State v. Tatum , 2011 Ohio 3005 ( 2011 )

[Cite as State v. Tatum, 2011-Ohio-3005.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
STATE OF OHIO, CASE NO. 13-10-18
PLAINTIFF-APPELLEE,
v.
ALI L. TATUM, OPINION
DEFENDANT-APPELLANT.
Appeal from Seneca County Common Pleas Court
Trial Court No. 10-CR-0021
Judgment Affirmed
Date of Decision: June 20, 2011
APPEARANCES:
Randy F. Hoffman for Appellant
Rhonda L. Best for Appellee
Case No. 13-10-18
ROGERS, P.J.
{¶1} Defendant-Appellant, Ali Tatum, appeals from the judgment of the
Court of Common Pleas of Seneca County sentencing him to a twenty-year prison
term. On appeal, Tatum contends that the trial court erred as a matter of law by
overruling his motion to dismiss the charges due to a violation of the speedy trial
statute; that the trial court erred by overruling his motion to strike testimony and
his motion for mistrial; that the trial court erred in denying his motions for
acquittal; and, that the trial court erred in sentencing him to consecutive sentences
for counts involving the possession of controlled substances. Based on the
following, we affirm the judgment of the trial court.
{¶2} On February 3, 2010, the Seneca County Grand Jury indicted Tatum
on Count One: possession of crack cocaine in an amount which exceeds twenty-
five grams but is less than one hundred grams in violation of R.C.
2925.11(A),(C)(4)(e), a felony of the first degree; Count Two: possession of
cocaine in an amount which exceeds twenty-five grams but is less than one
hundred grams in violation of R.C. 2925.11(A),(C)(4)(c), a felony of the third
degree; Count Three: possession of MDMA, a schedule one controlled substance,
in an amount which exceeds the bulk amount but is less than five times the bulk
amount in violation of R.C. 2925.11(A),(C)(1)(b), a felony of the third degree;
Count Four: possession of BZP, a schedule one controlled substance, in an amount
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which exceeds the bulk amount but is less than five times the bulk amount in
violation of R.C. 2925.11(A),(C)(1)(b), a felony of the third degree; Count Five:
possession of methamphetamine, a schedule two controlled substance, in violation
of R.C. 2925.11(A),(C)(1)(a), a felony of the fifth degree; Count Six: possession
of criminal tools in violation of R.C. 2923.24, a felony of the fifth degree; and,
Count Seven: having a weapon while under disability in violation of R.C.
2923.13(A)(3), a felony of the third degree. The foregoing indictment arose from
a March 6, 2008 incident, where officers apprehended Tatum at a friend’s
residence, and discovered controlled substances, a digital scale, and a firearm, in a
black bag which Tatum had carried into the residence.
{¶3} The State originally indicted Tatum on the foregoing counts in March
2008. The State, however, dismissed the indictment without prejudice on May 13,
2008, as Tatum was taken into federal custody for violating parole. Subsequently,
Tatum was released from federal custody into a half-way house and was later
arrested on charges unrelated to those at issue on this appeal. As a result of that
arrest a federal detainer was placed on Tatum. In addition, the State reindicted
Tatum for the alleged offenses which occurred on March 6, 2008.
{¶4} On March 24, 2010, Tatum filed a motion to dismiss the case based on
a violation of his right to a speedy trial. Specifically, Tatum argued that he had
been held in jeopardy on the foregoing charges for more than two years, which far
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exceeded the time period in which an accused must be brought to trial. The trial
court, after it heard arguments on the motion during trial, denied Tatum’s motion.
{¶5} On March 29, 2010, the matter proceeded to a jury trial, at which the
following testimony was adduced.
{¶6} Officer Matthew Dickson testified that on the night of March 6, 2008,
he attempted to conduct a traffic stop of a white SUV driven by Tatum.1 Despite
having engaged his overhead emergency lights, Tatum did not pull over. After an
abbreviated chase, Tatum stopped the vehicle in front of a residence located at 211
Culbertson, that Officer Dickson later learned was inhabited by Tiffany Lee and
Brent Lentz. Officer Dickson witnessed Tatum exit the SUV and pursued him
towards the residence but was unable to apprehend him before he had entered the
residence and locked the door. Subsequently, Officer Dickson returned to the
SUV and found Lentz in the passenger seat. Officer Dickson placed Lentz in
investigative custody and waited for back-up before he attempted to enter the
residence.
{¶7} Officer Dickson continued that upon Officer Michael Cortez’s arrival
he and Officer Cortez attempted to enter the residence. During this time officers
from the Fostoria Police Department had set a perimeter around the residence.
Also, during this time Lentz placed a call to Lee, who was in the residence with
Justin Jones, a visitor and Tatum’s cousin, telling her to open the door. Shortly
1
Officer Dickson testified that Tatum’s traffic violation resulted from turning left into the outside lane
rather than the lane closest to the center line.
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thereafter, the door was unlocked. Upon entering the residence, Officers Dickson
and Cortez placed Tatum in custody. As Officer Dickson entered the residence he
also observed Lee on the sofa and Jones on the floor playing video games in the
living room.
