State v. Vu , 2012 Ohio 746 ( 2012 )

[Cite as State v. Vu, 2012-Ohio-746.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 11CA0042-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
LAN T. VU COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellant CASE No. 06-CR-0374
DECISION AND JOURNAL ENTRY
Dated: February 27, 2012
WHITMORE, Judge.
{¶1} Defendant-Appellant, Lan Vu, appeals from her convictions in the Medina
County Court of Common Pleas. This Court affirms.
I
{¶2} This Court previously recounted the facts underlying this matter in several related
appeals. See State v. Hoang, 9th Dist. No. 09CA0061-M, 2010-Ohio-6054; State v. Ha, 9th Dist.
No. 07CA0089-M, 2009-Ohio-1134. In essence, agents from the Medway Drug Enforcement
Agency (“Medway”) apprehended Vu in connection with a drug ring after simultaneously
executing search warrants at four apartments and four houses. Vu and her husband, Lai Vu
(collectively “the Vus”), were living at Stoneybrook Apt. 104 when Medway agents searched all
of the residences on June 15, 2006. Medway confiscated over 23,000 grams of marijuana from
the eight locations that its agents searched as well as numerous documents tying the members of
the drug ring to one another.
2
{¶3} Despite reporting a joint income of just over $20,000 for 2004 and 2005, the Vus
had numerous high-end items in their apartment as well as a substantial sum of cash. Moreover,
they owned several vehicles; made large monthly deposits, at times in excess of $10,000; and
paid a monthly mortgage of $1,600 for a house on Red Clover Lane. The Red Clover Lane
property, which was titled in Lai Vu’s name, was one of the large-scale marijuana grow houses
that Medway agents uncovered when they executed their warrants.
{¶4} On June 23, 2006, a grand jury indicted Vu on one count of possessing marijuana,
in violation of R.C. 2925.11(A)(C)(3)(f), and four attendant forfeiture specifications. A
supplemental indictment, filed August 17, 2006, added the following charges: (1) conspiracy to
commit the crime of possessing marijuana, in violation of R.C. 2923.01(A)(1) and
2925.11(A)(C)(3)(f); (2) conspiracy to commit the crime of possessing marijuana, in violation of
R.C. 2923.01(A)(2) and 2925.11(A)(C)(3)(f); (3) complicity to commit the crime of possessing
marijuana, in violation of R.C. 2923.03(A)(2) and 2925.11(A)(C)(3)(f); (4) illegal cultivation of
marijuana, in violation of R.C. 2925.04(A)(C)(5)(f); (5) conspiracy to commit the illegal
cultivation of marijuana, in violation of R.C. 2923.01(A)(1) and 2925.04(A)(C)(5)(f); (6)
conspiracy to commit the illegal cultivation of marijuana, in violation of R.C. 2923.01(A)(2) and
2925.04(A)(C)(5)(f); and (7) complicity to commit the illegal cultivation of marijuana, in
violation of R.C. 2923.03(A)(2) and 2925.04(A)(C)(5)(f). All additional seven charges also
contained forfeiture specifications under R.C. 2925.42(A)(1). The trial court later granted the
State’s request to consolidate Vu’s trial with her husband, Lai Vu’s, trial on the basis that the
matters arose from the same circumstances and involved the same evidence.
{¶5} After an extended period of discovery and motion filing, a jury trial began on
May 7, 2007. The jury found Vu guilty on all eight counts. It further determined that all of the
3
property the State sought, with the exception of a wedding ring, was subject to forfeiture. The
State elected to pursue a sentence only on the eighth count, as all of the counts were allied
offenses of similar import. The trial court sentenced Vu to eight years in prison, and she
appealed.
{¶6} This Court remanded the matter to the trial court, as the court’s sentencing entry
contained a defective post-release control notification. State v. Vu, 9th Dist. Nos. 07CA0094-M,
07CA0095-M, 07CA0096-M, 07CA0107-M & 07CA0108-M, 2009-Ohio-2945. Upon remand,
the trial court held a resentencing hearing and issued another sentencing entry. Vu appealed, but
this Court dismissed her second appeal by way of journal entry because the trial court did not
clearly and unambiguously order forfeiture in its post-remand entry. State v. Vu, 9th Dist. Nos.
09CA0062-M & 09CA0101-M (Mar. 9, 2011). The trial court issued its final sentencing entry
on March 11, 2011.
{¶7} Vu now appeals and raises fourteen assignments of error for our review. For ease
of analysis, we consolidate and rearrange several of the assignments of error.
II
Assignment of Error Number One
THE TRIAL COURT ERRED IN FAILING TO GRANT APPELLANT’S
MOTION TO DISMISS FOR VIOLATION OF RIGHTS TO SPEEDY TRIAL.
{¶8} In her first assignment of error, Vu argues that the trial court erred by failing to
grant her motion to dismiss due to a speedy trial violation. We disagree.
{¶9} “The right of an accused to a speedy trial is recognized by the Constitutions of
both the United States and the state of Ohio.” State v. Pachay, 64 Ohio St. 2d 218, 219 (1980).
Ohio’s speedy trial statute provides that a person charged with a felony must be brought to trial
within two hundred seventy days of his arrest. R.C. 2945.71(C)(2). Yet, “each day during which
4
the accused is held in jail in lieu of bail on the pending charge shall be counted as three days.”
