State v. Taylor , 2020 Ohio 5097 ( 2020 )

[Cite as State v. Taylor, 2020-Ohio-5097.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. W. Scott Gwin, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 2019 CA 0117
HERBERT TAYLOR
Defendant-Appellant O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Richland County Court of
Common Pleas, Case No. 2019 CR 0341
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 29, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GARY BISHOP ERIC J. ALLEN
Prosecuting Attorney 4200 Regent, Suite #200
Richland County, Ohio Columbus, Ohio 43219
JOSEPH C. SNYDER
Assistant Prosecuting Attorney
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 2019 CA 0117 2
Hoffman, P.J.
{¶1} Defendant-appellant Herbert Taylor appeals his conviction and sentence
entered by Richland County Court of Common Pleas, on one count of possession of
cocaine with a forfeiture specification, following a jury trial. Plaintiff-appellee is the state
of Ohio.
STATEMENT OF THE CASE AND FACTS
{¶2} On April 18, 2019, the Richland County Grand Jury indicted Appellant on
one count of possession of cocaine, in violation of R.C. 2925.11(A) and (C)(4)(f), a felony
of the first degree, with an attendant forfeiture specification. Appellant appeared for
arraignment on April 30, 2019, and entered a plea of not guilty to the Indictment.
{¶3} The trial court originally scheduled the matter for trial on July 8, 2019, but
continued the trial until October 28, 2019, upon Appellant’s request. Appellant filed a
motion to suppress on October 24, 2019. The trial court overruled the motion as untimely
pursuant to Crim. R. 12(D).
{¶4} At trial, Cuyahoga County Sheriff’s Deputy Michael Twombly, who serves
as a detective in the K9 narcotics unit, testified he works on an FBI task force assigned
to the postal service. Det. Twombly’s duties include parcel interdiction, detecting
packages which might contain narcotics. Det. Twombly and his K9 partner, Ciga, were
on duty at the Cleveland postal facility on February 7, 2019, when he seized a suspicious
package. The detective brought the package to a different area of the facility where it was
hidden among parcels, luggage, and other items. When Ciga was unleashed, he alerted
to the suspicious package.
{¶5} Det. Twombly sought and obtained a federal search warrant to open the
package. Upon opening the package, the detective found what appeared to be a wrapped
Richland County, Case No. 2019 CA 0117 3
gift. He removed the wrapping paper and discovered a freezer bag of what was ultimately
determined to be cocaine. Det. Twombly explained over 100 grams of the cocaine would
be repackaged with a box beacon, a GPS monitoring device which also notifies police
when the package is opened,1 and a controlled delivery would be conducted.
{¶6} Mansfield Police Sergeant Steve Blust, who is assigned to the METRICH
Enforcement Unit, testified he received a phone call on February 7, 2019, from U.S. postal
inspectors advising him they had intercepted a package containing cocaine with an
intended delivery address of 222 Penn Ave., Mansfield, Ohio. Postal inspectors delivered
the package to Sgt. Blust to conduct the controlled delivery. The inspectors and Sgt.
Blust developed a raid plan, which included surveillance and the use of a postal inspector
dressed as a mail carrier who would deliver the package.
{¶7} Later that day, Sgt. Blust and Detective Wayne Liggett drove by the area
and the delivery location to check vehicles and license plates at the address as well as
ascertain a description of the house. During the drive-by, Sgt. Blust and Det. Liggett
observed Appellant speaking with two females inside a vehicle parked in the driveway of
222 Penn Ave. The controlled delivery was scheduled for February 8, 2019.
{¶8} On February 8, 2019, the postal inspectors and members of their unit
arrived at METRICH. The cocaine was repackaged with the box beacon. Sgt. Blunt,
federal officers, and members of METRICH proceeded to their assigned positions in the
vicinity of 222 Penn Ave. Sgt. Blunt and the agent with him observed a Pontiac Grand
Prix with the engine running parked in front of 222 Penn Ave. When the postal inspector,
dressed as mail carrier, delivered the package, he also observed two individuals sitting in
1An amount enough to meet the major trafficker threshold.
Richland County, Case No. 2019 CA 0117 4
a Grand Prix parked at the address. The postal inspector returned to his vehicle and left
the area.
