[Cite as State v. Johnson, 2016-Ohio-5611.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Sheila G. Farmer, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. John W. Wise, J.
-vs- :
:
CARL E. JOHNSON, JR. : Case No. 15-CA-114
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2015CR0585
JUDGMENT: Affirmed
DATE OF JUDGMENT: August 26, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
DANIEL M. ROGERS JOHN A. BOYD
38 South Park Street 1 Marion Avenue
Mansfield, OH 44902 Suite 215
Mansfield, OH 44903
Richland County, Case No. 15-CA-114 2
Farmer, P.J.
{¶1} On July 10, 2015, the Richland County Grand Jury indicted appellant, Carl
Johnson, Jr., on six counts of trafficking (cocaine, heroin, and marijuana) in violation of
R.C. 2925.03, three counts of drug possession (cocaine, heroin, and marijuana) in
violation of R.C. 2925.11, and one count of having weapons while under disability in
violation of R.C. 2923.13. Said charges arose from controlled drug buys between
appellant and a confidential informant on March 17, and 30, 2015, and May 27, 2015,
and a subsequent search of appellant's apartment on May 28, 2015, via a search
warrant.
{¶2} On August 14, and September 4, 2015, appellant filed a motion to
suppress and a supplemental motion to suppress. Appellant sought to suppress the
evidence seized from the apartment and his statements made to police officers. A
hearing was held on October 30, 2015. By judgment entry filed November 10, 2015, the
trial court denied the motion, upholding the search warrant and finding appellant had
received his rights and had waived them
{¶3} A jury trial commenced on November 30, 2015. The jury found appellant
guilty as charged. By judgment entry filed December 4, 2015, the trial court merged
some of the counts and sentenced appellant to a total aggregate term of twenty-four
years in prison.
{¶4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
Richland County, Case No. 15-CA-114 3
I
{¶5} "MR. JOHNSON'S CONVICTIONS WERE AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE, SO THEY MUST BE REVERSED AND THE CASE
REMANDED FOR A NEW TRIAL."
II
{¶6} "THE TRIAL COURT ERRED BY FAILING TO SUPPRESS
APPELLANT'S STATEMENTS, TO WHICH OFFICERS TESTIFIED DURING THE
TRIAL, WHERE APPELLANT TESTIFIED THAT HE MADE THOSE STATEMENTS
WITHOUT HAVING BEEN READ HIS MIRANDA WARNINGS AND WHERE
APPELLANT WAS QUESTIONED BY LAW ENFORCEMENT WHILE UNDER
DETENTION."
III
{¶7} "DEFENSE COUNSEL RENDERED INEFFECTIVE ASSISTANCE AS
FOLLOWS: 1) THE STATE'S WITNESS, DURING CROSS-EXAMINATION, WAS
PROMPTED BY DEFENSE TO READ APPELLANT'S INCULPATORY STATEMENTS
INTO THE RECORD, VERBATIM, FROM THE OFFICER'S SUPPLEMENTAL
NARRATIVE POLICE REPORT; 2) DEFENSE COUNSEL FAILED TO QUESTION THE
CONFIDENTIAL INFORMANT AS TO WHETHER THE CONFIDENTIAL INFORMANT
TAMPERED WITH THE EVIDENCE COLLECTED DURING CONTROLLED BUYS
WHEN THE VALUE OF THE DRUGS SOLICITED WAS $100 BUT THE VALUE OF
THE DRUGS COLLECTED WAS $20; 3) DEFENSE COUNSEL DID NOT MOVE FOR
SPECIFIC DISCOVERY SEEKING TEXT MESSAGES BETWEEN THE STATE AND
APPELLANT; 4) DEFENSE COUNSEL DID NOT QUESTION ANY OF THE STATE'S
Richland County, Case No. 15-CA-114 4
WITNESSES CONCERNING TOUCH DNA OF THE FIREARM; 5) DEFENSE
COUNSEL CONFUSED THE JURY AND UNDERMINED THE CREDIBILITY OF THE
THEORY OF THE DEFENSE CASE DURING CLOSING ARGUMENT BY A)
REFERENCING THAT THE CHILDREN IN HIS FAMILY THINK IT'S TIME FOR HIM
TO QUIT PRACTICING LAW, B) COMPARING THE CONFIDENTIAL INFORMANT IN
THE CASE TO JUDAS, BENEDICT ARNOLD AND MATA HARI, C) MAKING
DISTRACTING LITERARY REFERENCES THROUGHOUT CLOSING ARGUMENT, D)
INSINUATING THAT THE POLICE FABRICATED EVIDENCE WITHOUT ANY PROOF
WHATSOEVER OF THE SAME, AND E) MOST SIGNIFICANTLY, BY TELLING THE
JURY THAT THEY ARE MISSING EVIDENCE – THE VERY EVIDENCE THAT THE
TRIAL JUDGE RULED WAS INADMISSIBLE – WHICH DREW AN OBJECTION BY
THE STATE DURING CLOSING ARGUMENT."