R.C. 2945.71(E). Accordingly, if a person charged with a felony remains in jail in lieu of
posting bond, that person must be brought to trial within ninety days of his arrest. Id. “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.” R.C. 2945.73(B). Under certain conditions, however, the time within
which an accused must be brought to trial can be tolled. State v. Dalton, 9th Dist. No.
09CA009589, 2009-Ohio-6910, ¶ 21. Speedy trial time can be tolled for “[a]ny period of delay
necessitated by reason of a * * * motion, proceeding, or action made or instituted by the
accused.” R.C. 2945.72(E). Additionally, speedy trial time can be tolled for “[t]he period of any
continuance granted on the accused’s own motion, and the period of any reasonable continuance
granted other than upon the accused’s own motion.” R.C. 2945.72(H).
{¶10} Vu remained in jail from the date of her arrest until her trial date. She, therefore,
was entitled to R.C. 2945.71’s triple-count provision and, absent some tolling event(s), the State
had to bring her to trial within 90 days. See R.C. 2945.71(E). Vu was arrested on June 15, 2006,
and her trial began on May 7, 2007; 326 days later for purposes of her speedy trial rights. See
State v. Browand, 9th Dist. No. 06CA009053, 2007-Ohio-4342, ¶ 12 (“Time is calculated to run
the day after the date of arrest.”). Nevertheless, the record does not support Vu’s assertion that
her speedy trial rights were violated.
{¶11} Vu filed numerous motions on July 18 and 19, 2006, including requests for a bill
of particulars, discovery, and a reduction of her bond. At that point, just over 30 days had
elapsed since Vu’s arrest, and her motions constituted tolling events. State v. Murray, 9th Dist.
No. 03CA008330, 2004-Ohio-4966, ¶ 22; R.C. 2945.72(E). Thereafter, Vu filed a large number
5
of motions throughout the course of the proceedings, causing the court to hold several hearings.
Two noteworthy motions were Vu’s suppression motion, filed July 25, 2006, and her request for
an interpreter, filed August 30, 2006. The court was unable to resolve the interpreter issue until
February 22, 2007 due to scheduling issues and difficulty finding a qualified interpreter. In the
interim, Vu requested and received more than one continuance and filed several more motions,
including additional requests for discovery, the production of certain jail recordings, and a more
detailed bill of particulars. See id.; R.C. 2945.72(H). The court continued the trial date three
times at the request of the defense and had to reschedule the suppression hearing several times,
due to the need for the interpreter. At the court’s request, Vu’s counsel filed a list of all of Vu’s
outstanding motions on April 23, 2007. The list contained nine outstanding motions filed
between July 18, 2006, and March 20, 2007. Further, even after the court ruled on several of the
motions within days of receiving the list, Vu’s counsel filed three additional motions to suppress
on April 27, 2007, ten days before trial.
{¶12} Vu sought to dismiss this case prior to trial based on a speedy trial violation. The
court entered a detailed entry denying her motion on July 2, 2007, setting forth its calculations
and the applicable tolling events. Vu does not take issue with any particular calculation or the
court’s entry. Instead, she argues that her speedy trial time expired based strictly on her 1)
having received one continuance, and 2) assigning a 21 day “reasonable response time” to each
motion she filed to calculate her speedy trial time. Vu, however, requested more than one
continuance and has not provided any supporting case law or analysis as to why 21 days would
constitute a “reasonable response time” for every motion she filed, regardless of its content or
complexity. See App.R. 16(A)(7). Additionally, she has not identified any particular motion
upon which the State or trial court allegedly failed to act in a timely manner. Id. As this Court
6
has repeatedly held, “[i]f an argument exists that can support [an] assignment of error, it is not
this [C]ourt’s duty to root it out.” Cardone v. Cardone, 9th Dist. No. 18349, 1998 WL 224934,
*8 (May 6, 1998). Vu’s first assignment of error is overruled.
Assignment of Error Number Two
THE INDICTMENT IS SERIOUSLY DEFECTIVE ON ITS FACE IN THAT IT:
FAILS TO PROPERLY SPECIFY A SUBSTANTIAL, OVERT ACT
UNDERTAKEN IN FURTHERANCE OF THE CONSPIRACY; FAILS TO
ALLEGE A SUBSTANTIAL, OVERT ACT THAT IS CRIMINAL IN
NATURE; ALLEGES AS A SUBSTANTIAL, OVERT ACT CONDUCT
CONSTITUTIONALLY PROTECTED; AND, MAKES DISCRIMINATING
ALLEGATIONS OF RACIAL PROFILING.
{¶13} In her second assignment of error, Vu argues that her indictment was defective.
Specifically, she argues that her indictment: (1) failed to identify a substantial, overt act for
purposes of her conspiracy charge; (2) improperly included constitutionally-protected behavior
as one basis for her conspiracy charge; (3) and stemmed from racial profiling.
{¶14} Although it is underdeveloped, we initially address Vu’s argument that her
conspiracy convictions1 are void. A conspiracy conviction is void if the indictment upon which
it is prefaced does not “allege some specific, substantial, overt act performed in furtherance of
the conspiracy.” State v. Childs, 88 Ohio St. 3d 194 (2000), syllabus. Accord State v. Callahan,
9th Dist. No. 20432, 2001 WL 1240138, *4 (Oct. 17, 2001). Here, however, Vu’s indictment
identified several overt acts, charged in the alternative. It is therefore distinguishable from the
indictment in Childs and Vu’s conspiracy convictions are not void on that basis. See Childs, 88
Ohio St. 3d at 197-198 (noting that the indictment at issue failed to identify any overt act
performed in furtherance of the conspiracy).
