicates that they were waiting for the fictitiously
addressed package at the abandoned home. The explanation offered by the defense that they

were assisting defendant’s mother-in-law with packing her belongings was belied by the fact

that the package of marijuana was the only thing they removed from the residence.

Similarly, defendant’s wife’s claim that they were simply returning the package to FedEx was

belied by the fact that they left immediately after receiving the package and made no attempt

to flag down the individual who had delivered it.

{¶ 53} In this connection, we find this matter to be distinguishable from this court’s

decision in State v. Blackshear, Cuyahoga App. No. 95424, 2011-Ohio-1806. In Blackshear,

the defendant was convicted of drug trafficking and drug possession stemming from the

controlled delivery of a package containing 3669.2 grams of marijuana to a house owned by

defendant’s father. At the time of the controlled delivery, defendant’s father was asleep

upstairs, and the defendant, who also lived there, was playing video games with a friend.

The detective who made the delivery testified that he asked if defendant was waiting for a

package, and defendant stated that he was. Defendant accepted the package and signed his

name to the log sheet, which was attached to a clipboard that was sitting on top of the box.

Defendant then took the package. The detective further testified that he usually asks whether

the person signing for the package is the recipient. According to defendant, however, the

undercover detective tilted the box and clipboard in front of defendant for his signature and

said nothing. Because it was very cold outside, defendant quickly signed the paper on the
clipboard, and the detective handed him the package. Defendant stated that he was not

expecting a package, and he put the box in front of the cocktail table near the door, where he

and his father keep the mail. He stated that he did not look at the label and simply assumed

the package was for his father, who regularly has memorabilia and diabetes medicine delivered

to the house. When police executed a search warrant for the premises approximately two

hours later, defendant and another male were in the living room at the time playing video

games. The package was unopened.

{¶ 54} The trial court instructed the jury regarding “deliberate ignorance” or “willful

blindness” as to whether defendant had reason to believe that the package contained

contraband. Defendant was subsequently convicted of drug trafficking and drug possession.

This court found insufficient evidence that defendant had actual knowledge of the drugs or

closed his eyes to criminal activity and reversed defendant’s convictions. This court stated:

“Defendant was accustomed to signing for packages for his father, who often
received boxes in the mail. On the day in question, defendant signed for a
package without looking at the shipping label. Defendant did not open the
package because he thought it was for his father. Instead, he placed the box
where he usually places his father’s mail and returned to playing a video
game for the next two hours, until the police arrived to search his house.

Accordingly, there is insufficient evidence in the record that defendant had
actual knowledge of the drugs or closed his eyes to criminal activity.”

{¶ 55} In the instant matter, however, the record indicates that defendant and his wife

went to the address listed on the package, which was an abandoned dwelling. They refused
to answer the door for the delivery person, then, after the package had been left by the door,

they immediately took the package and left the premises. On this record, a jury could

reasonably conclude that defendant knew that the package contained contraband, that he and

his wife went to the residence because they were expecting the package, and they left the

residence after obtaining the package.

{¶ 56} The fourth assignment of error is without merit.

{¶ 57} We note, however, that in State v. Cabrales, 118 Ohio St.3d 54,

2008-Ohio-1625, 886 N.E.2d 181, paragraph two of the syllabus, the Ohio Supreme Court

held that “[t]rafficking in a controlled substance under R.C. 2925.03(A)(2) and possession of

that same controlled substance under R.C. 2925.11(A) are allied offenses of similar import

because commission of the first offense necessarily results in commission of the second.”

Therefore, we note plain error in connection with defendant’s conviction for both trafficking

in marijuana under R.C. 2925.03(A)(2) and possession of that same controlled substance under

R.C. 2925.11(A).

{¶ 58} This issue is not rendered moot by the trial court’s imposition of concurrent

terms for each conviction. State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922

N.E.2d 923. Accordingly, defendant’s convictions are affirmed, his sentence is vacated, and

we remand the case to the trial court for resentencing, at which time the State will elect which
of the allied offenses it wishes to pursue at sentencing for which the defendant should be

punished. See State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182.

