State v. McGowan , 2015 Ohio 3429 ( 2015 )

[Cite as State v. McGowan, 2015-Ohio-3429.]
STATE OF OHIO, JEFFERSON COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, ) CASE NO. 14 JE 37
)
PLAINTIFF-APPELLEE, )
)
VS. ) OPINION
)
FREDERICK McGOWAN, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Jefferson County,
Ohio
Case No. 13CR247
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Jane M. Hanlin
Prosecuting Attorney
Jefferson County Justice Center
16001 State Route 7
Steubenville, Ohio 43952
For Defendant-Appellant: Atty. Eric M. Reszke
Suite 810, Sinclair Bldg.
100 North 4th St.
Steubenville, Ohio 43952
JUDGES:
Hon. Carol Ann Robb
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: August 20, 2015
[Cite as State v. McGowan, 2015-Ohio-3429.]
ROBB, J.
{¶1} Defendant-Appellant Frederick L. McGowan appeals his conviction and
sentence entered in Jefferson County Common Pleas Court. Two issues are raised
in this appeal. The first issue is whether the conviction for possession of drugs was
against the manifest weight of the evidence. The second issue is whether the trial
court erred in ordering an aggregate ten year sentence. For the reasons expressed
below, the conviction and sentence are hereby affirmed.
Statement of the Facts
{¶2} On July 12, 2013, the Jefferson County Drug Task Force executed a
search warrant on a suspected drug house at 809 Market Street, Toronto, Ohio. Tr.
105. The house became known to the Drug Task Force through Toronto Police
Department’s surveillance and a confidential informant. Tr. 102, 105. Two of the
apartments in the house were rented by Nathaniel Richmond, an alleged member of
the Chicago Boys, a local gang whose members are known for drug trafficking and
violent crimes. Tr. 103-104.
{¶3} The officers entered the house through Apartment Number 1. There
they found Appellant and a prostitute naked in the single bedroom apartment. Tr.
107. Appellant informed the officers which pants were his, brown pants size 44. Tr.
108, 165. Upon searching those pants, the officers found one rock of crack cocaine,
one small bag of marijuana, and $520 in cash. Tr. 109, 218. Appellant admitted that
the drugs and money found in the brown pants were his.
{¶4} In plain view on the kitchen table, a small amount of crack cocaine and
crack pipe were found. The prostitute admitted these items were hers. Tr. 110.
Appellant was paying the prostitute for her services with crack cocaine. She received
the first amount prior to performing sexual services; the rock found in Appellant’s
pants was her final payment after services were performed. Tr. 112.
{¶5} Both Appellant and the prostitute were taken into custody.
{¶6} The officers continued the search of the residence. Tr. 112. In the
living room closet, the officers found a black duffle bag. Tr. 117, 121. Inside the
black duffle bag was a letter addressed to Appellant. Tr. 121-122. A pair of jeans
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was also found in the closet. In the pocket of those jeans 8 bags of heroin and 27
bags of individually wrapped rocks of crack cocaine were found. Tr. 123, 125, 220.
Each bag of heroin weighed about 10 grams, for a total weight of 74.8 grams. Tr.
125, 194. The jeans were labeled size 36. Tr. 165. They were sent to BCI to be
tested for Appellant’s DNA and it was later confirmed that a mixture of DNA was
found on the jeans. Tr. 123, 211. The mixture of DNA included contributions from
Appellant and at least one unknown individual. Tr. 211. Also found in the closet was
a toothbrush that tested positive for Appellant’s DNA. Tr. 128, 208.
{¶7} A black Samsung AT&T cell phone belonging to Appellant was found
during the search. Tr. 135. Text messages on this phone that concerned the Drug
Task Force Agents were from “Tilla.” Tr. 136. The officer testified that the name
“Tilla” is associated with a person named “Tracy McGowan,” Appellant’s cousin. Tr.