I
{¶8} Appellant claims his convictions were against manifest weight of the
evidence as the testimony of the confidential informant was not credible, and there was
no proof that he was a resident of the searched premises. We disagree.
{¶9} On review for manifest weight, a reviewing court is to examine the entire
record, weigh the evidence and all reasonable inferences, consider the credibility of
witnesses and determine "whether in resolving conflicts in the evidence, 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." State v. Martin, 20 Ohio App.3d 172, 175 (1st
Dist.1983). See also, State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. The
granting of a new trial "should be exercised only in the exceptional case in which the
Richland County, Case No. 15-CA-114 5
evidence weighs heavily against the conviction." Martin at 175. We note circumstantial
evidence is that which can be "inferred from reasonably and justifiably connected facts."
State v. Fairbanks, 32 Ohio St.2d 34 (1972), paragraph five of the syllabus.
"[C]ircumstantial evidence may be more certain, satisfying and persuasive than direct
evidence." State v. Richey, 64 Ohio St.3d 353, 1992-Ohio-44. It is to be given the
same weight and deference as direct evidence. State v. Jenks, 61 Ohio St.3d 259
(1991).
COUNTS 1, 3, AND 8
{¶10} Appellant was convicted on Counts 1, 3, 8 of trafficking in cocaine, heroin,
and marijuana in violation of R.C. 2925.03(A)(2) which states:
(A) No person shall knowingly do any of the following:
(2) Prepare for shipment, ship, transport, deliver, prepare for distribution,
or distribute a controlled substance or a controlled substance analog,
when the offender knows or has reasonable cause to believe that the
controlled substance or a controlled substance analog is intended for sale
or resale by the offender or another person.
{¶11} These counts stem from the execution of the search warrant at 373
Jennings Avenue, Apartment C, Mansfield, Ohio. Numerous items found on the
premises were items generally associated with drug trafficking. T. at 233-243, 246-248,
251-252, 330-349, 565-571. Appellant admitted to the police officers that he was the
sole resident of the apartment, and his personal items were located throughout the
Richland County, Case No. 15-CA-114 6
apartment. T. at 244, 246-247, 303-304, 498-504; State's Exhibits 59 and 60.
Appellant also sent a letter to a friend, Brianna Daniels, encouraging her to lie about
where he lived. T. at 620-621, 623; State's Exhibit 48.
COUNTS 4, 5, AND 6
{¶12} Appellant was convicted on Counts 4, 5, and 6 of trafficking in heroin in
violation of R.C. 2925.03(A)(1) which states: "[n]o person shall knowingly do any of the
following:***[s]ell or offer to sell a controlled substance or a controlled substance
analog."
{¶13} These counts stem from the controlled buys to the confidential informant,
Bobbi Stone, on March 17, and 30, 2015, and May 27, 2015. Appellant specifically
challenges the informant's credibility. Bobbi Stone testified to the procedures used for
the controlled buys, and testified she purchased heroin from appellant on the
aforementioned dates. T. at 389-406, 410-421, 425-426, 441-447. The telephone calls
between appellant and Ms. Stone, as well as the controlled buys, were recorded, and
the recordings were played to the jury. State's Exhibits 32-34 and 63-66. Each time,
Ms. Stone identified appellant as the individual who sold her the heroin. T. at 393, 403,
410, 414, 425-426; State's Exhibit 49.
{¶14} Ms. Stone's testimony was corroborated by the police officers. Mansfield
Police Department Sergeant Steve Blust and Ashland Police Department Officer Brian
Evans, both working for the Metrich Enforcement Unit, a drug task force, testified to the
procedures used and to listening to and observing the telephone calls between
appellant and Ms. Stone and monitoring the controlled buys between the two. T. at
205-219, 223-226, 317-328.
Richland County, Case No. 15-CA-114 7
COUNT 10
{¶15} Appellant was convicted on Count 10 of having weapons under disability
in violation of R.C. 2923.13(A)(3) which states:
(A) Unless relieved from disability under operation of law or legal process,
no person shall knowingly acquire, have, carry, or use any firearm or
dangerous ordnance, if any of the following apply:
(3) The person is under indictment for or has been convicted of any felony
offense involving the illegal possession, use, sale, administration,
distribution, or trafficking in any drug of abuse or has been adjudicated a
delinquent child for the commission of an offense that, if committed by an
adult, would have been a felony offense involving the illegal possession,
use, sale, administration, distribution, or trafficking in any drug of abuse.