1
Although this Court recognizes that Vu was not “convicted” of conspiracy, as it was an allied
offense for which she did not receive a sentence, we refer to it as a “conviction” for ease of
analysis.
7
{¶15} Vu never challenged her indictment in the court below for the reasons she asserts
in her assignment of error. In State v. Hoang, this Court addressed the same assignment of error,
which arose from the same procedural context. Hoang, 2010-Ohio-6054, at ¶ 18-21. We
declined to address Hoang’s arguments, as he did not assert that his indictment was defective in
the trial court and failed to argue plain error on appeal. Id. at ¶ 20-21. The same result must
control here. “Because [Vu] forfeited [these] argument[s] below and has not argued plain error
on appeal, we will not address [their] merits.” Id. at ¶ 21. Vu’s second assignment of error is
overruled.
Assignment of Error Number Three
THE TRIAL COURT ERRED IN PERMITTING THE INDICTMENT TO BE
AMENDED FROM A SPECIFIC GRAND JURY FINDING OF 43,000 GRAMS
OF MARIJUANA TO “IN EXCESS OF 20,000 GRAMS[.]”
{¶16} In her third assignment of error, Vu argues that the trial court erred by permitting
the State to amend her indictment. We disagree.
{¶17} Crim.R. 7(D) permits the amendment of indictments and provides:
The court may at any time before, during, or after a trial amend the indictment * *
* in respect to any defect, imperfection, or omission in form or substance, or of
any variance with the evidence, provided no change is made in the name or
identity of the crime charged. If any amendment is made to the substance of the
indictment, * * * or to cure a variance between the indictment * * * and the proof,
the defendant is entitled to a discharge of the jury on the defendant’s motion, if a
jury has been impaneled, and to a reasonable continuance, unless it clearly
appears from the whole proceedings that the defendant has not been misled or
prejudiced by the defect or variance in respect to which the amendment is made,
or that the defendant’s rights will be fully protected by proceeding with the trial,
or by a postponement thereof to a later day with the same or another jury.
This Court will not reverse a trial court’s decision to allow an amendment under Crim.R. 7(D)
absent proof that the amendment prejudiced the defense. State v. Dudukovich, 9th Dist. No.
8
05CA008729, 2006-Ohio-1309, ¶ 16, quoting State v. Beach, 148 Ohio App. 3d 181, 2002-Ohio-
2759, ¶ 23 (1st Dist.).
{¶18} Vu’s original indictment contained one count charging her with the possession of
marijuana in an amount “exceeding twenty thousand grams, to wit: 40,300 grams.” Her
supplemental indictment added seven charges, but all of those charges limited their description
of the marijuana to an amount “exceeding twenty thousand grams.” The trial court later
permitted the State to amend the possession of marijuana charge, consistent with the remaining
charges, to eliminate “to wit: 40,300 grams” and leave the language “exceeding twenty thousand
grams.” The amendment occurred March 13, 2007, almost two full months before trial.
{¶19} Vu concedes that the amendment to count one did not change the charge or
penalty for the charge. See State v. Hickman, 9th Dist. No. 20883, 2002-Ohio-3406, ¶ 42
(concluding that an amendment, pursuant to Crim.R. 7(D), was proper where it did not change
the name or identity of the charge). She asserts, absent any further elaboration, that the
amendment violated her constitutional rights because it struck a “specific factual finding” of the
grand jury. Yet, she fails to point to any particular prejudice she suffered as a result of the
amendment. See Dudukovich at ¶ 16. Count one already contained the language “exceeding
twenty thousand grams.” The amendment merely eliminated the more specific language
following that amount and made the language in count one more consistent with language in the
other seven counts. Given the nature of the amendment and the fact that it occurred almost two
months before trial, we cannot conclude that Vu suffered any prejudice here. State v. Jones, 9th
Dist. No. 18046, 1997 WL 775759, *3 (Oct. 29, 1997). Accordingly, the trial court did not err
by permitting the State to amend count one. Vu’s third assignment of error is overruled.
9
Assignment of Error Number Four
THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO
SUPPRESS ALL EVIDENCE RESULTING FROM A SERIES OF SEARCH
WARRANTS FOR LACK OF STANDING.
Assignment of Error Number Five
THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO
SUPPRESS ALL EVIDENCE RESULTING FROM THE SEARCH WARRANT
OF HER RESIDENCE APARTMENT AND RESIDENCE HOUSE WHEN
FAILING FOR SPECIFICITY, SEIZURE REQUIREMENTS, AND
PROBABLE CAUSE.
Assignment of Error Number Ten
THE TRIAL COURT ERRED IN FAILING TO GRANT APPELLANT’S
MOTION TO SUPPRESS SEARCH WARRANTS BASED FROM
INVESTIGATION AND SECRETIVE INTELLIGENCE REPORTS.
{¶20} In her fourth, fifth, and tenth assignments of error, Vu argues that the trial court
erred by denying her motions to suppress. We disagree.
{¶21} The Ohio Supreme Court has held that:
Appellate review of a motion to suppress presents a mixed question of law and
fact. When considering a motion to suppress, the trial court assumes the role of
trier of fact and is therefore in the best position to resolve factual questions and
evaluate the credibility of witnesses. State v. Mills, 62 Ohio St. 3d 357, 366
(1992). Consequently, an appellate court must accept the trial court’s findings of
fact if they are supported by competent, credible evidence. State v. Fanning, 1
Ohio St. 3d 19 (1982). Accepting these facts as true, the appellate court must then
independently determine, without deference to the conclusion of the trial court,
whether the facts satisfy the applicable legal standard. State v. McNamara, 124
Ohio App. 3d 706 (4th Dist.1997).