{¶8} Officer Dickson continued that Officer Cortez spoke with Lee and
received verbal, as well as written, permission to search the residence. During his
search of the kitchen Officer Dickson discovered a black bag on top of the
refrigerator. Upon opening the bag Officer Dickson discovered what he perceived
to be controlled substances. Officer Dickson communicated his discovery to
Officer Cortez, who retrieved his evidence bag and documented the evidence.
Further investigation of the black bag revealed the presence of a digital scale as
well as a firearm. Officer Dickson further testified that neither he nor any other
officer discovered any other black bags in the residence.
{¶9} At trial Officer Dickson testified about the contents of the video
recorded by his police cruiser’s dash mounted camera. The video captured an
individual exiting the SUV, who Officer Dickson identified as Tatum, carrying a
black bag.
{¶10} Officer Cortez testified that on the night of March 6, 2008, he
responded to a call for assistance from Officer Dickson. Upon arrival, Officer
Cortez observed Officer Dickson placing Lentz in custody, and learned that Tatum
had locked himself inside the residence. As Officer Dickson attempted to gain
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entry into the residence, Officer Cortez asked Lentz about the individuals inside
the residence. Lentz responded that Lee, his girlfriend, Jones, and Tatum were in
the residence. Officer Cortez asked Lentz if he would call Lee and ask her to
unlock the door. Lentz agreed and called Lee. Officer Cortez then returned to the
front door with Officer Dickson. Eventually, the door was unlocked, allowing
Officers Dickson and Cortez to enter the residence and place Tatum in custody. In
addition to observing Tatum in the residence Officer Cortez also testified that he
observed another male and female in the residence, who he later identified as
Jones and Lee.
{¶11} Officer Cortez continued that he smelled marijuana in the residence
and asked Lee if officers could conduct a search of the residence. It was at this
point Officer Cortez learned that Lee and Lentz were the sole inhabitants of the
residence. Lee gave Officer Cortez permission to search the residence and signed
a consent to search form. Prior to this point, Officer Cortez testified that the
residence had not been searched. After receiving Lee’s permission the officers
conducted a search of the entire residence. During the search Officer Dickson
directed Officer Cortez’s attention to a black bag found in the kitchen. Upon
entering the kitchen, Officer Cortez witnessed a black bag on the counter, and
observed what he perceived to be controlled substances within the bag. Officer
Cortez retrieved his evidence bag and began recording and conducting an
inventory of the bag’s contents. Officer Cortez also testified that the bag
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contained a digital scale and a firearm. Officer Cortez further testified that no
other officers who conducted a search of the residence on the night in question
discovered any other black bags.
{¶12} Lee testified that on the night of March 6, 2008, she resided at 211
Culbertson with Lentz, and that no one else lived in the residence. On that night,
Lee was at the residence with Jones, who was playing video games. Lee did not
recall Jones carrying a bag into the residence when he arrived that day.
{¶13} Lee continued that at some point during the night in question Tatum
entered the residence. Shortly thereafter police officers requested entry into the
residence. Lee then received a phone call from Lentz requesting her to let the
officers in, at which point Tatum opened the door. After the officers placed Tatum
in custody, Lee testified that officers began to search the residence. Lee further
testified that only after the officers began to search the residence did Officer
Cortez request her permission to search the residence. Lee testified that Officer
Cortez told her that she had to sign the consent to search form. Subsequently, an
officer informed Lee about a black bag above the refrigerator in the kitchen. Lee
testified that she did not keep anything on top of the refrigerator, nor did she or
Lentz own a black bag.
{¶14} Lentz testified that on the night of March 6, 2008, he resided at 211
Culbertson with Lee, and that no one else lived in the residence. Lentz further
testified that on the night in question, he was a passenger in a white SUV driven
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by Tatum. During their drive a police cruiser attempted to pull them over, but
Tatum did not stop until he reached 211 Culbertson. Tatum then exited the SUV
and ran into the residence, while Lentz remained in the SUV. Lentz testified that
as Tatum entered the residence he saw Tatum carrying a black bag. Subsequently,
Lentz was placed in custody, and was asked to call Lee and have her open the
door. After officers entered the residence Lentz was notified that a black bag was
found on top of the refrigerator. Lentz testified that he did not keep anything on
top of the refrigerator, nor did he or Lee own a black bag.
{¶15} Tatum testified that on the night of March 6, 2008, he was driving a
white SUV, with Lentz as a passenger. At some point during his drive a police
cruiser attempted to pull him over. Tatum testified that he did not stop because he
did not have a license. Tatum further testified that he continued to 211 Culbertson
so he could have Jones, his cousin, state that he was driving the SUV. Upon
reaching 211 Culbertson Tatum exited the SUV carrying a black bag, which
Tatum testified contained video games and controllers. Upon entering the
residence Tatum testified that he locked the door and placed the black bag on the
floor near Jones and the television with his coat on top. Tatum then explained his
predicament to Jones, who did not want to be involved. During this time officers
were requesting entry into the residence. After several minutes had elapsed from
the moment the officers requested entry into the residence, Tatum opened the door
and was placed in custody.