It is ordered that appellant and appellee share the 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

common pleas court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending appeal is terminated.

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

Rule 27 of the Rules of Appellate Procedure.

MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE

MELODY J. STEWART, J., CONCURS IN JUDGMENT ONLY (SEE
SEPARATE CONCURRING OPINION)
EILEEN A. GALLAGHER, J., DISSENTS (SEE SEPARATE
DISSENTING OPINION)

MELODY J. STEWART, J., CONCURRING IN JUDGMENT ONLY:

{¶ 59} I concur with the judgment affirming Miller’s conviction, but

write separately because I believe the legal standard employed in State v.

Nguyen, 157 Ohio App.3d 482, 2004-Ohio-2879, 811 N.E.2d 1180, for
assessing the sufficiency of a warrant affidavit based on the results of a

canine search is unduly restrictive. I also believe that the state’s comment

on Miller’s failure to offer proof of his accent was just within permissible

bounds and did not constitute a comment on his failure to testify.

I

{¶ 60} “In determining the sufficiency of probable cause in an affidavit

submitted in support of a search warrant, ‘[t]he task of the issuing magistrate

is simply to make a practical, common-sense decision whether, given all the

circumstances set forth in the affidavit before him, including the veracity and

basis of knowledge of persons supplying hearsay information, there is a fair

probability that contraband or evidence of a crime will be found in a

particular place.’ (Illinois v. Gates [1983], 462 U.S. 213, 238-239, 103 S.Ct.

2317, 2332, 76 L.Ed.2d 527 followed.)” State v. George (1989), 45 Ohio St.3d

325, 544 N.E.2d 640, N.E.2d 640, paragraph one of the syllabus.

{¶ 61} The rule set forth in Nguyen, that the affiant must first set forth

a drug-sniffing dog’s training and reliability is overbroad. The federal courts

have no requirement that the handler of a drug-sniffing dog set forth the

dog’s qualifications as a predicate to the issuance of a warrant based on the

dog alerting to the presence of drugs. “A reasonable inference to be drawn

from the designation ‘k-nine handler’ is that both the handler and dog has

undergone training; indeed, a handler must be taught how to recognize the
dog’s alerting behavior.” United States v. Randolph (C.A.6, 1999), 173 F.3d

857, fn.3. See, also, United States v. Venema (C.A.10, 1977) , 563 F.2d 1003,

1007 (affidavit in support of a search warrant need not describe the

drug-detecting dog’s educational background and general qualifications with

specificity to establish probable cause); United States v. Berry (C.A.6, 1996),

90 F. 3d 148, 153 (search warrant application need not describe the

particulars of a dog’s training, reference to dog as a “drug sniffing or drug

detecting dog” sufficient to support probable cause); United States v. Allen

(C.A.4, 1998), 159 F.3d 832, 839-840 (rejecting standard that “dog alert

testimony must satisfy the requirements for expert scientific testimony * *

*.”); United States v. Sundby (C.A.8, 1999), 186 F.3d 873, 876 (“To establish a

dog’s reliability, the affidavit need only state the dog has been trained and

certified to detect drugs.”)

{¶ 62} I would employ the federal approach and find under the

“practical, common-sense” approach to issuing warrants, that an affiant who

states qualifications for K-9 handling, working in tandem with a K-9 dog,

shows sufficient initial qualifications from which a magistrate could find that

a drug alert shows a fair probability of criminal activity to justify issuance of

a warrant. Admittedly, the affidavit offered by the K-9 handler in this case

is bare bones — it details the handler’s qualifications and states that “K-9

Daisy alerted to a suspect package indicating to your Affiant that it contained
illegal narcotics.” While the affidavit does not describe “Daisy as a

drug-sniffing dog, the designation of a dog as a “K-9” could only mean that the

dog had been trained and certified in drug detection. Indeed, this is the only

reasonable conclusion in light of the handler’s description of himself as a

canine handler. The dog’s use for drug detection under the circumstances

would serve no other rational purpose. Applying the practical,

common-sense approach to review the sufficiency of search warrants, I believe

that the affidavit supplied the issuing judge with enough information to

justify the warrant. If Miller wished to object to or challenge the dog’s

certification or credentials, he could have appropriately done so. Having

failed to do so, he cannot be heard to argue that the K-9 was too unqualified

to justify the issuance of a warrant.