State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, ¶ 8. Accordingly, this Court reviews
the trial court’s factual findings for competent, credible evidence and considers the court’s legal
conclusions de novo. State v. Conley, 9th Dist. No. 08CA009454, 2009-Ohio-910, ¶ 6, citing
Burnside at ¶ 8.
10
Standing
The Fourth Amendment to the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized.
Accord Ohio Constitution, Article I, Section 14.
With respect to Fourth Amendment standing, this Court has held:
A defendant who seeks the suppression of evidence on the basis that the police
obtained it pursuant to an illegal search and seizure “bears the burden of proving
that he had a legitimate expectation of privacy.” State v. Blackert, 9th Dist. No.
15409, 1992 WL 174642, *3 (July 22, 1992). “[S]uppression of the product of a
Fourth Amendment violation can be successfully urged only by those whose
rights were violated by the search itself[.]” Alderman v. United States, 394 U.S.
165, 171-172 (1969). “Fourth Amendment rights are personal in nature and may
not be vicariously asserted by others.” State v. Dennis, 79 Ohio St. 3d 421, 426
(1997). “A person who is aggrieved by an illegal search and seizure only through
the introduction of damaging evidence secured by a search of a third person’s
premises or property has not had any of his Fourth Amendment rights infringed.”
Rakas v. Illinois, 439 U.S. 128, 134 (1978).
State v. Redding, 9th Dist. No. 10CA0018-M, 2010-Ohio-4286, ¶ 8. “[W]hen a defendant
testifies in support of a motion to suppress evidence on Fourth Amendment grounds, [her]
testimony may not thereafter be admitted against [her] at trial on the issue of guilt unless [she]
makes no objection.” Simmons v. United States, 390 U.S. 377, 394 (1968).
{¶22} The trial court concluded that Vu lacked standing to challenge the warrants issued
for residences at the following locations: Troon Avenue, Baywood Drive, Autumnwood Lane,
Grand Lake Drive Apt. 102, and Stoneybrook Lane Apts. 106 and 107. The State conceded that
Vu had standing to challenge the searches performed at the house her husband owned on Red
Clover Lane and their apartment, Stoneybrook Lane Apt. 104, but asserted that Vu did not have a
constitutionally protected interest in the remaining locations. At a hearing before the trial court,
11
Vu’s counsel repeatedly represented that he did not have any witness to establish Vu’s privacy
interest in the other locations. As such, the trial court concluded that Vu failed to meet her
burden on the issue of standing and denied her motion. See, e.g., State v. McCraney, 9th Dist.
No. 17683, 1996 WL 688257, *3 (Nov. 27, 1996) (holding that defendant lacked standing to
challenge a search because he failed to establish a privacy interest).
{¶23} Vu asserted in the court below that the trial court placed her in a “Catch-22” by
insisting that she prove a possessory interest in the properties, as any such proof would aid the
State’s case. She also avers on appeal that it is illogical that she was barred from seeking
suppression on the basis that she lacked a possessory interest, but was found guilty of possession,
for which there had to be evidence of a possessory interest. The answer to both arguments lies in
the difference between the suppression stage and the trial stage.
{¶24} Although the State bore the burden of proof at trial, it was Vu’s burden to prove
that she possessed a legitimate expectation of privacy for purposes of suppression. Redding,
2010-Ohio-4286, at ¶ 8, quoting Blackert, 1992 WL 174642, at *3. Further, any evidence she
introduced at the suppression stage to prove that she had a possessory interest would not have
been admissible against her at trial on the issue of guilt. Simmons, 390 U.S. at 394. The trial
court explained both propositions of law to Vu’s counsel at the suppression stage. Even so, Vu’s
counsel maintained that he did not have any testimony to offer, the record spoke for itself, and
Vu automatically should be entitled to challenge the applicable search warrants, given that the
State intended to pursue possession charges against her. The United States Supreme Court has
specifically rejected the notion of “automatic standing,” however, and it was Vu’s burden to
demonstrate a privacy interest. State v. Johnson, 63 Ohio App. 3d 345, 347-348 (9th Dist.1989),
citing United States v. Salvucci, 448 U.S. 83, 91-93 (1980). Because she failed to carry her
12
burden, the trial court did not err by concluding that she lacked standing to challenge the
warrants issued for the houses at Troon Avenue, Baywood Drive, and Autumnwood Lane and
the apartments at Grand Lake Drive and Stoneybrook Lane. Vu’s fourth assignment of error is
overruled.
Warrant Specificity
{¶25} A warrant must be based on probable cause, supported by an oath or affirmation,
and contain a particular description of “the place to be searched, and the persons or things to be
seized.” U.S. Constitution, Fourth Amendment. In seeking to suppress evidence, a defendant
may challenge the probable cause underlying a warrant, the particularity of the warrant itself, or
both. See State v. Armstead, 9th Dist. No. 06CA0050-M, 2007-Ohio-1898, ¶ 8. An affidavit
must provide a “substantial basis for concluding that probable cause existed.” State v. Walters,
9th Dist. No. 25391, 2011-Ohio-6247, ¶ 9, citing State v. George, 45 Ohio St. 3d 325 (1989),
paragraph two of the syllabus. Probable cause exists if the facts and circumstances, as gathered
from a trustworthy source, establish a “reasonable ground for belief of guilt.” Walters at ¶ 11,
quoting Carroll v. United States, 267 U.S. 132, 161 (1925). “In determining whether a warrant
is specific enough, the key inquiry is whether the warrant could reasonably have described the
items more precisely.” State v. Overholt, 9th Dist. No. 02CA0108-M, 2003-Ohio-3500, ¶ 14.