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{¶16} Scott Dobransky, a forensic scientist with the Ohio Bureau of
Criminal Identification and Investigation (“BCI & I”), testified about the
substances given to him for analysis in Tatum’s case. Dobransky was shown and
asked to testify about State’s exhibits 2A.1, 2A.2, 2A.5, 2A.8, and 2A.9.
Dobransky testified that the foregoing exhibits wholly or partially contained BZP,
a schedule one controlled substance, in an amount totaling forty unit doses.
Dobransky was then shown and asked to testify about State’s exhibits 2A.4, 2A.5,
2A.8, 2A.9, and 2A.11. Dobransky testified that the foregoing exhibits wholly or
partially contained MDMA, a schedule one controlled substance, in an amount
totaling twenty-two unit doses. As to the remaining substances found in the black
bag, Dobransky testified that he identified crack cocaine in an amount that
exceeded twenty-five grams but was less than one hundred grams, cocaine in an
amount that exceeded twenty-five grams but was less than one hundred grams, and
methamphetamine.
{¶17} At the conclusion of the State’s case, Tatum’s defense, and the
presentation of all the evidence, Tatum moved for a judgment of acquittal pursuant
to Crim.R. 29(A), arguing that the evidence was insufficient to establish that he
had actual or constructive possession of the contents within the black bag and that
the State failed to present enough evidence to prove that he possessed bulk
amounts of MDMA and BZP. The trial court denied Tatum’s motions.
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Thereafter, the jury returned a verdict convicting Tatum on all seven counts of the
indictment.
{¶18} On April 8, 2010, the matter proceeded to sentencing. The trial court
sentenced Tatum to a nine-year prison term on Count One, a four-year prison term
on Count Two, a four-year prison term on Count Three, a four-year prison term on
Count Four, an eleven-month prison term on Count Five, an eleven-month prison
term on Count Six, and a three-year prison term on Count Seven. The trial court
further ordered that Counts Three, Four, Five, and Six be served concurrently, but
consecutively to Counts One, Two, and Seven, which are to be served
consecutively to each other, resulting in a total prison term of twenty-years.
{¶19} It is from this judgment Tatum appeals, presenting the following
assignments of error for our review.
Assignment of Error No. I
THE TRIAL COURT ERRED AS A MATTER OF LAW BY
DENYING APPELLANT’S MOTION FOR DISMISSAL ON
GROUNDS OF DENIAL OF SPEEDY TRIAL.
Assignment of Error No. II
THE TRIAL COURT ERRED BY OVERRULING
APPELLANT’S MOTIONS FOR STRIKING TESTIMONY
AND FOR MISTRIAL.
Assignment of Error No. III
THE TRIAL COURT ERRED AS A MATTER OF LAW IN
DENYING APPELLANT’S MOTIONS FOR ACQUITTAL AT
THE END OF THE STATE’S EVIDENCE, THE
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DEFENDANT’S EVIDENCE, AND AT THE END OF ALL
THE EVIDENCE.
Assignment of Error No. IV
THE TRIAL COURT ERRED IN SENTENCING APPELLANT
TO CONSECUTIVE TERMS FOR ANY INDICTMENT
COUNTS INVOLVING THE POSSESSION OF
CONTROLLED SUBSTANCES.
Assignment of Error No. I
{¶20} In his first assignment of error, Tatum contends that the trial court
erred in denying his motion to dismiss on grounds that he did not receive a speedy
trial, and that his right to due process of law was violated as a result of an
indictment occurring two years after the commission of the offense. We disagree.
Speedy Trial
{¶21} “Our standard of review upon an appeal raising a speedy trial issue is
to count the expired days as directed by R.C. 2945.71, et seq.” State v. King, 3d
Dist. No. 9-06-18, 2007-Ohio-335, ¶30, citing State v. DePue (1994), 96 Ohio
App.3d 513, 516. If any ambiguity exists, this Court will construe the record in
the defendant’s favor. King, 2007-Ohio-335, at ¶30, citing State v. Mays (1996),
108 Ohio App.3d 598, 609.
{¶22} “Both the United States and Ohio Constitutions guarantee a criminal
defendant the right to a speedy trial.” State v. Masters, 172 Ohio App.3d 666,
2007-Ohio-4229, ¶9, citing State v. Baker, 78 Ohio St.3d 108, 110, 1997-Ohio-
229. In addition, Ohio statutes set forth specific time requirements necessary for
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compliance with the speedy trial guarantee. The applicable statutory speedy trial
provision, R.C. 2945.71(C)(2), provides that “[a] person against whom a charge of
felony is pending * * * [s]hall be brought to trial within two hundred seventy days
after the person’s arrest.”
{¶23} Additionally, R.C. 2945.73(B) provides that “[u]pon 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.” Both R.C. 2945.71 and 2945.73 are
mandatory, and strict compliance is required by the State. King, 2007-Ohio-335,
at ¶32, quoting State v. Pudlock (1975), 44 Ohio St.2d 104, 105. “Therefore,
when a criminal defendant shows that he was not brought to trial within the proper
period, the burden shifts to the State to demonstrate that sufficient time was tolled
or extended under the statute.” State v. Maisch, 173 Ohio App.3d 724, 2007-
Ohio-6230, ¶24, citing Masters, 2007-Ohio-4229, at ¶10, citing State v. Butcher
(1986), 27 Ohio St.3d 28, 31.