II

{¶ 63} As to the issue of whether the state improperly commented on

Miller’s failure to testify, I believe the state’s comment was just barely

permissible. As the lead opinion notes, Miller injected the issue of his accent

into the case. This was unnecessary because the evidence showed that the

police had made the decision to arrest him before they ever heard him speak.

The police employed an elaborate take-down, using an undercover officer to

deliver the package and having several officers move in for the arrest after

seeing Miller leave the house. The evidence fairly showed that the police
were going to arrest the bearer of the package regardless of whether the

bearer’s dialect was the same as the arresting officers, spoke with an accent

(foreign or domestic), or was unable to speak at all. So Miller’s accent was

immaterial to his arrest.

{¶ 64} Miller argued that he was in possession of the package only

because it had been misdelivered and he was returning it Federal Express.

He wanted the jury to find that the police rejected this excuse post-arrest

because they unfairly equated someone of Jamaican descent with marijuana

trafficking. This argument was unlikely to prevail with the jury — his

possession of a package containing nearly two pounds of marijuana that had

just been delivered and his possession of a firearm (even if properly licensed)

were more realistically the motivating factor in causing the police to reject his

explanation than was his accent. The police could also have thought that it

was the rare person who, minutes after discovering that a package was

misdelivered to one’s house, would personally return the package to the

delivery service rather than call the delivery service to notify it of the mistake

and arrange to have the package picked up. The state’s closing argument

was thus a reference to Miller’s unnecessary attempt to inject his accent as an

issue in the case.

{¶ 65} Troubling, however, is the reference made by the state: “And

remember defense counsel’s opening statement, as well as his constant
referral to — his constant reference to the defendant’s accent? In his

opening statement, I think we were all under the impression that we were

going to hear that accent. Ask yourself why you didn’t hear that accent.”

This reference is a close call. Defense counsel did tell the jury during

opening statement that “my client is of Jamaican descent. He has an accent.

A strong Jamaican accent.” He later told the jury “we have to be careful

when we hear his accent and we know about other things that happened in

Cleveland or around this country.” (Emphasis added.) These statements

implied that defendant would be testifying, for the statement “when we hear

his accent” would serve no other purpose because there were no audio

recordings of Miller’s voice or other means of “hearing” the accent without his

testifying.

{¶ 66} As the lead opinion notes, the state is allowed to comment on a

defendant’s failure to present evidence that is promised to be forthcoming.

See State v. Handwork, 11th Dist. No. 2002-P-0134, 2004-Ohio-6181, ¶39.

By telling the jury that it would “hear his accent,” Miller left himself open to

fair comment on his failure to deliver a promised defense, thus arguably

inviting any error. See State v. Watson, 1st Dist. No. C-010691,

2002-Ohio-4046, ¶28.

{¶ 67} The state should have chosen its words more carefully — even the

court recognized as much when it said it was “troubled by the comments.
They are skirting and inappropriate.” But in the end, we must determine

whether the state’s remarks were of such a character that the jury would

“naturally and necessarily take it to be a comment on the failure of the

accused to testify.” State v. Webb, 70 Ohio St.3d 325, 328-329,

1994-Ohio-425, 638 N.E.2d 1023. With Miller having strongly implied to the

jury that he would be testifying and then continuing to make an issue out of

his accent in his closing argument despite not delivering the promised

evidence, the state’s rejoinder stayed just within the bounds of what could be

considered appropriate.

EILEEN A. GALLAGHER, J., DISSENTING:

{¶ 68} For the following reasons, I respectfully dissent from the majority

opinion. Because I find the search warrant issued on July 21, 2009 for the

suspected package to be defective and that the state committed prosecutorial

misconduct by improperly referencing Miller’s failure to testify, I would

vacate the convictions and imposed sentence and remand for proceedings

consistent with this dissent.