“A broad and generic description is valid if it ‘is as specific as circumstances and nature of the
activity under investigation permit’ and enables the searchers to identify what they are
authorized to seize.” State v. Armstead, 9th Dist. No. 06CA0050-M, 2007-Ohio-1898, ¶ 10,
quoting United States v. Harris, 903 F.2d 770, 775 (10th Cir.1990).
{¶26} Vu argues that the search warrant upon which the State relied to search 3384 Red
Clover Lane and Stoneybrook Lane Apt. 104 was not supported by probable cause and lacked
13
adequate specificity. See Armstead at ¶ 8. The warrant Vu challenges, however, is not a part of
the record on appeal. The record reflects that two sets of warrants were issued in this case: (1)
thermal imaging warrants that were signed on or about June 7, 2006; and (2) search warrants for
the search and seizure of property that were signed on or about June 15, 2006. Although both
sets of warrants were discussed at hearings before the trial court, only the thermal imaging
warrant is a part of the record. The warrant(s) issued on or about June 15, 2006 were never filed
in the court below so as to make the warrant(s) part of the record.
{¶27} It is an appellant’s burden to ensure that the record is complete on appeal. State v.
Leason, 9th Dist. No. 25566, 2011-Ohio-6591, ¶ 14. “In the absence of a complete record, an
appellate court must presume regularity in the trial court’s proceedings.” State v. Tillman, 119
Ohio App. 3d 449, 454 (9th Dist.1997). Because the warrant and affidavit Vu challenges are not
a part of the record, we cannot review their contents and must presume regularity in the
proceedings. State v. Moore, 9th Dist. No. 24126, 2008-Ohio-3955, ¶ 11. Vu’s fifth assignment
of error is overruled.
Intelligence Reports
{¶28} Lastly, Vu argues that the trial court erred by denying her motion to suppress
search warrants that were based upon “secretive intelligence reports.” She claims that the use of
the reports violated her right to confront witnesses and that the State’s investigation stemmed
from improper racial profiling. Yet, Vu offers no case law on the first point and no support in
the record for the second point. Her argument that the State engaged in racial profiling is based
upon “witness testimony in a co-defendant’s trial.” As this Court has repeatedly held, an
appellant bears the burden of providing this Court with applicable legal authority and citations to
the record in support of those legal propositions. See, e.g., State v. Anderson, 9th Dist. No.
14
25377, 2011-Ohio-563, ¶ 11, citing App.R. 16(A)(7). “If an argument exists that can support
[an] assignment of error, it is not this [C]ourt’s duty to root it out.” Cardone v. Cardone, 9th
Dist. No. 18349, 1998 WL 224934, *8 (May 6, 1998). Vu’s tenth assignment of error is
overruled.
Assignment of Error Number Six
THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION
REQUESTING A MORE-SPECIFIC BILL OF PARTICULARS.
{¶29} In her sixth assignment of error, Vu argues that the trial court erred by not
requiring the State to provide her with a more specific bill of particulars. We disagree.
The purpose of the bill of particulars is to inform an accused of the exact nature of
the charges against him so that he can prepare his defense thereto. It is not
intended to provide the defendant with a synopsis of the evidence against him. * *
* A bill of particulars is used when the indictment is so lacking in specific
information that the defendant is unable to adequately prepare his defense.”
(Internal quotations and citations omitted.) State v. Tebcherani, 9th Dist. No. 19535, 2000 WL
1729456, *6 (Nov. 22, 2000). A defendant must request a bill of particulars within twenty-one
days of the arraignment. State v. Wigle, 9th Dist. No. 25593, 2011-Ohio-6239, ¶ 26, citing
Crim.R. 7(E). “If a defendant requests specific times, dates, or places in a bill of particulars, a
trial court must consider whether the [S]tate possesses the desired information and whether the
information is material to the preparation of a defense.” State v. Sandoval, 9th Dist. No.
95CA006150, 1996 WL 107002, *2 (Mar. 13, 1996), citing State v. Lawrinson, 49 Ohio St. 3d
238, 239 (1990).
{¶30} The only bill of particulars the State filed in this matter pertains to the charge and
forfeiture specifications in Vu’s initial indictment. In her motion for an order to compel a more
specific bill of particulars, Vu requested that the State provide information about the charges in
her supplemental indictment, not her original indictment. The supplemental indictment was filed
15
on August 17, 2006, and Vu was arraigned on the supplemental indictment on August 25, 2006.
She did not file her motion for a more specific bill of particulars until October 16, 2006. Further,
although the motion was framed as one seeking more specific information, it was in reality the
first bill of particulars request that Vu made for the charges in the supplemental indictment.
Because she made the request more than twenty-one days after her arraignment on the
supplemental charges, her request was untimely. Wigle at ¶ 26; Crim.R. 7(E).