{¶16} Appellant admitted to being the sole resident of the apartment. T. at 244.
A firearm was found in a bedroom, and appellant's prior conviction for a felony drug
trafficking offense was stipulated to in the record. T. at 249, 514-517, 529, 595-598;
State's Exhibit 30.
{¶17} Upon review, we find sufficient credible evidence to support the
convictions and find no manifest miscarriage of justice.
{¶18} Assignment of Error I is denied.
Richland County, Case No. 15-CA-114 8
II
{¶19} Appellant claims the trial court erred in denying his motion to suppress
statements made to police officers, as the trial court erred in finding he was advised of
his constitutional rights to remain silent and waived those rights. We disagree.
{¶20} There are three methods of challenging on appeal a trial court's ruling on a
motion to suppress. First, an appellant may challenge the trial court's findings of fact.
In reviewing a challenge of this nature, an appellate court must determine whether said
findings of fact are against the manifest weight of the evidence. State v. Fanning, 1
Ohio St.3d 19 (1982); State v. Klein, 73 Ohio App.3d 486 (4th Dist.1991); State v.
Guysinger, 86 Ohio App.3d 592 (4th Dist.1993). Second, an appellant may argue the
trial court failed to apply the appropriate test or correct law to the findings of fact. In that
case, an appellate court can reverse the trial court for committing an error of law. State
v. Williams, 86 Ohio App.3d 37 (4th Dist.1993). Finally, assuming the trial court's
findings of fact are not against the manifest weight of the evidence and it has properly
identified the law to be applied, an appellant may argue the trial court has incorrectly
decided the ultimate or final issue raised in the motion to suppress. When reviewing
this type of claim, an appellate court must independently determine, without deference
to the trial court's conclusion, whether the facts meet the appropriate legal standard in
any given case. State v. Curry, 95 Ohio App.3d 93 (8th Dist.1994); State v. Claytor, 85
Ohio App.3d 623 (4th Dist.1993); Guysinger. As the United States Supreme Court held
in Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 1663 (1996), "…as a general matter
determinations of reasonable suspicion and probable cause should be reviewed de
novo on appeal."
Richland County, Case No. 15-CA-114 9
{¶21} The gravamen of this assignment is whether there were sufficient credible
facts to substantiate the trial court's decision that appellant received his Miranda
warnings and waived them. In its November 10, 2015 judgment entry denying the
motion to suppress, the trial court found the following:
As to the second issue. Detective Steven Blust and Detective Brian
Evans both testified that the defendant was given his Miranda warnings
and testified that the defendant indicates that he understood his rights
prior to speaking to Detective Blust. The defendant testified and denied
being read his Miranda warnings and denied saying anything incriminating
to the officers. The court heard the testimony and finds Detective Blust
and Detective Evans to be credible. Accordingly, the court finds that the
defendant was given his Miranda warnings.
As to the issue of voluntariness of the defendant's statements the
court finds those statements were given voluntarily by the defendant after
considering a totality of the circumstances including, but not limited to, the
age of the defendant, his prior criminal experience with law enforcement,
the fact that he did not appear to be intoxicated or under the influence,
and the lack of any evidence of threats, or physical deprivation or
mistreatment by the officers.
{¶22} During the suppression hearing, both Sergeant Blust and Officer Evans
testified appellant was read his Miranda rights, he acknowledged he understood them,
Richland County, Case No. 15-CA-114 10
and he waived his rights as he was willing to talk to the officers. October 30, 2015 T. at
6-8, 18-19, 22-27. Appellant testified he was not read his rights, and he did not make
any statements to the police officers other than stating he did not live in the apartment,
he was on his way out to buy coffee, and he asked for a cigarette. Id. at 33-35.
Appellant admitted he was not under the influence of anything, he did not have any
problems understanding what people are saying to him, and he understood everything
that was happening that day. Id. at 34-35.
{¶23} We note the weight to be given to the evidence and the credibility of the
witnesses are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d 182 (1990).
The trier of fact "has the best opportunity to view the demeanor, attitude, and credibility
of each witness, something that does not translate well on the written page." Davis v.
Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260.
{¶24} We find the testimonies of Sergeant Blust and Officer Evans support the
trial court's conclusions.
{¶25} Upon review, we find the trial court did not err in denying appellant's
motion to suppress his statements to police officers.
{¶26} Assignment of Error II is denied.
