State v. Thompson

[Cite as State v. Thompson, 2016-Ohio-5571.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

PORTAGE COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, :
CASE NO. 2015-P-0034
- vs - :

MICHAEL THOMPSON, :

Defendant-Appellant. :

Criminal Appeal from the Portage County Municipal Court, Kent Division, Case No.
2015 CRB 00261K.

Judgment: Affirmed.

Victor V. Vigluicci, Portage County Prosecutor, and Kristina Drnjevich, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

Michael Thompson, pro se, 221 Spaulding Drive, Apt. 3, Kent, OH 44240 (Defendant-
Appellant).

CYNTHIA WESTCOTT RICE, P.J.

{¶1} Appellant, Michael Thompson, pro se, appeals his conviction, following a

bench trial, in the Portage County Municipal Court, Kent Division, of possession of

marijuana, a minor misdemeanor. The principal issue is whether appellant’s conviction

was against the manifest weight of the evidence. For the reasons that follow, we affirm.

{¶2} At trial, Officer Josh Nelson of the Kent Police Department testified that on

February 12, 2015, at about 4:00 p.m., he was parked in his cruiser in a driveway
between two apartment buildings running license plates and checking for speeders. At

that time he saw appellant’s vehicle, a white Pontiac Grand Am, coming out of a parking

lot across the street. About one week earlier, the Kent Police Department received a tip

from a female who reported that appellant was selling drugs. She provided appellant’s

address and the description and license plate of his car.

{¶3} The car that appellant was driving matched the description and license

plate provided by the tipster. Officer Nelson also saw there was a passenger in the

front passenger seat. The officer ran the license plate and discovered that the car was

registered to appellant and that the plates were expired. The officer then pulled out and

followed appellant and his passenger in order to conduct a traffic stop.

{¶4} Appellant pulled into a restaurant parking lot. The officer followed him into

the parking lot and then activated his overhead lights.

{¶5} Officer Nelson walked over to appellant’s car and said he stopped him

because his license plates were expired. Appellant said that was wrong. The officer

asked appellant for his registration and showed him the plates were expired. After

checking his registration, Officer Nelson asked appellant where they were going.

Appellant said they were late and in a hurry because he needed to take the female

seated in the front passenger seat to a doctor’s appointment. The officer testified this

was strange because appellant pulled into the parking lot before he initiated the stop

and there was no doctor’s office there.

{¶6} Officer Nelson asked the passenger, Klarissa Wagner, for her

identification. He ran it through L.E.A.D.S. and found she had an outstanding arrest

warrant from Stow. Officer Nelson then asked appellant for consent to search his car

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and he refused. The officer returned to his cruiser and radioed for a canine officer to

come to the scene to check appellant’s car for drugs. Ms. Wagner was handcuffed due

to her outstanding warrant and placed in Officer Nelson’s cruiser. Appellant was placed

in the cruiser of Officer Bowen, another Kent Police Officer who provided backup.

{¶7} About ten minutes later, Officer Ted Bell of the Stow Police Department

arrived with his certified canine partner Mingo. Officer Bell testified that, at Officer

Nelson’s request, he had Mingo check around appellant’s car for the odor of drugs.

Mingo alerted to near the door seam at the driver’s side, indicating she detected the

odor of drugs.

{¶8} Officer Bell advised Officer Nelson regarding the results of the sniff.

Officer Nelson told appellant that the canine alerted and asked him why the dog would

alert to his vehicle. Appellant said, “there’s probably marijuana seed on the floor.”

{¶9} Officer Nelson testified that once Mingo alerted to the vehicle, he and

Officer Bell searched it. Appellant’s Pontiac was a two-door sedan. Officer Nelson

searched the driver’s side and Officer Bell searched the passenger’s side. Officer

Nelson searched the driver’s seat first and then moved the driver’s seat up. He lifted

the floor mat behind the driver’s seat and saw a baggie of marijuana under the mat near

where Mingo had alerted. Officer Nelson identified the baggie of marijuana in court.

{¶10} Officer Bell said he searched Ms. Wagner’s purse that was on the

passenger side of the car and found a metal spoon inside. He said the spoon had burn

marks on it, which, he said, is common with spoons used to dissolve heroin or

prescription pills.

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 {¶11} Officer Nelson talked to Ms. Wagner about the spoon. At first she said

she used it to eat. When he asked her why there were burn marks on the spoon, she

said a friend must have put it in her purse.