{¶24} “The statutory time period begins to run on the date the defendant is
arrested; however, the date of arrest is not counted when computing the time
period.” Maisch, 2007-Ohio-6230, ¶26, citing Masters, 172 Ohio App.3d 666, at
¶12, citing State v. Stewart, 12th Dist. No. CA98-03-021, 1998 WL 640909.
Additionally, the triple-count statute, R.C. 2945.71(E), provides that, for
computation purposes, each day an accused spends in jail in lieu of bond solely on
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the pending charge shall count as three days. State v. Euton, 3d Dist. No. 2-06-35,
2007-Ohio-6704, ¶24; State v. Pishok, 3d Dist. No. 13-03-43, 2003-Ohio-7118,
¶7, citing State v. Brown (1992), 64 Ohio St.3d 476, 479.
{¶25} The speedy trial time may be tolled in certain circumstances. One
circumstance occurs when the original charges are dismissed without prejudice
and the defendant is later reindicted, upon the same facts as alleged in the original
indictment. State v. Azbell, 112 Ohio St.3d 300, 2006-Ohio-6552, ¶17, quoting
State v. Broughton (1991), 62 Ohio St.3d 253. The time period between the
dismissal and the date on which the new indictment was filed is tolled and shall
not be counted, unless the defendant remained in jail or was released on bail
pursuant to Crim.R. 12(I). Id. In that circumstance the speedy trial clock does not
start anew with the reindictment, but continues from the point of dismissal of the
original indictment. State v. Byrd, 8th Dist. No. 91433, 2009-Ohio-3283, ¶17.
{¶26} Turning to the facts of the case at bar, we find that the speedy trial
period ran from Tatum’s apprehension on March 6, 2008, to the State’s dismissal
of the original indictment on May 13, 2008. Because Tatum was detained during
this period of time, the triple-count provision applied, thus exhausting 204 days of
the speedy trial period. The period between the dismissal of the original
indictment and Tatum’s reindictment do not count towards the speedy trial period,
thus we continue our calculation on the day Tatum was reindicted, which occurred
on February 3, 2010.
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{¶27} At the time Tatum was reindicted he was being held on unrelated
charges and also had a federal detainer placed on him. Tatum baldly asserts that
the unrelated charges were very weak and were returned for the sole purpose of
avoiding the triple-count provision. Tatum, however, offers no evidence to
support this assertion, and we find no evidence in the record to substantiate this
assertion. Accordingly, we find that the triple-count provision does not apply to
those days after February 3, 2010, since Tatum was not being held “in jail in lieu
of bond solely on the pending charge[s].” See State v. Freeman, 8th Dist. No.
85137, 2005-Ohio-3480, ¶56, reversed on other grounds; State v. Monroe, 4th
Dist. No.02CA23, 2003-Ohio-1709, ¶5; State v. Donald, 8th Dist. Nos. 81570,
83947, 2004-Ohio-6848. Tatum’s trial commenced on March 29, 2010, thus
exhausting another 55 days of the speedy trial period. Adding these days to the
existing balance we find that only 259 days of the 270 day statutory period
elapsed. Accordingly, we find that Tatum’s right to trial within the statutory time
period was not violated.
Delay in Indictment
{¶28} Tatum also contends that the two-year delay between his initial arrest
and the February 3, 2010 indictment violated his right to due process as it
exacerbated his inability to locate Jones and obtain Jones’ testimony. We
disagree.
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{¶29} The Ohio Supreme Court has held that “[a]n unjustifiable delay
between the commission of an offense and a defendant’s indictment * * * is a
violation of the right to due process of law under Section 16, Article I of the Ohio
Constitution and the Fifth and Fourteenth Amendments to the United States
Constitution.” State v. Luck (1984), 15 Ohio St.3d 150, paragraph two of the
syllabus. In so holding, the Supreme Court set forth a two-step test to determine
whether the defendant’s right to due process was violated by the delay. First, the
defendant must produce evidence demonstrating that the delay caused actual
prejudice to his defense. Luck, 15 Ohio St.3d at 154. Then, after the defendant
has established actual prejudice, the state must produce evidence of a justifiable
reason for the delay. Id. at 158. “[T]he prejudice suffered by the defendant must
be viewed in light of the state’s reason for the delay.” Id. at 154, citing United
States v. Lovasco (1977), 431 U.S. 783, 789-790.
{¶30} Review of the record reveals nothing that indicates Tatum made any
attempt to locate Jones. Considering Tatum’s statement that Jones would have
offered crucial testimony, we would expect to see something in the record
demonstrating an effort to locate Jones or to postpone the trial until Jones’
whereabouts could be secured. Furthermore, on appeal, Tatum baldly asserts that
Jones’ testimony “had a significant potential for probative information.” We find
that this assertion, without more, is insufficient to establish actual prejudice. In
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light of the foregoing, we find that Tatum failed to establish that he suffered actual
prejudice as a result of the delayed indictment.