136-137. The officer testified that Tracy McGowan is a known member of the
Chicago Boys, who was convicted of drug trafficking several times. Tr. 137. Tilla text
messaged Appellant at 4:08 on July 12 stating, “U need to movie dat.” Tr. 137. In
response Appellant text messaged, “Ok.” Tr. 137. At 4:11 Tilla again texted
Appellant and asked, “Where u at?” Tr. 138. Fifteen minutes before the execution of
the search warrant, Tilla texted Appellant, “Yo, u better move dat shit cuz.” Tr. 138.
Statement of the Case
{¶8} Based upon the above, Appellant was indicted for possession of heroin
a violation of R.C. 2925.11(A)(C)(6)(e), a first-degree felony, and possession of
cocaine a violation of R.C. 2925.11(A)(C)(4)(b), a fourth-degree felony. 12/18/13
Indictment.
{¶9} Appellant pled not guilty and the case proceeded to trial. Following
testimony and presentation of evidence, the jury found Appellant guilty of both
charges. 11/18/14 Verdict Judgments. Sentencing occurred immediately. The trial
court sentenced Appellant to ten years for possession of heroin and one year for
possession of cocaine. The trial court ordered the sentences to be served
concurrently.
{¶10} Appellant timely appealed his conviction and sentence.
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First Assignment of Error
“The jury verdict of guilty to the offenses of possession of drugs was against
the manifest weight of the evidence.”
{¶11} In determining whether a verdict is against the manifest weight of the
evidence, an appellate court must review the entire record, weigh the evidence and
all reasonable inferences, 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.
Thompkins, 78 Ohio St. 3d 380, 387, 678 N.E.2d 541 (1997). “Weight of the evidence
concerns ‘the inclination of the greater amount of credible evidence, offered in a trial,
to support one side of the issue rather than the other.’“ Id. In making its
determination, a reviewing court is not required to view the evidence in a light most
favorable to the prosecution, but may consider and weigh all of the evidence
produced at trial. Id. at 390.
{¶12} Although an appellate court can consider and weigh all of the evidence,
only where the evidence weighs heavily against the conviction shall a new trial be
ordered. State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
The extraordinary relief of a new trial is limited because determinations of witness
credibility, conflicting testimony, and evidence weight are primarily for the trier of the
facts who sits in the best position to judge the weight of the evidence and the
witnesses' credibility by observing their gestures, voice inflections, and demeanor.
State v. Rouse, 7th Dist. No. 04–BE–53, 2005–Ohio–6328, ¶ 49, citing State v. Hill,
75 Ohio St. 3d 195, 205, 661 N.E.2d 1068 (1996). See also Seasons Coal Co., Inc. v.
Cleveland, 10 Ohio St. 3d 77, 80, 461 N.E.2d 1273 (1984).
{¶13} Appellant was convicted of R.C. 2925.11 (A)(C)(4)(b) and (6)(e), which
provides:
(A) No person shall knowingly obtain, possess, or use a
controlled substance or a controlled substance analog.
***
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(C) Whoever violates division (A) of this section is guilty of
one of the following:
***
(4) If the drug involved in the violation is cocaine or a compound,
mixture, preparation, or substance containing cocaine, whoever violates
division (A) of this section is guilty of possession of cocaine. The
penalty for the offense shall be determined as follows:
***
(b) If the amount of the drug involved equals or exceeds five
grams but is less than ten grams of cocaine, possession of cocaine is a
felony of the fourth degree, and division (B) of section 2929.13 of the
Revised Code applies in determining whether to impose a prison term
on the offender.
***
(6) If the drug involved in the violation is heroin or a compound,
mixture, preparation, or substance containing heroin, whoever violates
division (A) of this section is guilty of possession of heroin. The penalty
for the offense shall be determined as follows:
***
(e) If the amount of the drug involved equals or exceeds five
hundred unit doses but is less than two thousand five hundred unit
doses or equals or exceeds fifty grams but is less than two hundred fifty
grams, possession of heroin is a felony of the first degree, and the court
shall impose as a mandatory prison term one of the prison terms
prescribed for a felony of the first degree.
