State v. Smith , 2012 Ohio 4436 ( 2012 )

[Cite as State v. Smith, 2012-Ohio-4436.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 26159
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
SYMPHONE S. SMITH COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 10 08 2231(B)
DECISION AND JOURNAL ENTRY
Dated: September 26, 2012
CARR, Presiding Judge.
{¶1} Appellant, Symphone Smith, appeals the judgment of the Summit County Court
of Common Pleas. This Court affirms in part and reverses in part.
I.
{¶2} Akron police received information suggesting that drug activity was occurring at
the house where Smith lived and where her boyfriend, Darren Tomlinson, frequently stayed.
Acting on that information, the police established surveillance at the residence, then followed a
red Toyota that pulled out of the driveway. Police stopped the car for a traffic violation and
arrested Smith for an outstanding warrant. During the course of Smith’s transport following
arrest, the transporting officer noticed what appeared to be a baggie of crack cocaine shoved
under the divider that separated Smith from other passengers. Upon further inspection, police
officers found 6.6 grams of crack cocaine in the vehicle.
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{¶3} Meanwhile, police officers continued their surveillance of Smith’s residence.
They watched as Tomlinson carried several large items to the garbage then left on foot with
another man. When the officers searched the garbage, they found a cache of weapons, baggies
of cash, a digital scale, 130 grams of powder cocaine, and 11 grams of crack cocaine. They took
Tomlinson into custody and executed a search warrant at the residence, which led to the
discovery of $14,730 cash in a skylight, a butter knife with crack cocaine residue, and a baggie
of crack cocaine in the pocket of a coat.
{¶4} Smith was charged with (1) two counts of possession of crack cocaine in violation
of R.C. 2925.11(A)/(C)(4), one of which was accompanied by a forfeiture specification related to
$473 cash, (2) tampering with evidence in violation of R.C. 2921.12(A)(1), (3) possession of
cocaine in violation of R.C. 2925.11(A)/(C)(4), (4) trafficking in crack cocaine in violation of
R.C. 2925.03(A)/(C)(4), (5) trafficking in cocaine in violation of R.C. 2925.03(A)/(C)(4), and (6)
possessing criminal tools in violation of R.C. 2923.24. The remaining possession and trafficking
counts and the charge of possessing criminal tools were accompanied by a forfeiture
specification related to $15,410.00 cash and three televisions. A jury found Smith guilty of all of
the charges except trafficking in cocaine and found that all of the property at issue was subject to
forfeiture. The trial court sentenced her to a total of five years in prison, waived applicable fines
because of her indigence, and ordered all of the property at issue forfeited. Smith appealed.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR
WHEN IT DENIED SMITH A MEANINGFUL RIGHT TO CONFRONT AND
CROSS-EXAMINE THE STATE’S WITNESSES.
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{¶5} Smith’s first assignment of error is that the trial court erred by not permitting
recross-examination of two of the state’s witnesses, Sergeant Jerry Forney and Officer Patricia
Thorn. We disagree.
{¶6} The right to cross-examine witnesses is guaranteed to a defendant, but recross-
examination is only required when the State inquires into new matters on redirect. State v.
Faulkner, 56 Ohio St.2d 42, 46 (1978). “While the abuse of discretion standard necessarily
suggests that there can be no hard and fast rules on what constitutes new material for purposes of
recross-examination, * * * the [trial] court should seek to limit recross-examination to testimony
on redirect examination which raises a new subject-matter that is both material and non-
redundant in context.” State v. Hartley, 8th Dist. No. 81706, 2003-Ohio-3946, ¶ 20. Even under
those circumstances, however, recross-examination is subject to the considerations set forth in
Evid.R. 611. State v. Smith, 10th Dist. No. 06AP-1165, 2007-Ohio-6772, ¶ 21. Thus, with
respect to recross-examination, a trial court exercises “reasonable control over the mode and
order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and
presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time,
and (3) protect witnesses from harassment or undue embarrassment.” Evid.R. 611(A). A trial
court need not permit recross-examination on irrelevant matters, and the scope of recross-
examination is subject to the considerations contained in Evid.R. 403. See Evid.R. 611(B); State
v. Harmon, 9th Dist. No. 24495, 2009-Ohio-4512, ¶ 11.