{¶31} Even if Tatum had established that he suffered actual prejudice, the
State has offered evidence justifying the delay. The Ohio Supreme Court phrased
this step as follows:
[A] delay in the commencement of prosecution can be found to
be unjustifiable when the state’s reason for the delay is to
intentionally gain a tactical advantage over the defendant * * *
or when the state, through negligence or error in judgment,
effectively ceases the active investigation of a case, but later
decides to commence prosecution upon the same evidence that
was available to it at the time that its active investigation was
ceased.
Luck, 15 Ohio St.3d at 158.
{¶32} Tatum was originally indicted shortly after his arrest on March 6,
2008. Review of the record indicates that the original indictment was dismissed
primarily because Tatum had been placed in federal custody for a parole violation.
Accordingly, the State could not move forward with its prosecution while Tatum
was in federal custody. Nearly two years passed before the State learned that
Tatum had been released from federal custody and placed in a halfway house, at
which point the State reindicted Tatum. Due to the foregoing series of events we
find that the State did not intentionally delay prosecution of Tatum to gain a
tactical advantage. Accordingly, we find that the Tatum’s right to due process of
law was not violated by the delayed indictment.
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{¶33} Accordingly, we overrule Tatum’s first assignment of error.
Assignment of Error No. II
{¶34} In his second assignment of error, Tatum contends that the trial court
erred in denying his motion to strike testimony and his motion for mistrial.
Specifically, Tatum contends that the trial court erred when it denied his motion to
strike Lee’s testimony concerning her consent to search the residence. Tatum also
contends that the trial court erred when it denied his motion for mistrial, which
stemmed from Lentz’s testimony concerning Tatum’s possession of the black bag.
We disagree.
Motion to Strike
{¶35} An appellate court reviews the trial court’s decision on the admission
of evidence for an abuse of discretion. State v. Heft, 3d Dist. No. 8-09-08, 2009-
Ohio-5908, ¶62, citing State v. Issa, 93 Ohio St.3d 49, 64, 2001-Ohio-1290. A
trial court will be found to have abused its discretion when its decision is contrary
to law, unreasonable, not supported by the evidence, or grossly unsound. See
State v. Boles, 2d Dist. No. 23037, 2010-Ohio-278, ¶¶17-18, citing Black’s Law
Dictionary (8 Ed.Rev.2004) 11. When applying the abuse of discretion standard, a
reviewing court may not simply substitute its judgment for that of the trial court.
State v. Nagle (2000), 11th Dist. No. 99-L-089, 2000 WL 777835, citing
Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
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{¶36} Tatum contends that the State’s questioning on redirect examination
concerning the contents of the consent to search form amounted to prejudicial
surprise, and should have been stricken from the record. We disagree.
{¶37} During trial, the State called Lee to the stand. At no time during
Lee’s testimony on direct examination was there any discussion or reading of the
consent to search form signed by Lee on March 6, 2008. Instead, Tatum, on cross-
examination, questioned Lee about the consent to search form, resulting in the
following colloquy:
Q: So, uhm, did they indicate to you that they wanted to search
your residence?
A: No. They were just asking me where the drugs were.
Q: Okay. Uhm, did they start searching your residence?
A: Yes, immediately.
Q: Did they have permission from you to search the residence?
A: No. I remember when they were searching my residence and
they were going through Ali’s bag, uhm, Cortez had called me in
to the bedroom, uhm, the first bedroom to the left, and I
remember I could see the officers going through, uhm, the bag in
the kitchen and then they were in the bedroom. There was
another officer. They were everywhere, looking and - - and
searching while he was showing me the search and seizure, he
was trying to explain it to me. He told me that I had to sign it.
Q: At some point did - - did you sign the form that allowed them
to search?
A: Yeah, he told me that I had to. I was naive. I didn’t know.
So, yeah. I signed it.
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Trial Tr., pp. 440-41. This line of questioning effectively opened the door for the
State to rebut and clarify Lee’s testimony, which it did through the following
colloquy on redirect examination:
Q: Ms. Lee, I’d like you to read some sections here on State’s
Exhibit 36. Could you read the sentence here, “Knowing of my
lawful rights”?
Mr. Klepatz: Your Honor, I’m going to object.
The Court: Overruled.
Mr. Klepatz: I think that the - -
The Court: Overruled.
Mr. Klepatz: - - document stands for itself.
The Court: I understand but it’s been brought up. It’s
overruled.
The Witness: “Knowing of my lawful right to refuse to consent
to such a search, I hereby give my permission to above named
officers to conduct a complete search of the premises, property,
including all buildings, vehicles, both inside and outside of the
property located.” And, yes, I did sign this but - -
Ms. Best: That’s all I asked you.
***
Q: * * * Could you also read the sentence right here?
A. “This is written permission to search without a search
warrant is given by me to above officers voluntarily, without any
threats or promises of any kind.”
