[Cite as State v. Tell, 2011-Ohio-2661.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95425
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
LYNELL TELL
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART, REVERSED IN PART AND
VACATED IN PART
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-527825 and CR-531463
BEFORE: Sweeney, P.J., Rocco, J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: June 2, 2011
ATTORNEY FOR APPELLANT
Joseph Vincent Pagano, Esq.
P.O. Box 16869
Rocky River, Ohio 44116
ATTORNEYS FOR APPELLEE
William D. Mason, Esq.
Cuyahoga County Prosecutor
By: Patrick J. Lavelle, Esq.
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
JAMES J. SWEENEY, P.J.:
{¶ 1} Defendant-appellant Lynell Tell (“defendant”) appeals his convictions for drug
related offenses and his accompanying eight-and-one-half-year prison sentence. After
reviewing the facts of the case and pertinent law, we affirm in part, reverse and remand in part,
and vacate in part.
{¶ 2} On June 11, 2009, Cleveland Police arranged to purchase one ounce of crack
cocaine for $1,500 from Brandon Ward. Detective Scott Moran worked undercover and used
a confidential reliable informant (“the CRI”) to set up the controlled buy/bust. Ward had
acted as the middleman in providing Det. Moran and the CRI with drugs from a supplier on
two prior occasions, May 19 and May 26, 2009.
{¶ 3} Det. Moran testified that he was wired with a recording device on the day in
question. On the recorded transmission from the wire, Ward referred to the man who was to
supply the drugs as “Oats.” Evidence in the record shows that defendant’s nickname is
“Oats.”
{¶ 4} Det. Moran testified that the CRI was searched for money and contraband prior
to the buy/bust. The CRI called Ward, who instructed the CRI to go to an apartment complex
on Fulton Parkway for the buy. The CRI and Det. Moran met Ward in the parking lot and
waited for the drugs to be delivered. Approximately 30 minutes later, a gold Chevy Blazer
pulled into the parking lot and defendant got out of the vehicle. Defendant approached Ward.
Det. Moran gave Ward the buy money and gave the CRI a digital scale to weigh the drugs.
Defendant, Ward, and the CRI went upstairs to an apartment. Det. Moran waited downstairs
because the person who lived in the apartment did not know him. A few minutes later, the
CRI came back downstairs and handed Det. Moran a bag of crack cocaine.
{¶ 5} The CRI testified that Det. Moran gave him the buy money when defendant
arrived at the complex. The CRI, Ward, and defendant went into the apartment. Nancy
May, who is Ward’s girlfriend’s mother, lived in the apartment and was present at the time.
The CRI handed defendant the buy money. Defendant and Nancy went into the bathroom to
count the money, came back out, and defendant pulled an ounce of crack cocaine from his
pocket. The CRI weighed the drugs, left the apartment, and turned the drugs and scale over to
Det. Moran.
{¶ 6} Cleveland Police Lieutenant Michael Connelly testified that, after learning that
the drug buy was complete, he followed defendant, who was driving a gold Blazer. May was
also in defendant’s vehicle. Defendant stopped at a gas station and Lieut. Connelly arrested
him. The police seized approximately $1,300, which they found in defendant’s pocket, and
defendant’s cell phone. After searching defendant’s SUV, the police found approximately
two grams of crack cocaine in defendant’s pool cue carrier.
{¶ 7} May testified that, on June 11, 2009, she was living in an apartment on Fulton
Parkway. That evening, she planned to go to Lorain with defendant, who was a friend of hers,
to watch him play in a pool tournament. According to May, Ward brought the CRI to her
apartment that evening to buy drugs from defendant. She observed the CRI hand money to
Ward and Ward hand the money to defendant. She then saw defendant hand the drugs to
Ward, who handed them to the CRI. May denied that she or defendant went into the
bathroom at any time during this transaction.
{¶ 8} Ward testified that the CRI contacted him to purchase an ounce of crack cocaine
on June 11, 2009. Ward called defendant to supply the drugs, and defendant told Ward to
meet him at May’s apartment because defendant was picking her up for a pool tournament.
