State v. Holley , 2022 Ohio 4465 ( 2022 )

[Cite as State v. Holley, 2022-Ohio-4465.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY
STATE OF OHIO, CASE NO. 2022-L-022
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas
ROMONE DONNELL HOLLEY,
Trial Court No. 2021 CR 000187
Defendant-Appellant.
OPINION
Decided: December 12, 2022
Judgment: Affirmed
Charles E. Coulson, Lake County Prosecutor, Kristi L. Winner and Laurence D.
Giegerich, Assistant Prosecutors, Lake County Administration Building, 105 Main Street,
P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).
Brian A. Smith, Brian A. Smith Law Firm, LLC, 123 South Miller Road, Suite 250,
Fairlawn, OH 44333 (For Defendant-Appellant).
MATT LYNCH, J.
{¶1} Defendant-appellant, Romone Donnell Holley, appeals from his convictions
for Possession of a Fentanyl-Related Compound and Tampering with Evidence in the
Lake County Court of Common Pleas. For the following reasons, we affirm the judgment
of the lower court.
{¶2} On July 1, 2021, Holley was indicted by the Lake County Grand Jury for
Possession of a Fentanyl-Related Compound (Count One), a felony of the fifth degree, in
violation of R.C. 2925.11(A); Tampering with Evidence (Count Two), a felony of the third
degree, in violation of R.C. 2921.12(A)(1); Receiving Proceeds Subject to Forfeiture
(Count Three), a felony of the fifth degree, in violation of R.C. 2927.21; and Possessing
Criminal Tools (Count Four), a felony of the fifth degree, in violation of R.C. 2923.24(A).
{¶3} A jury trial was held on February 1 and 2, 2022. The following pertinent
testimony and evidence were presented:
{¶4} On February 8, 2021, Lieutenant Zachary Ropos of the Lake County
Sheriff’s Office was traveling northbound on Chestnut Street and observed a vehicle drive
over the center line multiple times. He subsequently observed the car turn without a
signal and conducted a traffic stop. Ropos made contact with Holley, the driver and sole
occupant of the vehicle. Before Ropos was able to advise Holley of the reason for the
stop, Holley began stating that he “can’t breathe” and explained that this was why he
removed his seatbelt. Holley was sitting with his body “bladed,” blocking the passenger
seat and area between the seats from Ropos’ view. Ropos then observed a substance
he believed to be marijuana on the passenger’s seat and requested that Holley exit the
vehicle. Upon searching Holley’s person, Ropos discovered $3,869 in one pocket and
two cell phones in the other.
{¶5} Ropos placed Holley in his cruiser and conducted a search of the vehicle,
leaving the phones in Holley’s possession. He recovered the marijuana as well as a small
bag with an off-white substance which he believed to be a narcotic. He described the
baggie as being located “right next to the gear shifter of the vehicle” and also as “just in
front of” the shifter. A photograph of the area near the shifter was presented, which he
described as “where the small baggie of [white] powdered substance was located.”
{¶6} When Ropos returned to his cruiser, he observed that one of the cell phones
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was broken. He testified that when he had observed it during the prior search of Holley,
it “still flipped open” and was in working order. Ropos inquired why Holley broke the
phone. Holley responded that, if he were given a personal recognizance bond, Holley
could “get a large load of that crack cocaine from Columbus. He then indicated that the
number that he would need to call was on that cell phone.” According to Ropos, Holley
was “willing to offer his knowledge of narcotics to purchase drugs for the Lake County
Sheriff’s Office.” Deputy Thomas McClurkin, who responded to the scene of the stop,
also testified that he heard the statement about making a deal to buy narcotics.
{¶7} Kimberly Gilson, a forensic analyst at the Lake County Crime Lab, tested
the white substance located in Holley’s vehicle and determined that it was a fentanyl-
related compound.
{¶8} The jury found Holley guilty of Counts One and Two and not guilty of Counts
Three and Four. Following a sentencing hearing, the court sentenced Holley on the
present matter as well as pending charges in two separate cases. It ordered that Holley
serve a term of eleven months in prison for Count One and thirty months for Count Two,
to be served concurrent with each other and with the other cases. This sentence was
memorialized in a March 2, 2022 Judgment Entry.
{¶9} Holley timely appeals and raises the following assignments of error:
{¶10} “[1.] Appellant’s convictions were against the manifest weight of the
evidence.
