State v. Cooper , 2012 Ohio 3058 ( 2012 )

[Cite as State v. Cooper, 2012-Ohio-3058.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
STATE OF OHIO : Patricia A. Delaney, P.J.
: William B. Hoffman, J.
Plaintiff-Appellee : Julie A. Edwards, J.
:
-vs- : Case No. 11CA0125
:
:
SHERRON COOPER : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal Appeal from Licking County
Court of Common Pleas Case No.
11 CR 00380
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 29, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KENNETH OSWALT PAUL E. MORRISON
Licking County Prosecutor 100 E. Main Street
Columbus, Ohio 43215
BY: EARLY L. FROST
Assistant Prosecuting Attorney
Licking County Prosecutor’s Office
20 S. Second Street, 4th Floor
Newark, Ohio 43055
[Cite as State v. Cooper, 2012-Ohio-3058.]
Edwards, J.
{¶1} Appellant, Sherron Cooper, appeals a judgment of the Licking County
Common Pleas Court convicting him of trafficking in cocaine with a finding that the
offense was committed in the presence of a juvenile (R.C. 2925.03(A)(1)(C)(4)(b)).
Appellee is the State of Ohio.
STATEMENT OF FACTS AND CASE
{¶2} Detective Alan Thomas of the Licking County Sheriff’s Department set up
a controlled drug buy between appellant and a confidential informant. The confidential
informant, Joe Gerritsen, knew appellant by the street name of “Tink.” In two recorded
telephone calls, Tink agreed to sell the informant an ounce of cocaine for $850.
{¶3} On July 28, 2011, Gerritsen met appellant in the parking lot of a Kroger’s
store in Johnstown, Ohio. Detective Thomas parked in the lot to observe the deal. A
minivan was parked next to Detective Thomas. Inside the minivan were children,
around 5-8 years of age, and an infant. Instead of selling Gerritsen an ounce of cocaine
for $850, the deal was changed to half an ounce for $450. The deal was conducted as
planned in the parking lot.
{¶4} Subsequent to the sale, Detective Thomas and Detective Kyle Boerstler
stopped appellant’s vehicle. Appellant had in his possession the marked money used
for the controlled buy. Appellant was questioned and admitted to offering to sell cocaine
to Gerritsen. However, the substance which appellant sold to Gerritsen was found to be
baby powder after testing.
Licking County App. Case No. 11CA0125 3
{¶5} Appellant was indicted by the Licking County Grand Jury with trafficking in
cocaine, with a specification that the crime occurred within 100 feet of a juvenile,
elevating the degree of the offense from a fifth degree felony to a fourth degree felony.
{¶6} The case proceeded to jury trial in the Licking County Common Pleas
Court. Appellant was convicted as charged and sentenced to 15 months incarceration.
He assigns three errors on appeal:
{¶7} “I. THE TRIAL COURT ERRED IN FAILING TO DISMISS THE SALE OF
COCAINE IN THE PRESENCE OF JUVENILES SPECIFICATION WHERE THE
FACTS OF THE CASE FAIL TO MEET THE STATUTORY REQUIREMENTS.
{¶8} “II. THE TRIAL COURT’S FINDING OF GUILT IS AGAINST THE
MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
{¶9} “III. INEFFECTIVE ASSISTANCE OF COUNSEL.”
I
{¶10} In his first assignment of error, appellant argues that the court erred in
failing to dismiss the specification that the sale took place in the presence of juveniles
because the substance he sold to the informant was baby powder, not cocaine.
{¶11} R.C. 2925.03(A)(1) provides:
{¶12} “(A) No person shall knowingly do any of the following:
{¶13} “(1) Sell or offer to sell a controlled substance;”
{¶14} Appellant clearly could be convicted of violating R.C. 2925.03(A)(1) for
offering to sell cocaine, even though the substance was actually baby powder, not
cocaine. The Ohio Supreme Court has held that a conviction for R.C. 2925.03(A)(1)
Licking County App. Case No. 11CA0125 4
can stand despite the fact that the substance offered as cocaine was actually baking
soda. State v. Chandler, 109 Ohio St.3d 223, 2006-Ohio-2285, 846 N.E.2d 1234, ¶9.
{¶15} However, the Chandler court went on to hold that the defendant could not
be sentenced under the major drug offender specification found in R.C.
2925.03(C)(4)(g) unless the substance offered for sale contained some detectable
amount of the relevant controlled substance. Id. at syllabus. R.C. 2925.03(C)(4) sets
forth the penalties for trafficking in cocaine:
{¶16} “(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 trafficking in cocaine. The penalty for the offense shall be determined
as follows:
{¶17} “(a) Except as otherwise provided in division (C)(4)(b), (c), (d), (e), (f), or
(g) of this section, trafficking in cocaine is a felony of the fifth degree, and division (C) of
section 2929.13 of the Revised Code applies in determining whether to impose a prison
term on the offender.