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Trial Tr., pp. 447-48. We find the foregoing line of questioning does not amount
to surprise as Tatum contends. Tatum opened the door on the subject during cross
examination, thus affording the State an opportunity to rebut and clarify Lee’s
testimony concerning the consent form. Accordingly, we find that the trial court
did not abuse its discretion in overruling Tatum’s motion to strike Lee’s
testimony.
Motion for Mistrial
{¶38} The granting or denying of a mistrial rests within the sound
discretion of the trial court. State v. Sage (1987), 31 Ohio St.3d 173, 182, citing
State v. Williams (1975), 43 Ohio St.2d 88. An appellate court will not disturb the
exercise of that discretion absent a showing that the accused has suffered material
prejudice. State v. Long (1978), 53 Ohio St.2d 91, 98; State v. Hymore (1967), 9
Ohio St.2d 122, 128, certiorari denied (1968), 390 U.S. 1024. The granting of a
mistrial is only necessary where a fair trial is no longer possible. State v. Holland,
3d Dist. No. 1-2000-88, 2001-Ohio-2192, citing State v. Franklin (1991), 62 Ohio
St.3d 118, 127.
{¶39} Tatum contends that Lentz’s testimony contradicted the statements
he made to Officer Cortez, which were reflected in Cortez’s police report.
According to Tatum, Cortez’s report indicated that Lentz stated that he did not see
Tatum with a black bag. As a result, Tatum argues that the discrepancy between
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Lentz’s statements in Cortez’s report and Lentz’s statements at trial materially
affected his right to a fair trial, thus necessitating a mistrial. We disagree.
{¶40} Although there is a slight discrepancy between Lentz’s statements in
Cortez’s report and his statements at trial, we find that Tatum was not prejudiced
by this discrepancy. The purpose of having Lentz testify as to whether he
witnessed Tatum with a black bag was to establish the fact that Tatum entered the
residence with a black bag. This fact is crucial in demonstrating possession.
However, Lentz’s testimony was not uncorroborated, as the dash camera in
Officer Dickson’s police cruiser recorded Tatum exiting the vehicle carrying a
black bag. We find that this evidence alone would have been sufficient for the
trier of fact to find, beyond a reasonable doubt, that Tatum exited the vehicle and
entered the residence with a black bag. We further note that the narrow issue
before us is a discrepancy between one man’s conflicting statements about
whether Tatum entered the residence with a black bag. This type of discrepancy is
best resolved by a jury, as it is an issue of fact (i.e. whether or not Lentz saw
Tatum enter the residence with a black bag). For these reasons we find that the
trial court did not abuse its discretion in denying Tatum’s motion for mistrial.
{¶41} Accordingly, we overrule Tatum’s second assignment of error.
Assignment of Error No. III
{¶42} In his third assignment of error, Tatum contends that the trial court
erred in denying his motions for acquittal. Specifically, Tatum contends that the
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State failed to prove that he had actual or constructive possession of the contents
within the black bag found atop the refrigerator.2 In addition, Tatum argues that
the State failed to present evidence to prove that he possessed a bulk amount of
MDMA and BZP. We disagree.
{¶43} Under Crim.R. 29(A), a court shall not order an entry of judgment of
acquittal if the evidence is such that reasonable minds can reach different
conclusions as to whether each material element of a crime has been proved
beyond a reasonable doubt. State v. Bridgeman (1978), 55 Ohio St.2d 261, 263.
A motion for acquittal tests the sufficiency of the evidence. State v. Miley (1996),
114 Ohio App.3d 738, 742.
{¶44} When an appellate court reviews a record for sufficiency, the
relevant inquiry is whether, after viewing the evidence in a light most favorable to
the prosecution, any rational trier of fact could have found the essential elements
of the crime proven beyond a reasonable doubt. State v. Monroe, 105 Ohio St.3d
384, 392, 2005-Ohio-2282, citing State v. Jenks (1981), 61 Ohio St.3d 259,
superseded by state constitutional amendment on other grounds as stated in State
v. Smith, 80 Ohio St.3d 89, 1997-Ohio-355. Sufficiency is a test of adequacy,
State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, and the question of
whether evidence is sufficient to sustain a verdict is one of law. State v. Robinson
2
We find Tatum’s argument concerning the State’s failure to offer sufficient evidence to prove that he had
possession of the black bag and its contents fails to include citations to authority and the transcript. App.R.
16(A)(7). Despite this lack of support and argument, in the interest of justice, we will address the merits of
Tatum’s contention.
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(1955), 162 Ohio St. 486, superseded by state constitutional amendment on other
grounds as stated in Smith, supra.
Possession
{¶45} The Revised Code defines “possession” as “having control over a
thing or substance, but may not be inferred solely from mere access to the thing or
substance through ownership or occupation of the premises upon which the thing
or substance is found.” R.C. 2925.01(K). The issue of whether a person charged
with drug possession knowingly possessed a controlled substance “is to be
determined from all the attendant facts and circumstances available.” State v.
Teamer, 82 Ohio St.3d 490, 492, 1998-Ohio-193.