R.C. 2925.11.
{¶14} Appellant argues that the evidence fails to support the guilty verdict for
possessing the drugs found in the blue jeans. He claims there was no evidence that
he wore the jeans. He further asserts that there were other people with access to the
jeans and to the apartment complex.
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{¶15} Contrary to Appellant’s assertion, there was testimony that could lead
the jury to conclude Appellant was in possession of the crack cocaine and heroin
found in the jeans. A review of the testimony supports this conclusion.
{¶16} Appellant admitted that the brown pants, and the one rock of crack
cocaine and a bag of marijuana found in those pants, were his. However, he denied
the crack cocaine and heroin found in the jeans were his.
{¶17} Testimony established that the crack cocaine in the brown pants was
very similar to the crack cocaine found in the jeans. Officer Hanlin from the Drug
Task Force explained that crack cocaine does not always look the same. He stated it
will differ in size, in color, and in the packaging. Tr. 142. However, the crack
Appellant was claiming to own and the crack found in the jeans were same in color
and size. Exhibit 7 Photographs of Crack Cocaine; Tr. 143. Also, the packaging was
the same. Tr. 142; Exhibit 17 Photographs of Crack Cocaine. Officer Hanlin
explained that crack cocaine is typically stuffed in the corner of a sandwich bag with a
knot tied tightly at the top. Tr. 142-143. The sandwich bags, in this case, were cut
with scissors after the knot, which Officer Hanlin explained is not normal; instead, he
testified that the sandwich bag is normally torn. Tr. 143.
{¶18} The similarities of the two crack exhibits did not stop at appearance and
packaging. It extended to chemical content. The purity level of the crack found in the
jeans as compared to the crack found in the brown pants was nearly identical. The
purity level of the cocaine found in the jeans was 64.9 percent with 2.9 percent error.
Tr. 148, 192; State’s Exhibit 26. The purity level of the crack found in the brown
pants, which Appellant admitted was his, was 64.6 percent with 2.9 percent error. Tr.
147, 191; State’s Exhibit 25. A special agent with the Drug Enforcement
Administration testified this level of purity was unusually high. Tr. 192-193. Given
the color, size, and purity level, the special agent opined that the crack found in the
jeans and the crack found in the brown pants were “in all likelihood * * * the same --
same cocaine.” Tr. 193.
{¶19} We now turn our review to linking the crack in the jeans to possession
of crack by Appellant. There was evidence that connected Appellant to the jeans.
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{¶20} The jeans were found in a closet with other items owned by Appellant.
For instance, a duffle bag with a letter addressed to Appellant and his toothbrush
were found in the closet. Samuel Troyer, a DNA analyst from the Ohio Bureau of
Criminal Investigation (“BCI”), tested the toothbrush for Appellant’s DNA. The test
indicated that the DNA on the toothbrush was consistent with Appellant’s DNA; this
DNA could be found in 1 in every 295 sextillion, 200 quintillion random individuals.
Tr. 208-209; State’s Exhibit 28.
{¶21} Appellant’s DNA was also found on the jeans containing the drugs.
Troyer testified that the jeans were tested at the waistband for DNA. Tr. 210. The
sample taken from the jeans presented a profile mixture. Tr. 211. The mixture was
consistent with contributions from Appellant and at least one unknown individual. Tr.
211. The analyst testified that he would expect 1 in every 618,800 individuals to be
included in the mixture. Tr. 211; State’s Exhibit 28. Troyer admitted, on cross-
examination, that Appellant’s DNA could have gotten on the jeans by picking them up
and folding them, and not by wearing them. Tr. 214.