III
{¶27} Appellant claims he was denied the effective assistance of trial counsel as
his counsel caused appellant's inculpatory statements to be read into the record, failed
to effectively cross-examine the informant on tampering with the controlled buys, failed
to request discovery on text messages between appellant and the informant, failed to
Richland County, Case No. 15-CA-114 11
question the lack of DNA evidence on the weapon, and failed to cohesively argue during
closing argument. We disagree.
{¶28} The standard this issue must be measured against is set out in State v.
Bradley, 42 Ohio St.3d 136 (1989), paragraphs two and three of the syllabus. Appellant
must establish the following:
2. Counsel's performance will not be deemed ineffective unless and
until counsel's performance is proved to have fallen below an objective
standard of reasonable representation and, in addition, prejudice arises
from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2
O.O.3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674, followed.)
3. To show that a defendant has been prejudiced by counsel's
deficient performance, the defendant must prove that there exists a
reasonable probability that, were it not for counsel's errors, the result of
the trial would have been different.
{¶29} This court must accord deference to defense counsel's strategic choices
made during trial and "requires us to eliminate the distorting effect of hindsight." State
v. Post, 32 Ohio St.3d 380, 388 (1987).
INCULPATORY STATEMENTS
{¶30} Appellant argues his counsel erred in causing his inculpatory statements
to be read into the record by Sergeant Blust via his supplemental report. On direct,
Richland County, Case No. 15-CA-114 12
Sergeant Blust testified to observing cocaine and heroin being removed from appellant's
person as "he was stuffing it down his butt." T. at 240-241, 242; State's Exhibit 17 and
18. On cross-examination, defense counsel questioned Sergeant Blust on this issue
because of some discrepancies between his trial testimony and his testimony during the
suppression hearing e.g., whether some drugs were removed from appellant's "butt" or
from his pants as he tried to stuff a bag down his pants. T. at 273-279; October 30,
2015 T. at 6-7, 19. On recross-examination, defense counsel asked Sergeant Blust to
read from his report regarding his observations of appellant and a large shopping bag
he was attempting to stuff down his pants. T. at 310-311. It involved a legitimate
discrepancy going to the witness's credibility. The reading of the report provided no
new testimony to the case, as Sergeant Blust had already testified to appellant's
statements therein. T. at 244.
CROSS-EXAMINATION ON TAMPERING
{¶31} Appellant argues his counsel failed to effectively cross-examine the
informant on tampering with the controlled buys. It is important to note the actual
transactions were recorded and played to the jury. State's Exhibits 32-34 and 63-66.
Sergeant Blust, who prepared the informant for the buys and heard and observed the
buys, testified to the procedures used during the controlled buys and the actual buys
involving appellant and Ms. Stone. T. at 205-219, 223-226. Appellant also challenges
the informant's credibility by claiming she was using "Craigslist" in a prostitution sting. A
review of the record demonstrates defense counsel cross-examined Ms. Stone on this
issue. T. at 437-438.
Richland County, Case No. 15-CA-114 13
DISCOVERY ON TEXT MESSAGES
{¶32} Appellant argues his counsel failed to request discovery on text messages
between he and the informant. Evidence was presented that the text messages were
not preserved. T. at 227.
DNA ON THE WEAPON
{¶33} Appellant argues his counsel should have pursued the issue of DNA
evidence on the firearm. Defense counsel cross-examined Sergeant Blust on the lack
of any evidence testing on the firearm and any evidence as to ownership, as the firearm
was discovered inside a purse. T. at 279, 282-283.
CLOSING ARGUMENT
{¶34} Appellant argues his counsel did not present a cohesive closing argument.
The defense theory of the case was that appellant was but a guest in Apartment C and
he did not have any knowledge of the drugs and the firearm found in the apartment, and
the informant gave contrived testimony. T. at 179. Defense counsel's closing argument
centered on the basic premise of the defense's case e.g., the lack of credibility or
forthrightness of the informant, an attack on Mansfield Police Officer Perry Wheeler
collecting critical evidence when he arrived at the apartment a half-hour after the search
had started, the issue of concealed drugs on appellant's person, and the lack of proof
that appellant lived in Apartment C. T. at 714-718, 722-727, 728-729, 731-732, 734-
735, 737-739.
{¶35} Defense counsel's reference to his discussion with his adult daughters
resulted in his argument that he (defense counsel) was there "to try to do, the right
thing." T. at 714.
Richland County, Case No. 15-CA-114 14
{¶36} Upon review, we fail to find any deficiency by defense counsel as
complained herein.
{¶37} Assignment of Error III is denied.
{¶38} The judgment of the Court of Common Pleas of Richland County, Ohio is
hereby affirmed.
By Farmer, P.J.
Hoffman, J. and
Delaney, J. concur.
SGF/sg 811
State v. Johnson
Combined Opinion