{¶11} “[2.] Appellant’s conviction for Tampering with Evidence was not supported
by sufficient evidence.
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{¶12} “[3.] The trial court abused its discretion in denying Appellant’s motion to
dismiss his trial counsel and to represent himself, in violation of Appellant’s right to
counsel under the Sixth and Fourteenth Amendments to the United States Constitution
and Article I, Section 10 of the Ohio Constitution.”
{¶13} We will consider the first and second assignments of error jointly since they
deal with the interrelated issues of the weight and sufficiency of the evidence. In his first
assignment of error, Holley argues that the conviction for Possession of a Fentanyl-
Related Compound is against the weight of the evidence because Ropos did not identify
with sufficient specificity where the substance was found in relation to the gear shift to
prove constructive possession. As to Tampering with Evidence, he argues that the State
did not demonstrate he acted with purpose to alter evidence since it was not shown the
phone was broken while he was in the cruiser.
{¶14} A challenge to the sufficiency of the evidence raises the issue of “whether
the evidence is legally sufficient to support the jury verdict as a matter of law.” State v.
Clinton, 153 Ohio St.3d 422, 2017-Ohio-9423, 108 N.E.3d 1, ¶ 165. In reviewing the
sufficiency of the evidence, “[t]he 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. Jenks, 61
Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶15} In contrast to sufficiency, “weight of the evidence addresses the evidence’s
effect of inducing belief.” (Citation omitted.) State v. Wilson, 113 Ohio St.3d 382, 2007-
Ohio-2202, 865 N.E.2d 1264, ¶ 25. An appellate court must consider all the evidence in
the record, the reasonable inferences, the credibility of the witnesses, and whether, “in
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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.”
(Citation omitted.) State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).
{¶16} In order to convict Holley of Possession of a Fentanyl-Related Compound,
the State had to prove, beyond a reasonable doubt, that he did “knowingly * * * possess”
such substance. R.C. 2925.11(A).
{¶17} Holley argues that the weight of the evidence did not demonstrate his
possession of the drugs due to the failure to show exactly where they were located within
the vehicle and that he was aware of their presence.
{¶18} Possession is defined 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).
{¶19} “Possession of drugs can be either actual or constructive.” (Citation
omitted.) State v. Tackett, 11th Dist. Ashtabula No. 2018-A-0052, 2019-Ohio-5188, ¶ 25.
“Constructive possession exists when an individual knowingly exercises dominion and
control over an object, even though that object may not be within his immediate physical
possession.” (Citation omitted.) State v. Perry, 11th Dist. Lake No. 2021-L-005, 2021-
Ohio-2183, ¶ 27. “The discovery of readily accessible drugs in close proximity to the
accused constitutes circumstantial evidence that the accused was in constructive
possession of the drugs.” (Citation omitted.) State v. Mickey, 12th Dist. Clermont Nos.
CA2019-07-055 and CA2019-07-056, 2020-Ohio-1432, ¶ 27; State v. Meddock, 2017-
Ohio-4414, 93 N.E.3d 43, ¶ 59 (4th Dist.).
{¶20} The finding that Holley was in possession of the drugs was supported by
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the weight of the evidence. Ropos’ testimony demonstrated that the baggie was
discovered “right next to the gear shifter of the vehicle.” Regardless of whether Ropos
described in detail the precise location near the shifter where the drugs were discovered,
there can be no dispute that the area described is in “close proximity” to the driver and is
not hidden from view. The drugs were accessible to Holley by virtue of their location in
that area. There were no other passengers present in the car such that it could be argued
the drugs belonged to another, which also undercuts an argument that Holley was
unaware of the drugs.
{¶21} The State observes that exhibit 5B, a photograph taken inside of the car,
shows clear plastic which looks like a baggie directly in front of the gear shifter. While it
is difficult to determine in the picture whether this contains drugs, it appears from this
picture combined with the testimony that it is the location of the drugs. While Holley
argues that the record is unclear whether the drugs were in that picture, even if it does
not, the testimony alone establishes their location. Other facts also supported Holley’s
knowledge and possession of the drugs in the car, such as the fact that he moved his
body in a way to block Ropos’ view inside the car and subsequent statements about being
able to obtain drugs as an informant. Under these circumstances, we do not find the
conviction to be against the weight of the evidence. See State v. Morales, 5th Dist. Licking
No. 2004 CA 68, 2005-Ohio-4714, ¶ 51 (possession conviction was supported by the
weight of the evidence when drugs were found in the console around the gear shift in a
car driven by the appellant); State v. Dorsey, 10th Dist. Franklin No. 04AP-737, 2005-
Ohio-2334, ¶ 33, 38 (where a gun was in close proximity to the gear shift, the appellant
had the ability to “easily exercise dominion and control” over it and a finding of
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constructive possession was supported by the weight of the evidence).