{¶31} To the extent that the trial court could have ordered the State to produce a bill of
particulars on the supplemental indictment, Vu has not shown any actual prejudice as a result of
its failure to do so. See Crim.R. 7(E) (permitting court to order the State to produce a bill of
particulars, irrespective of the twenty-one day time limit); State v. Adams, 9th Dist. No. 2621,
1992 WL 36156, *1 (Feb. 26, 1992) (holding that trial court did not err by refusing to order a bill
of particulars where the nature of the charges were known and no prejudice to the defense
resulted). The State provided Vu with a large amount of discovery during the course of the
proceedings, and specific dates and times were difficult to discern due to the complexity of the
conspiracy. See Sandoval, 1996 WL 107002, *2; State v. McEwen, 9th Dist. No. 93CA005767,
1995 WL 231404, *8-9 (Apr. 19, 1995); State v. Gingell, 7 Ohio App. 3d 364, 368 (1st
Dist.1982). Vu’s only argument is that, had the State provided more specific information, she
might have been able to provide alibi evidence. Yet, Vu never filed a notice of intent to rely on
an alibi or presented any testimony in her own defense at trial. See State v. Sellards, 17 Ohio
St.3d 169, 172-173 (1985) (rejecting defendant’s argument that the State’s lack of specificity
was detrimental to his purported alibi defense). Her assertion that she might have produced alibi
testimony is wholly speculative. Based on our review of the record, we must conclude that the
16
trial court did not err by not ordering the State to produce a bill of particulars for the
supplemental indictment. Vu’s sixth assignment of error is overruled.
Assignment of Error Number Eleven
THE TRIAL COURT ERRED IN FAILING TO GRANT APPELLANT’S
MOTION TO DISCLOSE THE IDENTITY OF THE INFORMANT(S).
{¶32} In her eleventh assignment of error, Vu argues that the trial court erred by
refusing to order the State to disclose the identity of its confidential informants. We disagree.
{¶33} Vu filed a motion to compel the disclosure of any confidential informants shortly
after her arraignment. Though the parties discussed Vu’s motion on the record before trial, the
record reflects that the trial court never expressly ruled on the motion. “[W]hen a trial court fails
to issue a ruling on a pretrial motion, this Court presumes that the motion was denied.” State v.
Jackson, 9th Dist. Nos. 24463 & 24501, 2009-Ohio-4336, ¶ 14.
{¶34} “The identity of an informant must be revealed to a criminal defendant when the
testimony of the informant is vital to establishing an element of the crime or would be helpful or
beneficial to the accused in preparing or making a defense to criminal charges.” State v.
Williams, 4 Ohio St. 3d 74 (1983), syllabus. Accord Roviaro v. United States, 353 U.S. 53, 60-62
(1957).
[A] request for disclosure of an informant’s identity requires a case by case
balancing of the accused’s right to confront his accusers and cross-examine the
witnesses against him, and the protection of citizens who communicate their
knowledge of the commission of crimes to law enforcement officials. Thus, when
an informant’s degree of participation is such that he is essentially a witness for
the state, the balance tilts in favor of disclosure. Where disclosure would not be
helpful or beneficial to the accused, on the other hand, the identity of the
informant need not be disclosed.
(Internal citations omitted.) State v. Smith, 9th Dist. No. 21069, 2003-Ohio-1306, ¶ 63, citing
Williams, 4 Ohio St. 3d at 75-76. “[W]here the informant merely provided information
17
concerning the offense,” the courts “have quite consistently held that disclosure is not required.”
State v. Bays, 87 Ohio St. 3d 15, 25 (1999), quoting 3 LaFave & Israel, Criminal Procedure,
Section 23.3 (1984). “The defendant bears the burden of establishing the need for disclosure.”
Smith at ¶ 63.
{¶35} In investigating Vu on the charges that led to her convictions, the State relied
upon two confidential informants. The first informant was from Washington and provided
Medway with information about a possible marijuana ring. The second was from Pennsylvania
and provided the State with information that an individual, who was later tried as one of Vu’s co-
conspirators, purchased a large amount of marijuana grow equipment. Neither informant
testified at trial. Nevertheless, Vu argues that the State’s failure to disclose their identities
deprived her of a fair trial. She avers that the identity of the informants was relevant evidence
from which she might have gained additional information to aid in the preparation of her
defense. Vu fails to explain, however, why the identity of the informants would have been
helpful. See App.R. 16(A)(7). The informants here merely provided information about the
offenses at issue and acted as a catalyst for the State’s investigation. Medway agents performed
months of surveillance upon Vu and her co-conspirators to build the case against them,
independent of the information they received from the informants. Vu’s mere speculation that
the testimony of the informants was necessary to assist her in preparing her defense is
insufficient. See State v. Moon, 74 Ohio App. 3d 162, 168 (9th Dist.1991); State v. Williams, 9th
Dist. No. 1910, 1991 WL 6149, *1-2 (Jan. 16, 1991); State v. Allen, 9th Dist. No. 1814, 1990
WL 40197, *1-2 (Apr. 4, 1990). Accordingly, the State should not have been required to
disclose the identity of its informants. Vu’s eleventh assignment of error is overruled.
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Assignment of Error Number Nine
THE TRIAL COURT ERRED IN PERMITTING CONSOLIDATION AND
DENYING APPELLANT’S MOTION TO SEVER TRIALS.
{¶36} In her ninth assignment of error, Vu argues that the trial court erred by denying
her motion to sever the trials in this matter. We conclude that Vu forfeited this argument by
failing to renew her motion to sever in the court below.
{¶37} “It is well-settled that the law favors joinder.” State v. Merriweather, 9th Dist.
No. 97CA006693, 1998 WL 239773, *3 (May 6, 1998). While Crim.R. 8 governs the joinder of
multiple offenses in a single indictment, Crim.R. 14 “addresses the joinder of completely
separate indictments.” State v. Hatfield, 9th Dist. No. 23716, 2008-Ohio-2431, ¶ 14. “A
defendant claiming prejudice by the joinder of offenses may move for severance under Crim.R.