{¶18} “(b) Except as otherwise provided in division (C)(4)(c), (d), (e), (f), or (g) of
this section, if the offense was committed in the vicinity of a school or in the vicinity of a
juvenile, trafficking in cocaine is a felony of the fourth degree, and division (C) of section
2929.13 of the Revised Code applies in determining whether to impose a prison term on
the offender.
{¶19} “(c) Except as otherwise provided in this division, if the amount of the drug
involved equals or exceeds five grams but is less than ten grams of cocaine, trafficking
in cocaine is a felony of the fourth degree, and division (B) of section 2929.13 of the
Licking County App. Case No. 11CA0125 5
Revised Code applies in determining whether to impose a prison term for the offense. If
the amount of the drug involved is within that range and if the offense was committed in
the vicinity of a school or in the vicinity of a juvenile, trafficking in cocaine is a felony of
the third degree, and there is a presumption for a prison term for the offense.
{¶20} “(d) Except as otherwise provided in this division, if the amount of the drug
involved equals or exceeds ten grams but is less than twenty grams of cocaine,
trafficking in cocaine is a felony of the third degree, and, except as otherwise provided
in this division, there is a presumption for a prison term for the offense. If trafficking in
cocaine is a felony of the third degree under this division and if the offender two or more
times previously has been convicted of or pleaded guilty to a felony drug abuse offense,
the court shall impose as a mandatory prison term one of the prison terms prescribed
for a felony of the third degree. If the amount of the drug involved is within that range
and if the offense was committed in the vicinity of a school or in the vicinity of a juvenile,
trafficking in cocaine is a felony of the second degree, and the court shall impose as a
mandatory prison term one of the prison terms prescribed for a felony of the second
degree.
{¶21} “(e) Except as otherwise provided in this division, if the amount of the drug
involved equals or exceeds twenty grams but is less than twenty-seven grams of
cocaine, trafficking in cocaine is a felony of the second degree, and the court shall
impose as a mandatory prison term one of the prison terms prescribed for a felony of
the second degree. If the amount of the drug involved is within that range and if the
offense was committed in the vicinity of a school or in the vicinity of a juvenile, trafficking
Licking County App. Case No. 11CA0125 6
in 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.
{¶22} “(f) If the amount of the drug involved equals or exceeds twenty-seven
grams but is less than one hundred grams of cocaine and regardless of whether the
offense was committed in the vicinity of a school or in the vicinity of a juvenile, trafficking
in 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.
{¶23} “(g) If the amount of the drug involved equals or exceeds one hundred
grams of cocaine and regardless of whether the offense was committed in the vicinity of
a school or in the vicinity of a juvenile, trafficking in cocaine is a felony of the first
degree, the offender is a major drug offender, and the court shall impose as a
mandatory prison term the maximum prison term prescribed for a felony of the first
degree.”
{¶24} The Chandler court noted that the General Assembly authorized a
hierarchy of criminal penalties for drug trafficking based on the identity and amount of
the drug involved. Id. at ¶18. By the terms of R.C. 2925.03(C)(4), the substance is to be
cocaine, or a compound, mixture, preparation or substance containing cocaine, which
presumes that a detectable amount of cocaine is present before the penalty
enhancement applies. Id. The jury found that 130.87 grams of baking soda equaled or
exceeded 100 grams of cocaine. The Supreme Court concluded that applying the
penalty enhancement in R.C. 2925.03(C)(4)(g) for a major drug offender to any
substance represented to be “crack cocaine” contradicts the statute. Id. at ¶19.
Licking County App. Case No. 11CA0125 7
{¶25} However, appellant was sentenced under the penalty enhancement found
in R.C. 2925.03(C)(4)(b), which does not include any specification of the weight or
amount of the controlled substance involved in the sale or offer to sell. It is not clear
from the majority opinion in Chandler whether a detectable amount of the controlled
substance must be present before a defendant may be sentenced under this particular
subsection. The dissenting opinion by Justice O’Connor begins,
{¶26} “I strongly disagree with the majority’s conclusion that R.C.
2925.03(C)(4)(c) through (g) requires that the substance offered actually be cocaine in
order to support a penalty enhancement beyond the default fifth-degree felony
contained in R.C. 2925.03(C)(4)(a).” Id. at ¶40.
{¶27} Thus, it appears that the dissenting justices believe the majority’s holding
only applies to the subsections which rely on the amount of the drug to enhance the
penalty.