{¶ 69} As pointed out by the state and acknowledged by Miller, Miller

failed to move to suppress the evidence recovered from the search of the

suspected package at the FedEx package terminal. Nonetheless, Miller
argues this court should acknowledge that plain error occurred. Specifically,

Miller argues that the affidavit accompanying the application for the search

warrant did not set forth the training and reliability of the drug-detection dog

and, therefore, the affidavit could not support the probable cause needed for a

search of the seized package. I agree with Miller’s argument.

{¶ 70} Crim.R. 52(B) is known as the “plain error rule.” In State v.

Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804, the Ohio Supreme Court, in

interpreting Crim.R. 52(B) stated “[t]he power afforded to notice plain error *

* * is one which courts exercise only in exceptional circumstances, and

exercise cautiously even then.” Long at 94. Quoting the United States

Court of Appeals for the Sixth Circuit in United States v. Rudinsky (C.A.6,

1971), 439 F.2d 1074, 1076, Long further explains “[t]he plain error rule is to

be invoked only in exceptional circumstances to avoid a miscarriage of

justice.” Long at 94. In order to establish plain error, appellant must show

that, but for the error, the outcome of the trial would have been different.

State v. Ruppart, 187 Ohio App.3d 192, 2010-Ohio-1574, 931 N.E.2d 627.

{¶ 71} As noted by the majority opinion, it is well settled under Ohio law

that an alert from a properly trained drug-detection dog provides probable

cause for the presence of controlled substances. Nguyen; State v. Lopez, 166

Ohio App.3d 337, 2006-Ohio-2091, 850 N.E.2d 781. However, before a

finding of probable cause can be made, the state must establish the
drug-detection dog’s reliability. Nguyen; Lopez. Ohio courts have held that

the state can establish reliability by presenting evidence of the dog’s training

and certification that can be testimonial or documentary. Lopez. “Once the

state establishes reliability, the defendant can attack the dog’s ‘credibility’ by

evidence relating to training procedures, certification standards, and

real-world reliability.” Id.

{¶ 72} In the present case, Detective Andrejcak’s affidavit in support of

the search warrant failed to set forth facts concerning the training and

certification of K-9 Daisy and any training and certification between

Detective Andrejcak and Daisy. Accordingly, the state failed to establish the

reliability necessary to support a finding of probable cause.

{¶ 73} Based on the foregoing, this search warrant never should have

been issued. The crux of the state’s application for a search warrant was

Daisy’s positive alert on the suspected package. However, the state failed to

present any evidence of Daisy’s reliability in performing the drug sniff. As

such, the search warrant should not have been issued as there did not exist

probable cause to support the search. Moreover, but for the issuance of this

warrant, police officers never would have encountered Miller or his wife on

July 29, 2009, and this trial never would have happened. Thus, I find that

plain error occurred in this case.
 {¶ 74} The majority opinion, while not acknowledging the defectiveness

of the instant warrant, states that the good faith exception to the warrant

requirement precludes the application of the Fourth Amendment’s

exclusionary rule. While I agree with this principle of law, I disagree that

good faith existed in this case.

{¶ 75} Police officers are trained on the issuance of warrants and the

requirements for an application for a search warrant. It is not unreasonable,

therefore, to assume that officers know that evidence of a drug-detection dog’s

reliability must be included if a positive sniff is the basis for a claim of

probable cause. Equally, I find it unreasonable for any officer to rely on a

warrant issued by a neutral and detached magistrate that fails to set forth

the reliability upon which an argument for probable cause rests.

Specifically, Detective Andrejcak prepared the affidavit and failed to set forth

Daisy’s reliability, a failure of which he should have been aware.

Accordingly, I find that the good faith exception to the warrant requirement

does not apply in the instant case.

{¶ 76} Lastly, the majority opinion argues that Miller does not have

standing to challenge the state’s search because he disclaimed ownership of

the suspected package. I find this argument to be inapplicable to the instant

case. Based on the evidence before the court, it is my contention that the

trial court never should have issued the warrant and that it was plain error
to do so. Miller never challenged the legality of the search and, therefore,

standing is not at issue in this case.