{¶9} Appellant exited the vehicle from the passenger side and grabbed the
package. The Grand Prix drove off. Appellant walked through several backyards to
another street where the Grand Prix was waiting to pick him up. Shortly after Appellant
reentered the vehicle, the box beacon alarm went off, indicating the package had been
opened. Officers blocked the street and initiated a stop of the vehicle. When Appellant
was arrested, the package was sitting on his lap. Akili Roberts was identified as the driver
of the vehicle. Officers learned Roberts was the registered owner of the Grand Prix.
{¶10} Anthony Tambasco, Director of the Mansfield Police Department Forensic
Science Laboratory, analyzed the substance found in the package and confirmed it was,
in fact, cocaine. The amount of cocaine in Appellant's possession totaled 119.7 grams.
The weight of the cocaine which had been removed from the package prior to the
controlled delivery was 369.4 grams for a total weight of 489.1 grams.
{¶11} Officers found $461 on Appellant's person and $842 on Roberts’ person.
Appellant was unemployed at the time of his arrest. Officers seized four cell phones,
which were submitted to the Mansfield Crime Laboratory for analysis. Richland County
Sherriff’s Detective Wayne Liggett, who is assigned to the METRICH Enforcement Task
Force, testified he downloaded the contents of three of the phones seized on February 8,
2019. Det. Liggett explained he was unable to break the security encryption on the fourth
phone. Photographs were downloaded from one of the phones, which Det. Liggett
ascertained belonged to Appellant. A photograph taken on February 5, 2019, depicted
Appellant with a large amount of cocaine. On a phone belonging to Roberts, Det. Liggett
Richland County, Case No. 2019 CA 0117 5
found a screen shot of the tracking number for the package Appellant had on his person
at the time of his arrest.
{¶12} Appellant testified on his own behalf. Appellant stated he purchased the
property at 222 Penn Ave. in January, 2018. He explained he never moved into the
house, and instead rented the property. Appellant leased the property to Brandy Miller
for a period of one year between February, 2018, and February, 2019.
{¶13} Appellant described the events leading up to his arrest. He had left his truck
at 222 Penn Ave. as he was having issues with the transmission. Appellant planned to
meet his cousin, Akili Roberts, at the house on February 8, 2019, to have his truck
repaired. A friend dropped him off at the Penn Ave. residence. When Roberts arrived,
Appellant entered the car and the two men sat and talked while they waited for a man
named “Luke”, who was going to repair Appellant’s truck, to arrive. Appellant observed
the mailman deliver the package. Because Miller was in county jail, Appellant retrieved
the package. Appellant stated Roberts drove away with Appellant’s phone. When
Roberts realized he had Appellant’s phone, Roberts was unable to stop because another
car was behind his Grand Prix. Appellant knew Roberts would drive around the block.
Appellant decided to walk through his neighbor’s backyard to catch up with Roberts.
Roberts stopped suddenly when he saw Appellant walking towards the car. Appellant
explained he opened the package because the contents were jiggling around and he was
curious. Appellant indicated he had the large amount of cash on his person as he had
gone to the credit union to get money to pay for the repairs to his truck.
{¶14} On cross-examination, Appellant admitted he was not employed on the date
of his arrest. He did not have any documentation to verify the money he received from
Richland County, Case No. 2019 CA 0117 6
the credit union. Appellant acknowledged he was at the Penn Ave. residence on February
7, 2019, but denied he was waiting for a package. Appellant could not explain why
Roberts had an image of the tracking number for the package on his phone.
{¶15} Following the presentation of the evidence and closing arguments, the trial
court instructed the jury on the applicable law. After deliberating, the jury found Appellant
guilty as charged. The trial court sentenced Appellant to the mandatory period of
incarceration of eleven years.
{¶16} It is from his conviction and sentence Appellant appeals, raising the
following assignments of error:
I. THE CONVICTIONS IN THIS MATTER ARE NOT SUPPORTED
BY THE MANIFEST WEIGHT OF THE EVIDENCE VIOLATIVE OF
APPELLANT’S RIGHT TO DUE PROCESS GUARANTEED BY THE
FOURTEENTH AMENDMENT TO THE FEDERAL CONSTITUTION
II. THE TRIAL COURT COMMITTED PLAIN ERROR BY NOT
DISMISSING A JUROR WHO COMMITTED MISCONDUCT.