{¶22} Holley also argues that his conviction for Tampering with Evidence is
against both the weight and sufficiency of the evidence.
{¶23} To convict Holley of Tampering with Evidence, the State was required to
prove, beyond a reasonable doubt, that he did, “knowing that an official proceeding or
investigation is in progress, or is about to be or likely to be instituted, * * * [a]lter, destroy,
conceal, or remove any record, document, or thing, with purpose to impair its value or
availability as evidence in such proceeding or investigation.” R.C. 2921.12(A)(1).
{¶24} “A person acts knowingly, regardless of purpose, when the person is aware
that the person’s conduct will probably cause a certain result or will probably be of a
certain nature. A person has knowledge of circumstances when the person is aware that
such circumstances probably exist.” R.C. 2901.22(B). “Under R.C. 2921.12(A)(1), the
court does not impute constructive knowledge on the defendant.” State v. Camacho, 11th
Dist. Lake No. 2021-L-054, 2021-Ohio-3975, ¶ 24, citing State v. Barry, 145 Ohio St.3d
354, 2015-Ohio-5449, 49 N.E.3d 1248, ¶ 24. “Rather, the defendant must be subjectively
aware that his conduct will probably cause a certain result or that circumstances probably
exist.” Id.{¶25} Ropos testified that he initially removed the phone from Holley’s pocket
before placing him in the cruiser, flipped it open, and did not observe it to be broken at
that time. He placed Holley in the cruiser with the phone still in Holley’s possession.
When Ropos returned, the phone was broken in half. This, coupled with Holley’s
statement that he could call a contact to obtain drugs and the drugs found in his vehicle,
supported a conclusion that he broke the phone to destroy or conceal evidence related
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to potential drug deals or drug-related charges. Destruction of a cell phone to avoid its
use in an investigation supports a conviction for Tampering with Evidence. State v.
Queen, 3d Dist. Hardin No. 6-20-13, 2021-Ohio-1131, ¶ 46. Holley’s statements show
he was aware he would face charges for the drug possession and the fact that he had
been removed from the car, patted down, and placed in a cruiser demonstrated that an
investigation was ongoing. As this court observed in Camacho, circumstantial evidence
can be used to prove that an investigation was likely to be instituted and it is reasonable
to infer a defendant’s subjective knowledge of a likely investigation when a crime has
been committed. Id. at ¶ 25-26.
{¶26} Holley argues that the State cannot prove the phone was not already
damaged when Holley was placed in the cruiser. Ropos, however, testified that when he
first observed the cell phone, it was functioning, flipped open, and was “intact.” When he
observed it minutes later, it was “broken in half.” Ropos’ testimony supported a finding
that the phone had been broken. While it may have functioned, Holley still altered and
caused damage to the phone. His lack of success in rendering it completely nonfunctional
does not mean he did not intend to or have a purpose to destroy it.
{¶27} Holley argues that there was no video from the cruiser presented to show
how the damage occurred and the State cannot prove what caused the damage. We will
not speculate as to whether such video existed or why it was not introduced. Based on
the facts presented, the jury could reasonably conclude that Holley, who was alone in the
cruiser, caused the damage as cell phones generally do not snap in half while an
individual is sitting in a vehicle.
{¶28} The first and second assignments of error are without merit.
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{¶29} In his third assignment of error, Holley argues that the trial court erred in
denying his motion to represent himself and dismiss counsel, which was supported by his
claims that counsel failed to ask questions he requested on cross-examination and failed
to communicate with him about his case. He emphasizes that allowing him to represent
himself following the close of the State’s case would have caused minimal disruption of
the trial and would not have raised any concerns with the court’s schedule.
{¶30} “[T]he right to counsel of one’s choice is an essential element of the Sixth
Amendment right to have the assistance of counsel for one’s defense.” (Citation omitted.)