14.” Merriweather, 1998 WL 239773, at *3. “If it appears that a defendant * * * is prejudiced
by a joinder of * * * defendants * * * for trial together * * *, the court shall * * * grant a
severance of defendants, or provide such other relief as justice requires.” Crim.R. 14. To
preserve a claimed error under Crim.R. 14, however, a defendant must renew his or her motion
to sever either at the close of the State’s case or at the conclusion of all of the evidence. State v.
Owens, 51 Ohio App. 2d 132, 146 (9th Dist.1975). The failure of a defendant to renew the
motion results in a forfeiture of the issue on appeal. Hatfield at ¶ 14. Accord State v. Smith, 9th
Dist. No. 25069, 2010-Ohio-3983, ¶ 20.
{¶38} Here, Vu moved the trial court to sever her trial from her husband’s trial. The two
were indicted separately, and Vu’s motion relied upon Crim.R. 14. Accordingly, she was
required to renew her motion to sever in order to preserve the issue for appeal. Owens, 51 Ohio
App.2d at 146. The record reflects that Vu failed to do so. She, therefore, forfeited any error
with regard to the denial of her motion to sever. Vu’s ninth assignment of error is overruled.
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Assignment of Error Number Seven
THE STATE OF OHIO VIOLATED APPELLANT’S DUE PROCESS RIGHTS
AS DESCRIBED IN BRADY VS. MARYLAND.
{¶39} In her seventh assignment of error, Vu relies upon Brady v. Maryland, 373 U.S.
83 (1963), to argue that her due process rights were violated when the State failed to disclose
exculpatory evidence. Brady recognizes that the State may not withhold “material, exculpatory
evidence,” as doing so offends a criminal defendant’s due process rights. State v. Moultry, 9th
Dist. No. 25065, 2010-Ohio-3010, ¶ 9. Yet, Brady only applies when a defendant discovers
post-trial that the State has withheld exculpatory evidence. State v. Benford, 9th Dist. No.
25298, 2011-Ohio-564, ¶ 11. All of the evidence Vu now claims the State withheld is evidence
Vu became aware of before, or at latest during, trial. Brady, therefore, does not apply. State v.
Adams, 9th Dist. No. 07CA0086, 2008-Ohio-4939, ¶ 10-12. Vu’s seventh assignment of error is
overruled.
Assignment of Error Number Eight
THE TRIAL COURT’S INSTRUCTION ON COMPLICITY AND
CONSPIRACY DEPRIVED APPELLANT OF HER RIGHT TO A JURY
TRIAL AND DUE PROCESS AS GUARANTEED BY THE SIXTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND ARTICLE I, §§ 5 AND 16 OF THE OHIO
CONSTITUTION.
{¶40} In her eighth assignment of error, Vu argues that the trial court committed plain
error in instructing the jury. We disagree.
{¶41} Generally, a defendant’s failure to object to an allegedly erroneous jury
instruction limits any review of the alleged error to a review for plain error. State v. Johnson, 9th
Dist. No. 25525, 2011-Ohio-3941, ¶ 20. Under Crim.R. 52(B), “[p]lain errors or defects
affecting substantial rights may be noticed although they were not brought to the attention of the
20
court.” “Notice of plain error under Crim.R. 52(B) is to be taken with the utmost caution, under
exceptional circumstances and only to prevent a manifest miscarriage of justice.” State v. Long,
53 Ohio St. 2d 91 (1978), paragraph three of the syllabus.
{¶42} Vu argues that the trial court committed plain error when it failed to instruct the
jury on the following essential elements: (1) the elements of the principal crimes underlying her
conspiracy charges; and (2) the kind of culpability required for the commission of a complicity
offense. It is difficult to follow her argument, however, as she does not cite to any particular
portion of the jury instructions so as to explain where any alleged deficiency lies. See App.R.
16(A)(7). The trial court instructed the jury of the principal offense for each conspiracy and
complicity charge, as well as the elements of possession and cultivation, the two principal
offenses. The trial court also instructed the jury as to the mens rea for those offenses. The errors
that Vu alleges are not clear on the face of the record. Yet, even assuming that the court
committed an error, Vu did not include or define the items with which she now takes issue in the
jury instructions that she filed with the court. To the extent that the court followed Vu’s
instructions, she cannot “take advantage of an error which [she herself] invited or induced the
trial court to make.” State v. Travis, 9th Dist. No. 22737, 2006-Ohio-1048, ¶ 9, quoting State ex
rel. Bitter v. Missig, 72 Ohio St. 3d 249, 254 (1995). Her eighth assignment of error is overruled.
Assignment of Error Number Fourteen
THE TRIAL COURT ERRED IN REFUSING DEFENDANT AN
OPPORTUNITY TO BE HEARD ON HER CRIMINAL RULE 29 MOTION,
STATING IT HAD “HEARD THE OTHER CASES” AND THEREFORE
DENIED THE MOTION.