The CRI and Det. Moran met Ward at May’s apartment complex and waited for approximately
45 minutes for defendant to arrive. Upon defendant’s arrival, defendant, Ward, and the CRI
went up to May’s apartment. Det. Moran stayed downstairs. When they got inside the
apartment, the CRI gave defendant $1,500, and defendant handed the crack cocaine to the CRI,
who weighed it. Defendant and May went into the bathroom. The CRI left the apartment
and defendant gave Ward $200. Ward left to go home and defendant left with May.
{¶ 9} Cleveland Police Detective Leland Edwards was part of the team that arrested
defendant at the gas station on June 11, 2009. Det. Edwards testified that he searched
defendant’s vehicle and found drugs in defendant’s pool cue carrier. Specifically, he found a
“plastic baggie with [crack] cocaine and a lottery ticket with powdered cocaine,” which totaled
approximately two grams. Det. Edwards also found $1,340 in defendant’s pocket, $1,260 of
which was identified as the buy money. Asked about the money, defendant stated that it was
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for drugs he was supposed to buy for Ward. Additionally, defendant stated that the drugs
found in his pool cue carrier were for personal use.
{¶ 10} Defendant testified on his own behalf and stated that he went to May’s apartment
on the evening of June 11, 2009 to take her to his pool tournament. According to defendant,
Ward called him earlier that day. Defendant told Ward that he was picking May up later that
evening, and they could talk there. When defendant arrived at May’s apartment complex, he
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Subsequently, $200 of the buy money was found in Ward’s pocket.
saw Ward sitting on the steps. Defendant went upstairs to May’s apartment and used the
bathroom. When defendant came out of the bathroom, Ward was in May’s apartment. At
some point, the CRI came into the apartment. Defendant stated that Ward gave him $1,200 to
$1,300 to purchase crack cocaine. Defendant told Ward he would try, but he might not have
time because he was running late for the pool tournament. After about 15 minutes, the CRI
left, then Ward left, and finally, defendant and May left. Defendant denied bringing drugs
into the apartment and denied supplying the ounce of crack cocaine that the CRI turned over to
Det. Moran.
{¶ 11} Defendant and May stopped to get gas, and the police arrested him. When the
police searched defendant, they found approximately $1,300 in his pants pocket and two small
baggies of crack cocaine in defendant’s pool cue carrier. Defendant stated that he bought the
crack for personal use and that Ward gave him the money.
{¶ 12} On August 21, 2009, defendant was indicted for drug possession in violation of
R.C. 2925.11(A) for the ounce of crack cocaine; two counts of drug trafficking in violation of
R.C. 2925.03(A)(1) and (2) for the ounce of crack cocaine; drug possession in violation of R.C.
2925.11(A) for the two grams of crack cocaine; drug trafficking in violation of R.C.
2925.03(A)(2) for the two grams of crack cocaine; and possessing criminal tools in violation of
R.C. 2923.24(A).
{¶ 13} On June 17, 2010, after a bench trial, the court found defendant guilty of all
charges. On June 22, 2010, the court merged the three counts relating to the ounce of crack
cocaine, which are all first degree felonies. The court sentenced defendant to six years in
prison for these 10 felonies; 18 months in prison for the two counts related to the smaller
amount of crack cocaine, which are fourth degree felonies; and 12 months in prison for
possessing criminal tools, which is a fifth degree felony. The court ran these prison terms
concurrently, for a sentence of six years, to be served consecutive to 18-month and 12-month
prison sentences defendant received in two other cases, for an aggregate sentence of
eight-and-one-half years in prison.
{¶ 14} Defendant appeals and raises three assignments of error for our review.
{¶ 15} “I. Appellant’s convictions were not supported by sufficient evidence and the
trial court erred by denying his motions for acquittal.”
{¶ 16} When reviewing sufficiency of the evidence, an appellate court must determine,
“after viewing the evidence in a light most favorable to the prosecution, whether any
reasonable trier of fact could have found the essential elements of the crime proven beyond a
reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d 259, 273, 574 N.E.2d 492.
{¶ 17} Defendant does not appeal his conviction for possessing the two ounces of crack
found in his pool cue carrier; rather, he challenges his conviction for trafficking these drugs,
arguing that there was no evidence these drugs were for sale. Additionally, defendant argues
that there was insufficient evidence to convict him of possessing criminal tools.