{¶ 77} I would therefore, sustain Miller’s first assignment of error.

{¶ 78} I also disagree with the majority opinion’s analysis of Miller’s

second assignment of error. The majority correctly cites the relevant

statements made by the prosecutor during his closing argument, and

ultimately concluded that although the statements were improper, they did

not prejudice Miller’s substantial rights.

{¶ 79} The framers of the Constitution recognized long ago the sacred

right against self-incrimination and courts must be vigilant in preserving it.

State v. Beebe, 172 Ohio App.3d 512, 2007-Ohio-3746, 875 N.E.2d 985. The

most cherished rights of those who are subject to American jurisprudence and

the criminal justice system are provided in the amendments to the United

States Constitution. One of those rights provides that no person can be

compelled to testify against themselves and case law guarantees that if a

defendant does choose not to testify, no comment can be made on his silence.

Griffin v. California (1965), 380 U.S. 609, 85 S.Ct 1229, 14 L.Ed.2d 106; State

v. Mapes (Oct. 25, 1984), Cuyahoga App. No. 47191; State v. Heller, Franklin

App. No. 01AP-648, 2002-Ohio-879.

{¶ 80} In my view, the comments by the prosecutor in this instance can

be read as an impermissible inference of guilt regarding Miller’s decision not
to testify. Beebe. The prosecutor continuously referred to Miller’s Jamaican

accent and even went so far as to ask the jury, “why you didn’t hear that

accent?” Although I acknowledge that closing arguments are not evidence

for a jury to consider, the closing remarks of the state are the last words

heard by the jury before they retire to deliberate.

{¶ 81} Taking into account all the circumstances of this case, I cannot

conclude that the prosecutor’s improper statements were harmless. I am

influenced strongly by the fact that the prosecutor’s impermissible reference

of Miller’s decision not to testify supported the state’s theory that Miller was

the owner of the suspected package; a theory that is otherwise not clear

beyond a reasonable doubt from the evidence.

{¶ 82} Miller presented credible evidence that he and his wife intended

to return the package to the FedEx location in Bedford. The package was

delivered to the former residence of Miller’s mother-in-law and was addressed

to a person unknown to Miller or his wife. Miller did not open the suspected

package and, in fact, had it in his possession for less than a few minutes.

Miller’s wife testified that she was about to call FedEx when police officers

detained the couple. To the extent that the prosecutor’s comments affirmed

the state’s theory that the package belonged to Miller, it directly influenced

the jury’s decision on the central issue of the trial.
 {¶ 83} Accordingly, the state’s impermissible reference to Miller’s failure

to testify effectively tipped the balance in favor of the state. See United

States v. McCoy (C.A.9, 1984), 771 F.2d 1207 (holding that testimony by

former assistant United States attorney that government had an extremely

strong case against defendant was reversible error); State v. Smith (1998),

130 Ohio App.3d 360, 720 N.E.2d 149 (holding that a prosecutor’s improper

comment on a defendant’s lack of an alibi during closing argument violated

the Fifth Amendment); and Beebe (holding prosecutorial misconduct

warranted a reversal of conviction when the prosecutor continuously referred

to defendant’s decision to take the Fifth Amendment on certain matters.)

{¶ 84} Because I find the prosecutorial misconduct that occurred during

the trial negatively affected Miller’s substantial rights, I would sustain

Miller’s second assignment of error.

{¶ 85} Moreover, although not raised on appeal, I find the evidence

presented at trial insufficient to support Miller’s convictions for drug

trafficking in violation of R.C. 2925.03(A)(2) and drug possession in violation

of R.C. 2925.11(A).

{¶ 86} This court dealt with a similar fact pattern in State v. Blackshear,

Cuyahoga App. No. 95424, 2011-Ohio-1806. In Blackshear, Cleveland

narcotics detectives were inspecting packages at the FedEx facility in Bedford

Heights, Ohio, when they observed a heavily taped package that was shipped
overnight from Las Vegas to a person named Jarrett Smith, 991 Helmsdale

Avenue in Cleveland Heights. Id. The shipping costs on the package were

paid in cash, the label was handwritten, the two listed phone numbers were

disconnected, and the recipient’s name did not match the delivery address.