{¶43} In her fourteenth assignment of error, Vu argues that the trial court erred by
refusing her the opportunity to be heard on her Crim.R. 29 motion. The trial court allowed Vu to
make her Crim.R. 29 motion, but quickly denied the motion due to the court’s familiarity with
21
the evidence and the related trials of her co-conspirators. Vu claims that the trial court acted
“unfair[ly],” but does not set forth any argument as to how the court’s ruling prejudiced her. Vu
has not argued that she would have prevailed upon her motion, had the court afforded her an
opportunity to argue it on the merits. Further, she has not shown that her appellate rights were
affected as a Crim.R. 29 motion was “not necessary to preserve the issue of sufficiency for
appeal.” State v. Good, 9th Dist. Nos. 10CA0056 & 10CA0057, 2011-Ohio-5077, ¶ 26. Vu was
not prejudiced by the procedure the trial court employed. Consequently, her fourteenth
assignment of error is overruled.
Assignment of Error Number Twelve
THE TRIAL COURT ERRED IN INSTRUCTING THE JURY TO A
PREPONDERANCE OF THE EVIDENCE STANDARD IN THE
FORFEITURE HEARING IN VIOLATION OF APPELLANTS (sic) U.S. AND
OHIO CONSTITUTIONAL RIGHTS.
{¶44} In her twelfth assignment of error, Vu argues that the trial court committed plain
error by instructing the jury that the State had to prove forfeiture was warranted under a
preponderance of the evidence standard rather than the criminal standard of beyond a reasonable
doubt. Preponderance of the evidence, however, was the correct burden of proof to employ in
the forfeiture proceeding under the version of R.C. 2925.42 that was in effect until July 1, 2007.
State v. Jones, 9th Dist. No. 08CA0033, 2009-Ohio-670, ¶ 11; State v. Smallwood, 9th Dist. No.
07CA0063, 2008-Ohio-2107, ¶ 37; Former R.C. 2925.42(B)(3)(a). Vu’s twelfth assignment of
error is overruled.
Assignment of Error Number Thirteen
THE FORFEITURE FINDINGS FOR FORFEITURE WERE AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE AND BASED UPON
INSUFFICIENT EVIDENCE AT TRIAL.
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{¶45} In her thirteenth assignment of error, Vu argues that the jury’s forfeiture findings
are based on insufficient evidence and are against the manifest weight of the evidence. We
disagree.
{¶46} As set forth above, the State bore the burden of proving that forfeiture was
warranted under a preponderance of the evidence standard. Jones, 2009-Ohio-670, at ¶ 11. The
competent, credible evidence standard applies in appeals from proceedings that are civil in
nature. State v. Wilson, 113 Ohio St. 3d 382, 2007-Ohio-2202, syllabus. See also State v. Price,
9th Dist. No. 96CA006484, 1997 WL 209151, *2 (Apr. 23, 1997) (describing a forfeiture action
under R.C. 2925.42 as a civil proceeding). Accordingly, this Court must affirm the judgment of
forfeiture here if it is “supported by some competent, credible evidence going to all the essential
elements of the case.” C.E. Morris Co. v. Foley Const. Co., 54 Ohio St. 2d 279 (1978), syllabus.
{¶47} Former R.C. 2925.42 provides that property is subject to forfeiture if one of the
following applies:
The property constitutes, or is derived directly or indirectly from, any proceeds
that the person obtained directly or indirectly from the commission of the felony
drug abuse offense or act[; or]
The property was used or intended to be used in any manner to commit, or to
facilitate the commission of, the felony drug abuse offense or act.
R.C. 2925.42(A)(1)(a)-(b). In a jury action, the jury “shall hear and consider testimony and other
evidence in the proceeding relative to whether any property * * * is subject to forfeiture.” R.C.
2925.42(B)(3)(a). Accord Smallwood, 2008-Ohio-2107, ¶ 37.
{¶48} The forfeiture judgment in this case encompassed fifteen items, including over
$7,000 in cash, two vehicles, the Red Clover Lane property, electronic equipment, and jewelry.
The State’s sole witness, Michael Polen, testified that he worked as a Medway case agent in
2006. He testified as to all of the items that the police seized from 3384 Red Clover Lane and
23
Stoneybrook Lane Apt. 104. He further testified that despite all of their expenses, including an
Allentown indoor grow supply invoice for over $10,000 in March 2005, Vu and her husband
reported a joint income of $16,125 on their 2005 tax return. He specified that the mortgage
payment on the Red Clover Lane property and rental payment for Apt. 104 totaled more than
$2,300 per month. Finally, Polen testified that Medway did not find any evidence that Vu
reported to an employment location in Ohio on a daily basis and that, in his experience, she and
her husband procured all of the items the State sought to forfeit through their involvement in the
marijuana grow operation. Vu did not present any evidence on her own behalf.
{¶49} Based on our review of the forfeiture proceeding, we must conclude that the
judgment of forfeiture is based on competent, credible evidence. The State provided evidence
from which the jury could have concluded that the property here was derived, either directly or
indirectly, from the proceeds of Vu’s felony drug abuse offense. R.C. 2925.42(A)(1)(a). Vu’s
thirteenth assignment of error is overruled.
III
{¶50} Vu’s fourteen assignments of error are overruled. The judgment of the Medina
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
24
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
______________________________
BETH WHITMORE
FOR THE COURT
BELFANCE, P.J.
CONCURS IN JUDGMENT ONLY
DICKINSON, J., CONCURRING.
{¶51} I concur in the majority’s judgment and in all of its opinion except its refusal to reach the
merits of Ms. Vu’s second assignment of error. I would reach those merits and overrule the
second assignment of error as not constituting plain error.
APPEARANCES:
KENNETH C. STAIDUHAR, Attorney at Law, for Appellant.
DEAN HOLMAN, Prosecuting Attorney, and MATTHEW KERN, Assistant Prosecuting
Attorney, for Appellee.