{¶22} Appellant’s counsel focused on the size difference between the brown
pants and the jeans insinuating, given the difference, the jeans could not belong to
Appellant. The jeans were a size 36; the brown pants were a size 44. Officer Hanlin
testified that when the jeans and the brown pants were held up and compared there
was little size difference; he opined that the brown pants did not appear to be six
inches bigger than the jeans. Tr. 165. Furthermore, both the jeans and the brown
pants were admitted into evidence; the jury was able to compare the size. Even
more compelling, the jury actually got to see Appellant in the jeans to determine if
they fit. Tr. 227-228. Appellant put on the jeans and lifted his shirt up so the jury
could see. Tr. 228. He also bent over and squatted so the jury could see if the jeans
fit. Tr. 228-229.
{¶23} Cellular phone text messages also linked the crack and heroin that
were found in the jeans to Appellant. Those text messages were from Appellant’s
cousin, Tracy McGowan, who goes by the name “Tilla.” Tilla is a known member of
the Chicago Boys gang, and has been investigated and convicted of drug trafficking
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several times. Tr. 136-137. Tilla sent Appellant two text messages on July 12 stating,
“U need to movie dat,” and “Yo, u better move dat shit cuz.” Tr. 137-138; State’s
Exhibit 16. The last text message occurred about fifteen minutes before the execution
of the search warrant. Tr. 138. The jury could reasonably conclude the texts were
advising Appellant to get the crack and heroin out of the apartment because a search
for it might occur.
{¶24} On cross-examination, Officer Hanlin admitted it was possible that the
text messages where telling Appellant to get rid of the drugs he admitted to having in
his brown pants, not the crack and heroin found in the jeans. Tr. 173. While this may
be a possible conclusion, it was not the conclusion reached by the jury.
{¶25} The jury was in the best position to determine whether or not Appellant
possessed the crack and heroin found in the jeans. Considering all the evidence,
and the fact that the jury got to see Appellant in the jeans, we conclude the trier of
fact did not clearly lose its way and create such a manifest miscarriage of justice that
the conviction must be reversed and a new trial ordered. State v. McKnight, 107
Ohio St. 3d 101, 2005–Ohio–6046, 837 N.E.2d 315, ¶ 71.
{¶26} This court is not persuaded by Appellant’s arguments. This assignment
of error is meritless.
Second Assignment of Error
“The trial court committed reversible error in sentencing the defendant to ten
(10) years in prison.”
{¶27} Appellant argues that the trial court failed to consider factors which
weighed against this crime being more serious than conduct normally constituting the
offense, and factors which supported the conclusion that recidivism was not likely.
Specifically, he asserts the trial court did not favorably weigh the facts that: he had no
prior delinquency adjudications; the possession of heroin was 74.8 grams and was
not near the threshold of 250 grams that apply under the Major Drug Offender
statute; he was on worker’s compensation at the time of the offense; his part in the
drug trafficking enterprise was limited due to his short residency period in Jefferson
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County; and, no firearm or weapon was found on his person or in the apartment
when the search warrant was executed.
{¶28} This court is currently split as to the standard to apply in felony
sentencing cases. State v. Stillabower, 7th Dist. No. 14 BE 24, 2015-Ohio-2001, ¶ 8-
11, citing State v. Hill, 7th Dist. No. 13 MA 1, 2014–Ohio–919 (Vukovich, J., Donofrio,
J., majority with DeGenaro, J., concurring in judgment only with concurring in
judgment only opinion) and State v. Wellington, 7th Dist. No. 14 MA 115, 2015–Ohio–
1359 (Robb, J., DeGenaro, J., majority with Donofrio, J. concurring in judgment only
with concurring in judgment only opinion).
{¶29} One approach, as applied in Hill, is to apply the test set out in the
plurality opinion in State v. Kalish, 120 Ohio St. 3d 23, 2008–Ohio–4912, 896 N.E.2d
124, ¶ 26. Kalish provides a two part test. First, it is determined whether the
sentence is clearly and convincingly contrary to law. Id. at ¶ 13–14. Second, the
court’s discretion in selecting the sentence within the permissible statutory range is
reviewed for an abuse of discretion. Id. at ¶ 17.
{¶30} The other approach, as applied in Wellington, is to strictly follow R.C.