{¶7} In this case, the State’s redirect examinations of Sergeant Forney and Officer
Thorn did not raise new matters, and recross-examination was not appropriate. With respect to
Sergeant Forney, Smith points to his testimony on redirect examination explaining why Smith
had not been mentioned in the affidavit used to obtain the search warrant and his statements
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clarifying that he did not create a minute-by-minute timeline of the investigation. Both
statements were related to Sergeant Forney’s earlier testimony and represent questions that could
have been raised on cross-examination. See generally Hartley at ¶ 20.
{¶8} Sergeant Forney testified on direct examination that he conducted the initial
surveillance of the house and requested a unit in a marked car to follow the red Toyota when it
pulled out of the driveway. He testified that he did not participate in the traffic stop during
which Smith was arrested but, instead, began preparing the affidavit necessary to obtain a search
warrant while maintaining contact with the officers at the scene. When Smith’s attorney cross-
examined Sergeant Forney, he reiterated the sequence of his participation in the events and
explained the process of obtaining a search warrant. Smith’s attorney asked Sergeant Forney
specifically whether police had information connecting Smith to the activity at issue before the
search warrant was executed. Sergeant Forney replied that he did not. On redirect examination,
the following exchange took place:
Q: Is it unusual in your 18 years in executing search warrants that you don’t
always know who all’s involved when you’re preparing that?
A: That is true.
Q: Okay. Do you execute search warrants and you find people in the house
that you had no suspicion of before?
A: Yes, we do.
Smith’s attorney could have cross-examined Sergeant Forney regarding what information he had
about other individuals before the search warrant was executed just as he questioned Sergeant
Forney about Smith’s involvement. “[T]he [trial] court’s interest in expeditiously moving the
trial must take precedence over counsel’s desire to have one last crack at a witness. And this
includes the desire to follow-up with a question that counsel could have asked on cross-
examination.” Hartley, 2003-Ohio-3946, at ¶ 21.
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{¶9} The same holds true with respect to testimony about the sequence of events that
led up to obtaining the search warrant. The attorney representing Tomlinson, who was Smith’s
codefendant at trial, asked Sergeant Forney during cross-examination whether he provided a
timeline of the investigation to support the search warrant affidavit. Sergeant Forney agreed that
he provided a “sequence of events,” but also explained that his testimony was based on
approximate times and that not every radio communication between the officers bore a recorded
time. On redirect examination, Sergeant Forney reiterated that the sequence of events was
approximate and that he did not generate a “minute by minute” timeline of the investigation.
The questions that were asked of Sergeant Forney on redirect provided further explanation of the
matter into which the attorneys inquired on cross-examination, not an inquiry into new matters.
{¶10} With respect to Officer Thorn’s testimony, we reach a similar conclusion. During
her direct examination, Officer Thorn described the configuration of the prison transport wagon
that she drives and explained the series of events that led to her discovery of crack cocaine under
the divider near Smith’s seating compartment. She testified that she always checks the vehicle
for contraband at the beginning of her shift and before picking up a new passenger. On cross-
examination, Smith’s attorney asked additional questions about the layout and dimensions of the
compartment, the ability of a handcuffed passenger to move freely, the location of the driver
relative to a passenger in Smith’s compartment, and her discovery of the crack cocaine. The
prosecuting attorney then asked two specific questions along the same lines, addressed to the
implications that Thorn may have missed discovering the contraband before she picked up Smith
and that she was physically too far away to have noticed what happened in Smith’s compartment.
Although it is true that Smith’s attorney did not ask Officer Thorn any questions about the
lighting in the vehicle or Thorn’s ability to hear what went on in the passenger compartment, the
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prosecuting attorney’s questions flowed reasonably from the cross-examination and did not
introduce new matters. The trial court did not err by denying Smith’s request for recross-
examination.
{¶11} Smith’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ADMITTING
HEARSAY EVIDENCE AT TRIAL.
{¶12} Smith’s second assignment of error is that the trial court erred by permitting
Sergeant Forney to identify her as the driver of the red Toyota at the time of her arrest because
he did not have personal knowledge of her identity. We disagree.