{¶46} Possession may be actual or constructive. See State v. Haynes
(1971), 25 Ohio St.2d 264; State v. Hankerson (1982), 70 Ohio St.2d 87. For
constructive possession to exist, the State must demonstrate that the defendant was
able to exercise dominion or control over the item, even though the item may not
be within his immediate physical possession. State v. Wolery (1976), 46 Ohio
St.2d 316, 329; see also, State v. Alexander, 8th Dist. No. 90509, 2009-Ohio-597,
¶23; State v. Messer (1995), 107 Ohio App.3d 51, 56. Further, it must also be
shown that the person was conscious of the object’s presence. Hankerson, 70
Ohio St.2d at 91. Circumstantial evidence alone is sufficient to support a finding
of constructive possession. State v. Bray, 8th Dist. No. 92619, 2009-Ohio-6461,
¶24, citing State v. Jenks (1981), 61 Ohio St.3d 259, 272-73, paragraph one of the
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syllabus, superseded by state constitutional amendment on other grounds in Smith,
supra.
{¶47} The evidence presented at trial was sufficient for the trier of fact to
find that Tatum had possession of the black bag and its contents. The police
cruiser’s dash mounted video camera captured Tatum exiting the vehicle with a
black bag. Lentz testified that he witnessed Tatum enter the residence with a
black bag. Officer Cortez testified that the officers’ search of the entire residence
yielded only one black bag, which was located above the refrigerator. Both Lentz
and Lee testified that they did not own a black bag, that they were not aware of
any black bags in their residence prior to the officers’ discovery of the bag in
question, and that they did not store anything above the refrigerator. Lentz was
shown State’s exhibit one, the black bag in question, and was asked whether he
recognized the bag as the one he saw in Tatum’s possession when he entered the
residence. Although Lentz could not definitively identify State’s exhibit one as
the bag he saw in Tatum’s possession, he did testify that the bag was not his and
that he never saw Lee or Jones in possession of the bag that evening. Lee also
testified that she did not see Jones carrying a bag into the residence when he
arrived on the day in question. Considering the foregoing evidence in its entirety,
we find that there was sufficient evidence for a trier of fact to find, beyond a
reasonable doubt, that Tatum possessed the bag in question, as well as the contents
therein.
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Bulk Amount
{¶48} Tatum contends that the State failed to present enough evidence to
prove that he possessed an amount of MDMA and BZP that was more than bulk
amount but less than five times bulk amount. In addition, Tatum further contends
that the State did not sufficiently define ‘bulk amount.’ We disagree.
{¶49} We begin by noting that Tatum incorrectly suggests that the State
had the burden of defining ‘bulk amount.’ Defining the term ‘bulk amount’ is a
matter of law, not fact. Accordingly, the task of defining ‘bulk amount’ is solely
within the province of the trial court. The State’s burden is to demonstrate,
through its evidence, that the defendant possessed the requisite quantity. Review
of the record reveals that the trial court properly defined ‘bulk amount’ in its jury
instructions, thus Tatum’s contention lacks merit.
{¶50} R.C. 2925.01(D)(1)(c) defines ‘bulk amount’ for MDMA3 and BZP4
as:
(c) An amount equal to or exceeding thirty grams or ten unit
doses of a compound, mixture, preparation, or substance that is
or contains any amount of a schedule I hallucinogen other than
tetrahydrocannabinol or lysergic acid amide, or a schedule I
stimulant or depressant. [Emphasis Added.]
{¶51} At trial the State called Dobransky, who testified about the
substances found in the black bag and their amounts. Review of Dobransky’s
testimony reveals that analysis of the pills found in the black bag yielded a
3
MDMA is a schedule I hallucinogen. See R.C. 3719.41, Schedule I(C).
4
BZP is a schedule I stimulant. See R.C. 3719.41, Schedule I(E).
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Case No. 13-10-18
quantity that exceeded 10 unit doses of MDMA. Trial Tr., pp. 375-78. Further
review of the Dobransky’s testimony reveals that analysis of the pills found in the
black bag yielded a quantity that exceeded 10 unit doses of BZP. Trial Tr., pp.
362-64. In light of the definition of ‘bulk amount’ and the foregoing testimony,
we find that the State provided sufficient evidence for the trier of fact to find,
beyond a reasonable doubt, that Tatum possessed an amount of MDMA and BZP
that was more than bulk amount but less than five times bulk amount.
{¶52} Accordingly, we overrule Tatum’s third assignment of error.
Assignment of Error No. IV
{¶53} In his fourth assignment of error, Tatum contends that the trial court
erred in sentencing him to consecutive sentences, as the crimes of which he was
convicted stemmed from the same act and thus were allied offenses. We disagree.
{¶54} In determining whether two or more offenses should be merged, the
intent of the General Assembly is controlling. State v. Johnson, 128 Ohio St.3d
153, 2010-Ohio-6314, ¶46. We determine the General Assembly’s intent by
applying R.C. 2941.25, which expressly instructs courts to consider the offenses at
issue in light of the defendant’s conduct. Id. Under R.C. 2941.25, the court must
determine, prior to sentencing, whether the offenses were committed by the same
conduct. Id. at ¶47. In so determining, the court should conduct the following
analysis:
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Case No. 13-10-18
“In determining whether offenses are allied offenses of similar
import under R.C. 2941.25(A), the question is whether it is
possible to commit one offense and commit the other with the
same conduct, not whether it is possible to commit one without
committing the other. If the offenses correspond to such a degree
that the conduct of the defendant constituting commission of one
offense constitutes commission of the other, then the offenses are
of similar import.