2953.08(G), which provides appellate courts are only to review felony sentences to
determine if they are contrary to law. R.C. 2953.08(G) specifically indicates the
appellate court's standard for review for felony sentencing is not whether the
sentencing court abused its discretion.
{¶31} As we mentioned in Stillabower, a certified question concerning what
felony sentencing standard of review applies is pending before the Ohio Supreme
Court. Stillabower, 2015-Ohio-2001 at ¶ 11, citing State v. Marcum, 141 Ohio St. 3d
1453, 2015–Ohio–239, 23 N.E.3d 1453.
{¶32} Regardless of which test we apply, the sentence is upheld.
{¶33} The ten year sentence for possession of heroin, a first-degree felony, is
within the applicable range set forth in R.C. 2929.14(A)(1). Likewise, the one year
sentence for possession of crack cocaine, a fourth-degree felony, is within the
applicable range set forth in R.C. 2929.14(A)(4).
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{¶34} In the judgment entry, the trial court indicated that it considered R.C.
2929.11, the purposes and principles of sentencing, and balanced the seriousness
and recidivism factors under R.C. 2929.12. 11/26/14 J.E. At the sentencing hearing,
the trial court did not specifically mention R.C. 2929.11 or 2929.12. However,
although the trial court is required to consider both R.C. 2929.11 and 2929.12 when
considering the appropriate sentence, the court is not required to mention the
statutes at the sentencing hearing. State v. Mathis, 109 Ohio St. 3d 54, 2006–Ohio–
855, 846 N.E.2d 1, ¶ 38 (required to consider the R.C. 2929.11 and 2929.12); State
v. White, 7th Dist. No. 13 JE 33, 2014-Ohio-4153, ¶ 9.
{¶35} The record before us indicates the trial court considered both statutes.
Appellant’s arguments pertain to the balancing of the seriousness and recidivism
factors enumerated in R.C. 2929.12. The trial court considered these factors.
{¶36} The trial court noted Appellant was convicted of possession of cocaine
with the intent to distribute in 1996, along with other charges, and was sentenced to
14 years. Tr. 268, 273. Appellant was released, violated his parole, and returned to
prison for two years in 2010. Tr. 269, 274. When the offense before us occurred, he
was on parole. Tr. 278. This information relates to recidivism and indicates
Appellant is more likely to commit future crimes. R.C. 2929.12(D)(1)-(3). Although
Appellant was not adjudicated a delinquent nor committed an offense as a juvenile,
his adult offenses are pertinent and recent.
{¶37} In weighing the seriousness of the crime, the trial court considered the
facts of the crime. R.C. 2929.12(B), (C). Appellant was convicted of bringing two
separate types of drugs into the county; the drugs were going to be sold from a drug
house. Tr. 269-270, 278-279. Although the testimony indicated that Appellant
resided in Jefferson County a short period of time, that short period of residency does
not mitigate the fact that drugs were brought into the county to be sold. The amount
of heroin was 70 grams, which is in between the 50 to 250 grams that constitute a
first-degree felony. Tr. 269; R.C. 2925.11(C)(6)(e). While this amount is closer to 50
grams rather than 250 grams, sentences are not required to be based upon a
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mathematical ratio. Instead, trial courts weigh the factors and determine the
appropriate sentence.
{¶38} The trial court knew Appellant was on worker’s compensation when the
offense was committed. Tr. 272. The trial court also knew Appellant did not have a
firearm on his person at the time of arrest. Tr. 283. Those facts did not persuade the
court that a lesser sentence should be imposed. In fact, the trial court indicated if
Appellant had a weapon at the time of arrest, then it would have sentenced him to a
longer term. Tr. 283.
{¶39} Reviewing all the information considered by the trial court, we hold the
trial court did not commit error in its sentence of this Appellant. This assignment of
error is overruled.
Conclusion
{¶40} Both assignments of error are without merit. The conviction and
sentence are hereby affirmed.
Donofrio, P.J., concurs.
DeGenaro, J. concurs.