{¶12} Officer Nelson cited appellant for possession of marijuana, a minor

misdemeanor, but decided to give him a warning rather than a citation for the expired

plates. Officer Bowen drove him to the Kent Police Department for booking. Officer

Nelson transported Ms. Wagner to the Stow Police Department to be booked for

possession of drug abuse instruments and also to be served with her outstanding

warrant. As Officer Nelson was driving Ms. Wagner to the Stow Police Department,

Officer Bowen called him and said that appellant told him that when Officer Nelson

initially stopped them in the restaurant parking lot, Ms. Wagner shoved syringes and

spoons down her pants. When Officer Nelson told Ms. Wagner that appellant said she

put these instruments down her pants to conceal them, she admitted it. However, she

never said the marijuana belonged to her. Ms. Wagner ultimately pled guilty to

possession of drug abuse instruments in the Stow Municipal Court.

{¶13} After the state rested its case, appellant called Klarissa Wagner as his

only witness. On direct, she simply said she put marijuana in appellant’s car that day;

however, on cross, her story unraveled. She said that when Officer Nelson stopped

them, she had marijuana, three syringes, and two spoons in her purse. She said she

was using heroin at that time and used the syringes in her purse to shoot up. She said

she wanted to hide these items from the police so she put the needles and spoons in

her pants and “tossed [the marijuana] back so it could have went, you know, anywhere

in the back.” She said she does not know how the marijuana got under the floor mat

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behind the driver’s seat. Nor did she explain why she would conceal needles and

spoons on her person, but take the risk of throwing the drugs in the back where anyone

could see them when she could just as easily have hid the marijuana with the other

items.

{¶14} Ms. Wagner said she told Officer Nelson that she was late for a doctor’s

appointment and they were in a hurry to get there, but she admitted appellant drove to

the restaurant to get lunch. Once she realized this was inconsistent with her story about

them being in a hurry, she reversed course and said he only drove there to “order” lunch

and that he would pick it up after her appointment. However, later in her testimony she

said the doctor’s office was so far, the bus would not take her there. She did not say

why they did not just simply go to lunch after the appointment. Further, she did not offer

any doctor’s note or any other document showing that she had a doctor’s appointment

that day.

{¶15} Ms. Wagner was also unclear about the marijuana she said was hers.

She was unsure how it was packaged. She said it was only 3.5 grams of marijuana,

although Officer Nelson said it was 21 grams. And, she refused to testify who she

bought it from, even after the court ordered her to do so.

{¶16} In the state’s rebuttal case, Officer Nelson said that from the time he

determined appellant’s license plates were expired, he saw there was a passenger in

appellant’s car. He never lost visual contact with the vehicle and never saw any furtive

movements by either occupant. Specifically, he said he did not see Ms. Wagner throw

anything in the back seat.

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 {¶17} Following the trial, the trial court found appellant guilty of possession of

marijuana, a minor misdemeanor; fined him $150; and suspended his driver’s license

for six months.

{¶18} Appellant appealed the trial court’s judgment, and the trial court stayed

execution of his sentence. In his brief, appellant does not assert any assignments of

error. Instead, he presents a one and one-half page rambling argument that briefly

mentions five issues. While it is not the role of this court to construe various issues

raised as assignments of error, in the interests of justice we shall address the issues

mentioned in the brief.

{¶19} First, appellant does not challenge the sufficiency of the evidence to

support his conviction of possession of marijuana; rather, he challenges only the

manifest weight of the evidence.

{¶20} A court reviewing the manifest weight observes the entire record, weighs

the evidence and all reasonable inferences, and considers the credibility of the

witnesses. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). The court determines

whether, in resolving conflicts in the evidence and deciding witness credibility, the trier

of fact clearly lost its way and created such a manifest miscarriage of justice that the

judgment must be reversed and a new trial ordered. Id. The discretionary power to grant

a new trial should only be exercised in the exceptional case in which the evidence

weighs heavily against the conviction. Id. Witness credibility rests solely with the finder

of fact, and an appellate court is not permitted to substitute its judgment for that of the

fact-finder. State v. Awan, 22 Ohio St.3d 120, 123 (1986). “The [trier of fact] is entitled to

believe all, part, or none of the testimony of any witness.” State v. Archibald, 11th Dist.

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Lake Nos. 2006-L-047 and 2006-L-207, 2007-Ohio-4966, ¶61. The role of the reviewing

court is to engage in a limited weighing of the evidence in determining whether the state

properly carried its burden of persuasion. Thompkins, supra, at 390 (Cook, J.,

concurring). If the evidence is susceptible to more than one interpretation, an appellate

court must interpret it in a manner consistent with the verdict. State v. Banks, 11th Dist.

Ashtabula No. 2003-A-0118, 2005-Ohio-5286, ¶33.