{¶ 18} Defendant was convicted of trafficking the drugs found in his pool cue case in
violation of R.C. 2925.03(A)(2), which states that “[n]o person shall knowingly * * * [p]repare
for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled
substance, when the offender knows or has reasonable cause to believe that the controlled
substance is intended for sale or resale by the offender or another person.”
{¶ 19} The evidence in the record shows that, typically, small amounts of crack cocaine
are packaged for sale in plastic sandwich baggies. The police officers who searched
defendant’s car testified that two grams of crack cocaine were found in baggies inside
defendant’s pool cue case. Defendant testified that the crack was for his personal use and that
it was packaged in baggies because that is the way he bought it. The court found that the
small quantity was consistent with personal use. However, the drugs were packaged for sale,
they were hidden, and defendant was transporting them in his vehicle. Because defendant had
just completed the sale of an ounce of crack cocaine, this created an inference that defendant
was trafficking the two grams of crack as well.
{¶ 20} We cannot say that the court erred in finding sufficient evidence to convict
defendant of trafficking under these circumstances. However, it was error for the court to
sentence defendant for drug possession in violation of R.C. 2925.11(A) and drug trafficking in
violation of R.C. 2925.03(A)(2), relating to the same substance, because these are allied
offenses of similar import that should be merged for sentencing purposes. State v. Cabrales,
118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, ¶30. The court’s finding defendant
guilty of these two offenses remains intact. Pursuant to State v. Whitfield, 124 Ohio St.3d
319, 2010-Ohio-2, 922 N.E.2d 182, ¶25, we “reverse the judgment of conviction and remand
for a new sentencing hearing at which the state must elect which allied offense it will pursue
against the defendant.”
{¶ 21} Defendant next argues that the evidence was insufficient to convict him of
possessing criminal tools in violation of R.C. 2923.24(A), which states as follows: “No person
shall possess or have under the person’s control any substance, device, instrument, or article,
with purpose to use it criminally.”
{¶ 22} Defendant’s indictment for possessing criminal tools included money, a cell
phone, and miscellaneous personal papers. The court found insufficient evidence that the $80
of defendant’s personal money “was a criminal tool in this particular situation,” but found
defendant guilty of this offense in relation to his cell phone and the miscellaneous personal
papers.
{¶ 23} This court recently held that “[t]he ubiquitousness of cell phones is such that the
mere possession of a cell phone is not ipso facto proof that it was used in drug trafficking.”
State v. Byers, Cuyahoga App. No. 94922, 2011-Ohio-342, ¶9. In the instant case, there is
evidence that “calls were made” between defendant and Ward. When defendant was arrested,
his cell phone was confiscated, and this phone is the subject of the criminal tools charge. As
the court stated, “Whether or not it was that particular cell phone, yes, there is no evidence of
that * * *.” Under our holding in Byers, we find this evidence insufficient to show that
defendant used this cell phone criminally. Likewise, we find insufficient evidence to show
that defendant possessed “miscellaneous personal papers” with the purpose to use them
criminally. The only evidence of “papers” in this case is the lottery ticket that was found with
the drugs in defendant’s pool cue carrier.
{¶ 24} Defendant’s first assignment of error is overruled as to the drug trafficking
charge and sustained as to the offense of possessing criminal tools.
{¶ 25} In defendant’s second assignment of error, he argues as follows:
{¶ 26} “II. The convictions were against the manifest weight of the evidence.”
{¶ 27} The proper test for an appellate court reviewing a manifest weight of the
evidence claim is as follows:
{¶ 28} “The appellate court sits as the ‘thirteenth juror’ and, reviewing the entire record,
weighs all the reasonable inferences, considers the credibility of witnesses and determines
whether, in resolving conflicts in 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. Thompkins (1997), 78 Ohio St.3d 380, 387, 678 N.E.2d 541.
{¶ 29} Defendant argues that his convictions for drug trafficking and possession relating
to the ounce of crack cocaine and the buy/bust operation are against the manifest weight of the
evidence, because the testimony was inconsistent and unreliable about what transpired in May’s
apartment on June 11, 2009.