{¶28} We conclude that the penalty enhancement in R.C. 2925.03(C)(4)(b) may
be applied even where no detectable amount of the substance is involved. As noted,
this enhancement is not based on the weight or amount of the drug sold or offered for
sale. This particular enhancement is based on the proximity of juveniles to the offense.
The danger to juveniles remains the same whether there is an actual sale of a
controlled substance or an offer to sell what the offender represents and believes to be
a controlled substance but ultimately is found to be counterfeit. Therefore, the court did
not err in failing to dismiss the penalty enhancement specification.
{¶29} The first assignment of error is overruled.
Licking County App. Case No. 11CA0125 8
II
{¶30} Appellant argues that the finding that he sold or offered to sell cocaine
within 100 feet of a juvenile is against the manifest weight and sufficiency of the
evidence.
{¶31} 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, 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,
1997-Ohio-52, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485
N.E.2d 717 (1983).
{¶32} An appellate court's function when reviewing the sufficiency of the
evidence is to determine 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, paragraph two of the syllabus (1991).
{¶33} Appellant first restates his argument from his first assignment of error that
he cannot be sentenced under the penalty enhancement because the substance was
baby powder, not cocaine. For the reasons stated in the first assignment of error, we
reject this argument.
{¶34} Appellant next argues that the state failed to prove that the juveniles in the
minivan were within 100 feet of the car where he conducted the sale.
Licking County App. Case No. 11CA0125 9
{¶35} Detective Thomas testified that the minivan with children inside was
parked next to him during the drug transaction. He testified that he later went back and
measured and the distance was 94 feet. This is sufficient evidence, if believed by the
jury, to support a finding that the offense took place within 100 feet of a juvenile.
Appellant argues that the officer admitted the distance was more than 100 feet, relying
on the following testimony on recross examination:
{¶36} “Q. Detective Thomas, didn’t you earlier say you couldn’t see the drug
deal taking place?
{¶37} “A. I couldn’t, no, not through my mirrors.
{¶38} “Q. So then if you couldn’t see the drug deal taking place, how could the
juveniles potentially see the drug deal taking place?”
{¶39} “A. Well, I don’t - - I can’t testify to what exactly they saw. I didn’t go up
there and stop the minivan, but I’m just saying, you know, from what I believe is the - - if
they could look out through the back window, which they were - - the kids were all over
the van, they would have a little bit better angle to see it than I would looking through
my mirrors.
{¶40} “Q. From 100 feet or so away, assuming those two are sitting down in the
front seat?
{¶41} “A. Oh, no, they were all in the backseats.” Tr. 92.
{¶42} The officer did not testify that the van was more than 100 feet away, he
simply failed to correct counsel’s description of the van as “100 feet or so” away. The
focus of the questioning at the time was not on how far away the juveniles were, but on
Licking County App. Case No. 11CA0125 10
what they could have seen from the vehicle. The jury did not lose its way in choosing to
believe the officer’s testimony that he measured and found the distance to be 94 feet.
{¶43} Finally, appellant argues there is no evidence to support the finding that
the substance appellant offered to sell was cocaine. This claim is patently without merit.
Detective Thomas testified that appellant admitted to bringing cocaine to the informant
and to offering to sell cocaine. The informant testified at trial that he has bought drugs
in the past, and normally the dealer does not use the word “cocaine” on the telephone,
but refers to the drug as “girl” or “soft.” Tr. 101. However, he testified that there was no
doubt in his mind that appellant was going to sell him cocaine.
{¶44} The second assignment of error is overruled.
III
{¶45} In his final assignment of error, appellant argues that his trial counsel was
ineffective. However, in his brief he states, “Although this assignment of error was listed
in Appellant Counsel’s original Docketing Statement, upon reviewing the record in its
entirety, appellate counsel found no real evidence that Mr. Cooper’s trial counsel
rendered ineffective assistance.” Brief of appellant, p. 20. Counsel then goes on to
identify three issues he considered when evaluating an ineffective assistance claim, but
states that appellant cannot demonstrate prejudice from any of these possible mistakes
by counsel, or they were sound trial strategy.
Licking County App. Case No. 11CA0125 11
{¶46} As it appears from appellant’s brief that he has in effect withdrawn this
assignment of error by conceding that counsel was not ineffective at trial, the third
assignment of error is overruled.
{¶47} The judgment of the Licking County Common Pleas Court is affirmed.
By: Edwards, J.
Delaney, P.J. and
Hoffman, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/0413
[Cite as State v. Cooper, 2012-Ohio-3058.]
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
SHERRON COOPER :
:
Defendant-Appellant : CASE NO. 11CA0125
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Licking County Court of Common Pleas is affirmed. Costs assessed to
appellant.
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_________________________________
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JUDGES