“If the multiple offenses can be committed by the same conduct,
then the court must determine whether the offenses were
committed by the same conduct, i.e., “a single act, committed
with a single state of mind.” Brown, 119 Ohio St.3d 447, 2008–
Ohio–4569, 895 N.E.2d 149, at ¶ 50 (Lanzinger, J., dissenting).
“If the answer to both questions is yes, then the offenses are
allied offenses of similar import and will be merged.
“Conversely, if the court determines that the commission of one
offense will never result in the commission of the other, or if the
offenses are committed separately, or if the defendant has
separate animus for each offense, then, according to R.C.
2941.25(B), the offenses will not merge.”
Id. at ¶¶48–51.
{¶55} Review of the foregoing analysis reveals that the conduct giving rise
to the charges is not the only step in the analysis. First, the court must consider
“whether it is possible to commit one offense and commit the other with the same
conduct.” In conducting this analysis the court must consider the provisions of the
Revised Code that the defendant has allegedly violated.
{¶56} The pertinent portions of R.C. 2925.11 read as follows:
(A) No person shall knowingly obtain, possess, or use a
controlled substance.
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Case No. 13-10-18
***
(C) Whoever violates division (A) of this section is guilty of one
of the following:
(1) If the drug involved in the violation is a compound, mixture,
preparation, or substance included in schedule I or II, with the
exception of marihuana, cocaine, L.S.D., heroin, and hashish,
whoever violates division (A) of this section is guilty of
aggravated possession of drugs. The penalty for the offense shall
be determined as follows:
(b) If the amount of the drug involved equals or exceeds the bulk
amount but is less than five times the bulk amount, aggravated
possession of drugs is a felony of the third degree, and there is a
presumption for a prison term for the offense.
***
(c) If the amount of the drug involved equals or exceeds twenty-
five grams but is less than one hundred grams of cocaine that is
not crack cocaine or equals or exceeds five grams but is less than
ten grams of crack cocaine, possession of cocaine is a felony of
the third degree, and the court shall impose as a mandatory
prison term one of the prison terms prescribed for a felony of
the third degree.
***
(e) If the amount of the drug involved equals or exceeds five
hundred grams but is less than one thousand grams of cocaine
that is not crack cocaine or equals or exceeds twenty-five grams
but is less than one hundred grams of crack cocaine, possession
of cocaine 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.
{¶57} R.C. 2923.24 reads in pertinent part:
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(A) No person shall possess or have under the person's control
any substance, device, instrument, or article, with purpose to use
it criminally.
{¶58} R.C. 2923.13(A)(3) reads in pertinent part:
(A) Unless relieved from disability as provided in section
2923.14 of the Revised Code, 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 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 an
offense involving the illegal possession, use, sale, administration,
distribution, or trafficking in any drug of abuse.
{¶59} Having considered the foregoing provisions and in light of the facts
of the case at bar, we find that it is not possible to commit any one of the charged
offenses and commit any of the other charged offenses with the same conduct.
For instance, simultaneous possession of crack cocaine and cocaine are, pursuant
to R.C. 2925.11, separate offenses. State v. Delfino (1986), 22 Ohio St.3d 270, at
syllabus; State v. Brown, 3d Dist. No. 1-10-31, 2011-Ohio-1461, ¶41, State v.
Siefer, 3d Dist. No. 5-09-24, 2011-Ohio-1868, ¶26, citing State v. Crisp, 3d Dist.
No. 1-05-45, 2006-Ohio-2509, ¶22 (finding that the legislature intended there to
be a distinction between crack cocaine and cocaine).
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{¶60} Having found that the foregoing offenses are not allied, and thus are
not required to be merged, we proceed to address whether the trial court erred in
sentencing Tatum to consecutive sentences. An appellate court must conduct a
meaningful review of the trial court’s sentencing decision. State v.
Daughenbaugh, 3d Dist. No. 16-07-07, 2007-Ohio-5774, ¶8, citing State v. Carter,
11th Dist. No.2003-P-0007, 2004-Ohio-1181. A meaningful review means “that
an appellate court hearing an appeal of a felony sentence may modify or vacate the
sentence and remand the matter to the trial court for re-sentencing if the court
clearly and convincingly finds that the record does not support the sentence or that
the sentence is otherwise contrary to law.” Daughenbaugh, 2007-Ohio-5774, at
¶8, citing Carter, 2004-Ohio-1181, at ¶44; R.C. 2953.08(G). Having found that
the offenses are not allied, we find that the trial court’s decision to sentence Tatum
to consecutive sentences was not contrary to law and thus was proper.
{¶61} Accordingly, we overrule Tatum’s fourth assignment of error.
{¶62} Having found no error prejudicial to Tatum herein, in the particulars
assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW and PRESTON, J.J., concur.
/jnc
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