{¶21} Appellant argues that the municipal court was prejudiced against him and

his witness as evidenced by the judge’s finding on the record that she found the officers’

testimony to be credible but that Ms. Wagner’s testimony was not. However, this finding

shows the court performed its duty to determine the credibility of the witnesses and

does not reflect bias.

{¶22} The only alleged inconsistency noted by appellant is that, while Officer

Nelson testified he found the marijuana in the back under the floor mat, Officer Bell, the

canine officer, testified the marijuana was found in the back of the car. However, Officer

Bell searched only the passenger side of the car, while Officer Nelson searched the

driver’s side and found the marijuana. Thus, it was understandable that Officer Bell was

unaware exactly where in the back of the car Officer Nelson found the drugs. In any

event, since both officers said that Officer Nelson found the marijuana in the back of the

car, their testimony on this point was consistent.

{¶23} The trial court was entitled to find, as it did, that the officers’ testimony was

credible while that of Ms. Wagner was not, and nothing in the record suggests that the

trial court clearly lost its way and created such a manifest miscarriage of justice that the

judgment must be reversed and a new trial ordered.

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 {¶24} Second, appellant argues that the trial court, prosecutor, and public

defender attempted to intimidate Ms Wagner to get her to recant her testimony that the

marijuana belonged to her. However, appellant is referring to the court’s efforts to

advise her of her Fifth Amendment right not to incriminate herself. After Ms. Wagner

testified she had marijuana in her purse, the court interrupted the proceedings to advise

her that it appeared she was going to admit possessing marijuana and that by doing so

she would be admitting a crime. After the court advised Ms. Wagner that she had a

right not to incriminate herself, she said she wanted to proceed. Then, at the

prosecutor’s request, the court advised Ms. Wagner that if it was proven she was not

telling the truth under oath, she could be committing perjury, another criminal offense.

Ms. Wagner said she understood.

{¶25} Later, when the prosecutor asked Ms. Wagner about the purpose of the

syringes in her purse, appellant objected on the ground that the prosecutor was

“incriminating” the witness. The court then asked the witness if she would like to

exercise her Fifth Amendment privilege and remain silent and the witness said she did

not want to talk right now.

{¶26} During a brief recess, the court had a public defender advise Ms. Wagner

regarding her rights. The trial court said on the record that, after talking to the public

defender, the court was confident the public defender explained Ms. Wagner’s

constitutional rights and privileges to her. After the recess, when the court asked Ms.

Wagner if she wanted to continue testifying or exercise her Fifth Amendment privilege,

the witness said she wanted to testify.

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 {¶27} Later in her testimony, when the prosecutor asked Ms. Wagner where she

got the marijuana, Ms. Wagner refused to testify. The court allowed her to assert her

Fifth Amendment privilege as to that question only, but allowed her to testify as to other

matters.

{¶28} Thus, there is no evidence the court, prosecutor, or public defender

attempted to intimidate Ms. Wagner to recant her testimony that the marijuana belonged

to her. To the contrary, the court simply informed her of her privilege against self-

incrimination and enlisted the public defender to also advise her of her rights. In any

event, even if there was error, any error would be harmless beyond a reasonable doubt

because the witness never recanted her testimony that the marijuana was hers.

{¶29} Third, appellant states that the traffic stop and search were unlawful;

however, he does not present any argument in support, in violation of App.R. 16(A)(7).

For this reason alone, the argument (such as it is) lacks merit.

{¶30} More importantly, appellant never filed a motion to suppress evidence.

Crim.R. 12(B) provides: “Prior to trial, any party may raise by motion any defense,

objection, evidentiary issue, or request that is capable of determination without the trial

of the general issue. The following must be raised before trial: * * * (3) Motions to

suppress evidence * * *.” It is well settled that the failure to file a pretrial motion to

suppress evidence on the grounds that it was illegally obtained constitutes a waiver of

the error. State v. Moody, 55 Ohio St.2d 64, 65 (1978); State v. Jones, 8th Dist.

Cuyahoga No. 92820, 2009-Ohio-5701, ¶38 (“Crim.R. 12(B) requires a defendant to

raise any objection to the admissibility of unconstitutionally obtained evidence in a

pretrial motion to suppress.”).

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 {¶31} It is undisputed that appellant never filed a motion to suppress evidence

obtained as a result of the stop and search of his vehicle. As a result, he waived any

objection to the introduction of the evidence at trial.