{¶ 30} In convicting defendant, the court noted that “some of [the] testimony is not
consistent in terms of total chronology and time frame,” and who exchanged the money and the
drugs. For example, there are inconsistencies as to whether Det. Moran handed the buy
money to the CRI or to Ward. Additionally, it is unclear if defendant or Ward handed the
drugs to the CRI. However, the court found that these inconsistencies were inconsequential
because the evidence clearly showed that $1,500 of buy money went into an apartment and one
ounce of crack cocaine came out of the apartment. The only people present were the CRI,
defendant, Ward, and May. The CRI was searched before entering the apartment, and he had
no drugs with him. Shortly after the transaction, defendant was arrested, and $1,260 of the
buy money was in his pocket. The CRI, Ward, and May testified that defendant brought the
drugs into the apartment, and Ward referred to his supplier as “Oats,” which is defendant’s
nickname.
{¶ 31} We cannot say that the court lost its way in convicting defendant of drug
trafficking and possession concerning the ounce of crack cocaine involved in the controlled
buy/bust. Accordingly, defendant’s second assignment of error is overruled.
{¶ 32} In defendant’s third and final assignment of error, he argues that:
{¶ 33} “III. The trial court’s imposition of consecutive sentences is contrary to law
and an abuse of discretion.”
{¶ 34} The Ohio Supreme Court set forth the standard for reviewing felony sentencing
in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. See, also, State v.
Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. Kalish, in a plurality decision, holds
that appellate courts must apply a two-step approach when analyzing alleged error in a trial
court’s sentencing. “First, they must examine the sentencing court’s compliance with all
applicable rules and statutes in imposing the sentence to determine whether the sentence is
clearly and convincingly contrary to law. If this first prong is satisfied, the trial court’s decision
shall be reviewed under an abuse-of-discretion standard.” Id. at ¶4.
{¶ 35} In the instant case, defendant argues that the court erred by running defendant’s
six-year prison sentence consecutive to his prison sentences in two other felony cases, because
it “did not make necessary statutory findings and did not provide sufficient reasons for
imposing consecutive prison terms * * *.” While this appeal was pending, the Ohio Supreme
Court held that “trial court judges are not obligated to engage in judicial fact-finding prior to
imposing consecutive sentences * * *.” State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320,
941 N.E.2d 768, ¶39.
{¶ 36} Defendant does not argue that his sentence is outside of the statutory range for
the offenses of which he was convicted. Accordingly, taking Hodge into consideration, we
find that defendant’s aggregate sentence of eight-and-one-half years in prison is not contrary to
law under the first prong of Kalish.
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{¶ 37} Turning to the second prong of Kalish, the court took the following things into
consideration when sentencing defendant: The court was familiar with the case at hand, as well
as the other two cases for which defendant was being sentenced. Defendant had a prior
criminal history, including several drug trafficking convictions. Defendant previously served
time in prison and showed “a pattern of repeat conduct * * *, having chosen drug trafficking as
a profession or a livelihood.”
{¶ 38} The court addressed defendant and stated, “What you’re doing is feeding an ill
to society that is causing serious problems to our whole social structure. The people that
come before this Court addicted to drugs, to many extents, their lives are forever ruined by
drugs.” The court found that sentencing defendant to prison was mandatory and “necessary to
protect the public and not demean the seriousness of the offense.” Additionally, the court
found “consecutive sentences necessary to fulfill the purposes and principles of felony
sentencing.”
Notwithstanding the failure to merge defendant’s drug possession and trafficking convictions
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for sentencing purposes as discussed earlier in this opinion.
{¶ 39} Upon review, we find that the court acted within its discretion in sentencing
defendant to consecutive prison terms for three drug related cases, and defendant’s third
assignment of error is overruled.
{¶ 40} Defendant’s convictions relating to the one ounce of crack cocaine and the
buy/bust operation are affirmed. The judgment of conviction for drug possession and drug
trafficking relating to the two grams of crack cocaine found in defendant’s pool cue carrier are
reversed and remanded for a new sentencing hearing at which the state must elect which
offense to pursue. Defendant’s conviction for possessing criminal tools and the
accompanying sentence are vacated for lack of sufficient evidence. As the court sentenced
defendant to concurrent prison terms for the convictions in the case at hand, defendant’s
aggregate prison sentence remains the same.
Judgment affirmed in part, reversed and remanded in part, and vacated in part.
It is ordered that appellee and appellant split 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 in part, any bail pending appeal is
terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
JAMES J. SWEENEY, PRESIDING JUDGE
KENNETH A. ROCCO, J., and
EILEEN A. GALLAGHER, J., CONCUR