I.
{¶17} In his first assignment of error, Appellant challenges his conviction as
against the manifest weight of the evidence.
{¶18} In determining whether a verdict is against the manifest weight of the
evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record,
weighs the evidence and all reasonable inferences, considers the credibility of witnesses,
Richland County, Case No. 2019 CA 0117 7
and determines whether in resolving conflicts in evidence the jury ‘clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and
a new trial ordered’.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997),
quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1983).
{¶19} “The weight to be given the evidence and the credibility of the witnesses are
primarily for the trier of the facts.” State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212(1967), at paragraph one of the syllabus. The trier of fact is in the best position to judge
the credibility of the witnesses.
{¶20} Appellant was convicted of R.C. 2925.11 (A) and (C)(4)(f), which provides:
No person shall knowingly obtain, possess, or use a controlled
substance or a controlled substance analog.
**
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:
**
(f) If the amount of the drug involved equals or exceeds one hundred
grams of cocaine, possession of cocaine is a felony of the first degree, the
Richland County, Case No. 2019 CA 0117 8
offender is a major drug offender, and the court shall impose as a
mandatory prison term a maximum first degree felony mandatory prison
term. R.C. 2925.11.
{¶21} Appellant argues the state failed to prove he knowingly possessed the
cocaine found in the package. He points to his testimony at trial in which he acknowledged
he was outside the Penn Ave. residence, but noted he was merely waiting for an individual
by the name of “Luke” to arrive to repair his truck. Roberts arrived and Appellant sat in
his vehicle as he continued to wait. Appellant observed the carrier deliver the package.
Appellant explained, because he knew Brandy Miller, who rented the home from him, was
in jail, he picked up the package.
{¶22} “ ‘Possess’ or ‘possession’ means 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.”
Former R.C. 2925.01(L), current R.C. 2925.01(K). However, possession may be actual
or constructive. State v. Garza, 5th Dist. Stark No. 2020CA00018, 2020-Ohio-4001, ¶16,
citing State v. Butler, 42 Ohio St.3d 174, 176, 538 N.E.2d 98 (1989).
{¶23} To establish constructive possession, the evidence must prove the
defendant was able to exercise dominion and control over the contraband. State v.
Wolery, 46 Ohio St.2d 316, 332, 348 N.E.2d 351(1976). Dominion and control may be
proven by circumstantial evidence alone. Garza, supra, at ¶16, citing State v. Trembly,
137 Ohio App.3d 134, 738 N.E.2d 93 (2000). Circumstantial evidence establishing the
defendant was located in very close proximity to the contraband may show constructive
Richland County, Case No. 2019 CA 0117 9
possession. State v. Butler, supra; State v. Morales, 5th Dist. Licking No. 2004 CA 68,
2005-Ohio-4714, ¶ 50. “Establishment of ownership is not required.” State v. Rastbichler,
2d Dist. Montgomery No. 25753, 2014-Ohio-628, ¶ 33. 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, 696 N.E.2d 1049 (1998).
{¶24} Upon review of the evidence as set forth in our Statement of the Case and
Facts, set forth supra, as well as the testimony presented at trial, we find Appellant's
conviction was not against the manifest weight of the evidence. On February 7, 2019,
Sgt. Blust received a phone call from U.S. postal inspectors advising him they had
intercepted a package containing cocaine with an intended delivery address of 222 Penn
Ave., Mansfield, Ohio. Postal inspectors and Sgt. Blust developed a raid plan for a
controlled delivery.
{¶25} Later that day, Sgt. Blust and Det. Liggett drove by the area to check
vehicles and license plates at the address as well as to ascertain a description of the
house. During the drive-by, Sgt. Blust and Det. Liggett observed Appellant speaking with
two females inside a vehicle parked in the driveway of 222 Penn Ave. The controlled
delivery was scheduled for the following day.