{¶32} Fourth, appellant argues the marijuana was not lab tested before being

admitted in evidence. While his argument is far from clear, he appears to be arguing

the trial court abused its discretion in admitting the marijuana in evidence. The

admission or exclusion of evidence lies within the sound discretion of a trial court, and a

reviewing court may not disturb evidentiary decisions without an abuse of discretion.

State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, ¶43, citing State v. Issa, 93 Ohio

St.3d 49, 64 (2001).

{¶33} As a preliminary matter, appellant did not object to the admissibility of the

marijuana at trial. This issue is thus waived on appeal. Awan, supra, at 122.

{¶34} In any event, even if the issue was not waived, it would lack merit.

Pursuant to R.C. 2925.51, the state may establish prima-facie evidence of the identity of

a controlled substance through laboratory testing. However, Ohio courts have held that

lab testing is not always necessary to prove the identity of a substance. For example,

the Supreme Court of Ohio has held that police officers trained and qualified may testify

that a substance is marijuana without a laboratory test as long as there is a sufficient

foundation laid to establish familiarity with the drug. State v. Maupin, 42 Ohio St.2d 473

(1975), paragraph two of the syllabus. In addition, the Ohio Supreme Court has held

that a lay witness who is a drug user can establish his or her competence to express an

opinion on the identity of a controlled substance if a sufficient foundation for the

testimony is established. State v. McKee, 91 Ohio St.3d 292 (2001), syllabus

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 {¶35} Officer Nelson testified that he successfully completed training in

marijuana odor detection with the Portage County Drug Task Force and that, based on

his training and experience, he is able to determine if a substance is marijuana. He

testified that when he lifted the floor mat in the rear of appellant’s car, he found a baggie

containing marijuana. He testified that when he found the baggie, he knew it contained

marijuana because “[y]ou could smell it outside of this outer plastic bag. Marijuana has

a very distinct odor. Also, by looking at it I could see that it was marijuana.”

{¶36} Further, appellant’s witness, Ms. Wagner, testified: (1) that she smokes

marijuana and has a supplier from whom she purchases marijuana; (2) that the baggie

she tossed in the back of appellant’s car contained marijuana; (3) that it looked like

about four grams of what she referred to as “good weed;” (4) that she bought it from her

supplier for $35; and (5) that the baggie containing green vegetable matter that was

marked as an exhibit at trial was in fact marijuana.

{¶37} Based on the foregoing evidence, the issue is waived, but even if it was

not, the trial court would not have abused its discretion by admitting the marijuana in

evidence.

{¶38} Fifth and last, appellant argues his statutory speedy trial rights were

violated because he was tried after the expiration of the 30-day time limit for a minor

misdemeanor. As a preliminary matter, we note that appellant never raised this issue in

the trial court. He never filed a motion to dismiss the citation on speedy trial grounds

and, even at trial, he never raised the issue. “Without question speedy trial rights may

be waived.” State v. McDonald, 4th Dist. Highland No. 96CA913, 1997 Ohio App.

LEXIS 4340, *5 (Sep. 9, 1997). A defendant’s failure to raise this issue in the trial court

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waives any error. State v. Glazer, 111 Ohio App.3d 769, 772 (5th Dist.1996), citing

State v. Dumas, 68 Ohio App.3d 174, 176 (10th Dist.1990). In Dumas, the Tenth

District stated:

{¶39} R.C. 2945.73(B) * * * provides:

{¶40} Upon motion made at or prior to the commencement of trial, a
person charged with an offense shall be discharged if he is not
brought to trial within the time required by sections 2945.71 and
2945.72 of the Revised Code.

{¶41} As is apparent here, the speedy-trial provisions are not self-
executing, but, rather, must be asserted by a defendant in a timely
fashion to avoid such rights being waived. Partsch v. Haskins, 175
Ohio St. 139 (1963), and subsequent related cases uniformly
support this proposition. * * * Dumas, supra.

{¶42} We therefore hold appellant waived any objection based on a violation of

the speedy trial statute.

{¶43} In any event, even if the issue was not waived, the argument would lack

merit. Pursuant to R.C. 2945.71(A), a person charged with a minor misdemeanor must

be brought to trial within 30 days after an arrest or service of summons. Pursuant to

R.C. 2945.72(H), a trial court may extend a trial past the speedy trial limit for the period

of any reasonable continuance granted on the state’s motion (“The time within which an

accused must be brought to trial * * * may be extended * * * by * * * the period of any

reasonable continuance granted other than upon the accused’s own motion.”). The trial

date may also be extended for any period occasioned by the neglect or improper act of

the defendant. R.C. 2945.72(D).