Id. The police brought in a K-9 unit and Daisy, the narcotics dog, identified

the suspect package as containing drugs. Id.

{¶ 87} The officers obtained a warrant and located 3669.2 grams of

marijuana packaged in several heat sealed bags. Id. The officers also

acquired an anticipatory search warrant for the Helmsdale house. Id. The

officers then executed a controlled drop-off of the package to the residence

where the defendant lived with his father, who owned the house. Id. At the

time of the drop-off, the defendant answered the door, signed for the package,

placed it on a table near the door, and returned to playing video games with

his friend. Id. Blackshear stated that he believed the package was for his

father, who regularly had packages delivered to the house. Id. Two hours

later, police executed the search warrant and recovered the package, which

remained unopened, near the front door. Id. A jury convicted the defendant

of drug trafficking, drug possession, and possession of criminal tools. Id.

{¶ 88} On appeal, this court overturned Blackshear’s convictions,

holding that there was insufficient evidence to support his convictions for

drug trafficking and drug possession. Id. Specifically, this court in
Blackshear determined that the state failed to support the element of

knowledge with sufficient evidence. Id. In Blackshear, the trial court

instructed the jury regarding “deliberate ignorance” or “willful blindness” as

related to the defendant’s state of mind: “You can further find the defendant

acted knowingly if he deliberately closed his eyes to what he had reason to

believe [were] the facts.” Id. State v. Smith (June 15, 1995), Cuyahoga App.

No. 67524.

{¶ 89} In Blackshear, this court found insufficient evidence that the

defendant deliberately closed his eyes to the fact that the package contained

marijuana. Id. Blackshear’s name was not on the package, he had reason

to believe the package was a typical delivery for his father, and there were no

inconsistencies in his testimony, which was bolstered by consistent testimony

from his father. Id. This court in Blackshear further stated as follows:

“The facts in the instant case do not suggest that
defendant’s suspicions were aroused or that he
deliberately avoided knowledge of the package’s contents.
Evidence that defendant signed for the package does not
prove that he knowingly committed drug possession or
drug trafficking under the circumstances of this case.
Indeed, without additional evidence implicating
defendant, it is just as likely that defendant’s father
‘knowingly possessed’ the package containing drugs.”

{¶ 90} In the present case, the trial court instructed the jury with the

following definition of knowledge:
 “A person acts knowingly regardless of his purpose when
he is aware his conduct will probably cause a certain
result or he is aware that his conduct will probably be of a
certain nature. A person has knowledge of circumstances
when he is aware that such circumstances probably exist.
Since you cannot look into the mind of another,
knowledge is determined from all of the facts and
circumstances in evidence.” (Tr. 512.)

{¶ 91} Like Blackshear, the facts in the instant case do not suggest that

Miller knew that the package “probably” contained marijuana. As stated

above, Miller presented credible evidence that he and his wife intended to

return the package to the FedEx location in Bedford. The package was

delivered to the former residence of Miller’s mother-in-law and was addressed

to a person unknown to Miller or his wife. Miller did not open the suspected

package and, in fact, had it in his possession for less than a few minutes.

Miller’s wife testified that she was about to call FedEx when police officers

detained the couple.

{¶ 92} Accordingly, I conclude that the state failed to establish that

Miller knew, or probably knew, that the package contained marijuana.

Moreover, the evidence used to convict Miller is so inadequate that it is just

as likely that Miller’s wife knowingly possessed the package containing drugs.

I therefore find plain error occurred as there was insufficient evidence to

support Miller’s convictions for drug trafficking and drug possession.
 {¶ 93} Based on the foregoing, I would sustain Miller’s first and second

assignments of error rendering his third and fourth assignments of error

moot. I would vacate Miller’s conviction and sentence and remand the

matter for proceedings consistent with this dissent.