{¶26} On February 8, 2019, Sgt. Blunt, federal officers, and members of
METRICH proceeded to their assigned positions in the vicinity of 222 Penn Ave. Officer
Blunt and the agent with him observed a Pontiac Grand Prix parked with the engine
running in front of 222 Penn Ave. The postal inspector, dressed as a mail carrier, also
Richland County, Case No. 2019 CA 0117 10
observed two individuals sitting in a Pontiac Grand Prix parked at the address as he
delivered the package.
{¶27} After the postal inspector returned to his truck and left, Appellant exited the
vehicle and grabbed the package. The Grand Prix drove off. Appellant walked through
several backyards to another street where the Grand Prix was stopped on the street,
waiting to pick him up. Appellant reentered the vehicle and immediately opened the
package. Officers blocked the street and initiated a stop of the vehicle. When Appellant
was arrested, the package was sitting on his lap. Pictures of drugs were found on
Appellant’s cell phone. A picture taken on February 5, 2019, depicted Appellant with a
large amount of cocaine. A screen shot of the package tracking number was found on
Roberts’ phone.
{¶28} The jury was free to accept or reject any or all of the evidence offered by
the parties and assess the witnesses' credibility. Indeed, the jurors need not believe all of
a witness' testimony, but may accept only portions of it as true. State v. McGregor, 5th
Dist. Ashland No. 15-COA-023, 2016-Ohio-3082, 2016 WL 294299. The jury clearly
believed the testimony of the state's witnesses, over Appellant’s explanation of the
events, and concluded Appellant was aware of the contents of the package; therefore,
possessed the cocaine in question.
{¶29} Upon review of the entire record, including reading the entire transcript, we
find Appellant's conviction was not against the manifest weight of the evidence.
{¶30} Appellant’s first assignment of error is overruled.
Richland County, Case No. 2019 CA 0117 11
II
{¶31} In his second assignment of error, Appellant maintains the trial court
committed plain error by failing to dismiss a juror who committed misconduct. We
disagree.
{¶32} Before closing arguments, the trial court learned Det. Wheeler, one of the
state’s witnesses, had overheard a comment made by Juror No. 5 to Juror No. 9, while
the three men were in the restroom. Juror No. 9 remarked, “This is a hard case, isn’t it?”,
or something to that effect. Juror No. 5 did not respond. In the presence of counsel, the
trial court brought Juror No. 9 into chambers to inquire of him. Juror No. 9 indicated he
had not formed or expressed any opinions, was able to keep an open mind, and had not
decided the case. Likewise, the trial court brought Juror No. 5 into chambers to inquire
of him. Juror No. 5 acknowledged making the comment, but stated he had not formed an
opinion or made a decision about the case. The trial court suggested Juror No. 5 be made
the alternate. The prosecutor and counsel for Appellant agreed.
{¶33} Where the defense did not request a remedy at trial and expressed no
dissatisfaction with the trial court's handling of alleged juror misconduct, we review
for plain error. State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, 837 N.E.2d 315,
¶ 185.
{¶34} Pursuant to Crim.R. 52(B), notice of plain error 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, 91, 372 N.E.2d 804 (1978).
Generally, a court will not reverse a judgment based upon juror misconduct unless the
complaining party shows they were prejudiced by the misconduct. State v. Mack, 8th Dist.
Richland County, Case No. 2019 CA 0117 12
Cuyahoga No. 93091, 2010-Ohio-1420, ¶ 16, citing State v. Keith, 79 Ohio St.3d 514,
526, 684 N.E.2d 47 (1997).
{¶35} Appellant submits the trial court should have dismissed Juror No. 5, asking,
“What happens if a juror were to get ill?” Brief of Appellant at 7. Appellant’s question is
merely speculative. Juror No. 5 was made the alternate and did not participate in
deliberations. None of the jurors became ill or were, in any other way, unable to complete
deliberations. Speculation is outside the scope of this Court’s review. We find Appellant
is unable to establish he was prejudiced by the misconduct. Thus, we find that
no plain error exists which has caused a manifest miscarriage of justice in the case sub
judice.
{¶36} Appellant’s second assignment of error is overruled.
{¶37} The judgment of the Richland County Court of Common Pleas is affirmed.
By: Hoffman, P.J.
Gwin, J. and
Baldwin, J. concur