{¶44} Appellant was served with the citation on February 12, 2015. He thus had

to be tried by March 14, 2015. The trial was set for March 9, 2015. On March 9, 2015,

the state filed a motion for a continuance to obtain the video of the traffic stop. As of

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that date, 25 days had passed. The court granted the motion and continued the trial to

March 23, 2015.

{¶45} Ohio appellate courts, including the Ohio Supreme Court, have held that

reasonable continuances granted to the state are not counted against the state for

speedy trial purposes as long as legitimate grounds for the continuance are provided.

State v. Hess, 5th Dist. Stark No. 2003CA00348, 2004-Ohio-6820, ¶24 (continuance of

trial at state’s request, due to DNA testing and unavailability of victim due to pregnancy

complications, were not attributable to state for speedy trial purposes since grounds for

continuance were reasonable); State v. Barnett, 12th Dist. Fayette No. CA2002-06-011,

2003-Ohio-2014, ¶11-12 (continuance granted to state tolled speedy-trial time in

prosecution for rape since absence of one of state’s key witnesses and lack of

completion of DNA testing providing reasonable grounds for granting continuance);

State v. Myers, 97 Ohio St.3d 335, 342 (2002) (prosecutor’s request for continuance to

allow expert with 12-week backlog of cases to test foreign hair found on murder victim’s

body was not unreasonable and could not be charged against state for speedy trial

purposes).

{¶46} Here, the state moved for a continuance to allow it to obtain and review a

video of the stop. The state had the right, and even the duty, to review the video prior to

trial. Since appellant did not raise the speedy trial issue below, he did not challenge the

reasonableness of the state’s request for a continuance. Thus, appellant did not offer

any evidence that the state’s motion was not made in good faith. In these

circumstances, the continuance was not attributable to the state for speedy trial

purposes.

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 {¶47} On the date scheduled for trial, appellant failed to appear and the trial was

reset to April 2, 2015. The additional ten days after March 23, 2015 are attributable to

appellant due to his neglect or improper act in failing to appear. The trial proceeded on

April 2, 2015, 19 days after the statutory 30-day time limit.

{¶48} Thus, even if the issue was not waived, appellant’s right to a speedy trial

was not violated.

{¶49} For the reasons stated in this opinion, the purported assignment of error

lacks merit and is overruled. It is the order and judgment of this court that the judgment

of the Portage County Municipal Court, Kent Division, is affirmed.

DIANE V. GRENDELL, J., concurs,

COLLEEN MARY O’TOOLE, J., concurs with a Concurring Opinion.

____________________

COLLEEN MARY O’TOOLE, J., concurs with a Concurring Opinion.

{¶50} I concur with the majority’s well-reasoned opinion. I write separately

regarding the matter of appellant’s arguments concerning the alleged violation of his

statutory speedy trial rights. The majority is correct that speedy trial provisions are not

self-executing and they can be waived. In this case appellant failed to raise this matter

in the trial court, effectively waiving any objection.

{¶51} The majority goes on to note that—even if appellant had not waived his

speedy trial rights—the result would be the same as a trial court may grant a reasonable

extension of the speedy trial limit under R.C. 2945.72(H). Extensions under R.C.

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2945.72(H) have been granted for a variety of reasons. State v. Nesser, 2d Dist. Clark

No. 2013 CA 21, 2014-Ohio-1978 ¶34-36 (Superstorm Sandy); State v. Talley, 6th Dist.

Lucas No. L-07-1153, 2008-Ohio-6807, ¶15 (snow emergency); State v. Strauss, 11th

Dist. Portage No. 2010-P-0035, 2011-Ohio-869, ¶14 (unavailability of witness due to

medical emergency); State v. Mailey, 1st Dist. Hamilton No. C-050590, 2006-Ohio-

3347, ¶20 (scheduling conflict due to jury trial).

{¶52} However, in this case the continuance was requested so that the state

could obtain the video of the traffic stop. It is reasonable to grant an extension of a

defendant’s statutory speedy trial rights due to events that are outside the control of the

court or the parties. However, it is not reasonable to grant such an extension so that

the state can perform regular and routine case-preparation—such as obtaining a video

of a traffic stop. One would assume that the state would have performed this routine

function prior to trial.

{¶53} The state has a duty to exercise due diligence and prepare for trial within

the statutory time period. State v. Jordan, 10th Dist. Franklin No. 90AP-660, 1991 Ohio

App. LEXIS 775, *7 (Feb. 21, 1991), citing State v. Reeser, 63 Ohio St.2d 189, 191

(1980). Having video evidence, taken on the date of arrest, prepared for trial within the

statutory time period constitutes due diligence. Absent appellant’s waiver, a

continuance under these circumstances would not be reasonable.

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