State v. Howard, 11th Dist. Lake No. 2019-L-153, 2020-Ohio-5057, ¶ 27. However, “the
essential aim of the Amendment is to guarantee an effective advocate for each criminal
defendant rather than to ensure that a defendant will inexorably be represented by the
lawyer whom he prefers.” Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692,
100 L.Ed.2d 140 (1988). A defendant with court-appointed counsel may discharge such
counsel if he can “show a breakdown in the attorney-client relationship of such a
magnitude as to jeopardize the defendant’s right to effective assistance of counsel.” State
v. Coleman, 37 Ohio St.3d 286, 525 N.E.2d 792 (1988), paragraph four of the syllabus.
{¶31} Courts have “wide latitude in balancing the right to counsel of choice against
the needs of fairness * * * and against the demands of its calendar.” United States v.
Gonzalez-Lopez, 548 U.S. 140, 152, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006). In
particular, “trial courts continue to have the authority to limit a defendant’s right to counsel
of choice when faced with a belated request to change attorneys.” State v. Daniels, 11th
Dist. Trumbull No. 2019-T-0079, 2019-Ohio-5314, ¶ 15.
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{¶32} As to Holley’s request to represent himself, the Sixth Amendment
guarantees that “a defendant in a state criminal trial has an independent constitutional
right of self-representation and that he may proceed to defend himself without counsel
when he voluntarily, and knowingly and intelligently elects to do so.” State v. Gibson, 45
Ohio St.2d 366, 345 N.E.2d 399 (1976), paragraph one of the syllabus. However,
“[w]here the right to self-representation is invoked after the commencement of trial, ‘the
denial of the right is reviewed under the abuse of discretion standard.’” State v. March-
Natali, 11th Dist. Trumbull No. 2022-T-0022, 2022-Ohio-4061, ¶ 15, citing State v.
Struble, 11th Dist. Lake No. 2016-L-108, 2017-Ohio-9326, ¶ 35.
{¶33} After the State rested, Holley indicated to the court that he had not had
meetings with his lawyer to review his case and he did not know anything about the case,
which he characterized as “ineffective appropriate counsel.” He indicated that he was
given a police report one day prior to trial and that defense counsel did not ask questions
he requested. Holley asked that he be given additional time to “go over” his case and
then stated: “I don’t want to proceed with this.” Defense counsel indicated that the prior
day, she had discussed with Holley a potential desire to represent himself but after further
discussion, he retracted those comments. The court determined that defense counsel
provided competent representation and would remain as his counsel. It considered pro-
se motions Holley had attempted to file relating to dismissal of the charges and jurisdiction
and determined that Holley had made unlawful arguments, had an inability to follow rules
of procedure and evidence, and would not be competent to represent himself. The matter
proceeded to closing arguments.
{¶34} Holley did not express to the court the desire to represent himself until the
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middle of the trial after the State rested. At that point, all cross-examination of the State’s
witnesses was completed and there was no additional evidence to be presented. The
court considered the positions of both sides and was able to view the actions of defense
counsel and her litigation of the case. Defense counsel represented that she had
discussed the case with her client. The court allowed Holley to state on the record
questions he believed counsel should have asked and determined such questions lacked
merit or would not be proper on procedural grounds. Further, courts have consistently
upheld denial of similar requests made at a late stage in proceedings, noting their use as
a delaying tactic. See State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d
81, at ¶ 41 (defendant was represented by counsel for ten months and did not ask to
discharge counsel and proceed alone until he sought a “last-minute” continuance and
thus, his request to represent himself was sought to delay trial); State v. Kramer, 3d Dist.
Defiance No. 4-15-14, 2016-Ohio-2984, ¶ 13 (“Kramer’s self-representation request—
which was made on the second day of trial—was untimely”). In the present matter, we
find no abuse of discretion in rejecting Holley’s request and proceeding to the conclusion
of the trial.
{¶35} While Holley argues that allowing him to represent himself at this stage
would cause “minimal disruption,” it is evident the court had concerns that he would be
unable to follow the procedural rules necessary to carry through with the trial and it would
likely also cause confusion to the jurors. The court was permitted to weigh the amount of
disruption, potential delay, and whether the request was a delaying tactic in determining
whether to allow Holley to dismiss counsel and represent himself and its exercise of
discretion was not improper.
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{¶36} The third assignment of error is without merit.
{¶37} For the foregoing reasons, Holley’s convictions for Possession of a
Fentanyl-Related Compound and Tampering with Evidence are affirmed. Costs to be
taxed against appellant.
JOHN J. EKLUND, P.J.,
FREDERICK D. NELSON, J., Ret., Tenth Appellate District, sitting by assignment,
concur.
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