{¶13} Evid.R. 801(C) defines “hearsay” as “a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.” As a general rule, hearsay is not admissible. Evid.R. 802. The hearsay rule
does not apply, however, when an out-of-court statement is offered for a purpose other than the
truth of the matter of asserted. State v. Lewis, 22 Ohio St.2d 125, 132 (1970). One such
situation is when an out-of-court statement is introduced to explain the subsequent actions taken
by witnesses, including the subsequent investigative activity of law enforcement officers. State
v. Thomas, 61 Ohio St.2d 223, 232 (1980).
{¶14} Sergeant Forney testified that although he was not present for the traffic stop that
lead to Smith’s arrest, he learned that Smith was the driver of the car. This statement was not
offered to establish that Smith was the driver of the car, but to explain the next steps that officers
took in the surveillance of Smith’s residence, including determining how many people might still
be inside the house and securing the location while they obtained a search warrant. Because
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Sergeant Forney’s identification of Smith was not offered for its truth, the hearsay rule does not
apply. Smith’s second assignment of error is overruled.
ASSIGNMENT OF ERROR III
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR BY
FAILING TO MERGE THE TRAFFICKING AND POSSESSION OF CRACK
COCAINE OFFENSES FOR SENTENCING PURPOSES.
{¶15} Smith’s third assignment of error is that the trial court erred by imposing multiple
sentences for allied offenses of similar import.
{¶16} In State v. Johnson, 128 Ohio St.3d 153, 2010–Ohio–6314, the Ohio Supreme
Court held that “[w]hen determining whether two offenses are allied offenses of similar import
subject to merger under R.C. 2941.25, the conduct of the accused must be considered.” Id. at
syllabus. Since then, this Court has consistently remanded cases for further proceedings in the
trial court to apply Johnson for the first time. See e.g. State v. Cleland, 9th Dist. No. 09CA0070-
M, 2011-Ohio-6786, ¶ 36-37. The State has conceded that it is appropriate for this Court to
remand this case to the trial court to apply Johnson, and we agree. Smith’s third assignment of
error is sustained.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN
ORDERING THAT THREE TELEVISIONS BE FORFEITED TO THE AKRON
POLICE DEPARTMENT BECAUSE IT DID NOT DO SO IN OPEN COURT.
ASSIGNMENT OF ERROR V
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN
ORDERING THAT THREE TELEVISIONS BE FORFEITED TO THE AKRON
POLICE DEPARTMENT BECAUSE IT IS NOT A PROPER PARTY TO
RECEIVE FORFEITED PROCEEDS.
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{¶17} Smith’s fourth and fifth assignments of error challenge the trial court’s forfeiture
of the three televisions seized at her house on procedural grounds. Smith does not have standing
to raise these assignments of error.
{¶18} As an initial matter, Smith’s fourth assignment of error is not supported by the
record. Even assuming that her argument that forfeiture must occur in open court is correct, the
transcript indicates that the trial court did so. Both her fourth and fifth assignments of error,
however, fail for a more basic reason. Smith has not challenged the jury’s finding that the
televisions were subject to forfeiture. Instead, she argues that the trial court erred by forfeiting
them to the ultimate recipient of the proceeds under R.C. 2981.13 rather than to the general fund
of Summit County for distribution under R.C. 2981.12. In order to have standing to allege error,
however, a party must assert its own rights rather than the rights of a third party. Utility Serv.
Partners, Inc. v. Pub. Util. Comm., 124 Ohio St.3d 284, 2009-Ohio-6764, ¶ 49. If there was any
error in this respect, it is not error that aggrieved Smith, and she does not have standing to raise
error on behalf of Summit County or the prosecuting attorney.
{¶19} Smith’s fourth and fifth assignments of error are overruled.
ASSIGNMENT OF ERROR VI
SMITH WAS DENIED HER CONSTITUTIONAL RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL AT TRIAL WHEN HER TRIAL COUNSEL
FAILED TO ARGUE THAT THE TRIAL COURT’S ORDER THAT THREE
TELEVISIONS BE FORFEITED TO THE AKRON POLICE DEPARTMENT
WAS INVALID.
{¶20} Smith’s sixth assignment of error is that trial counsel was ineffective by failing to
object to the language that the trial court used to explain the distribution of forfeiture proceeds.
We disagree.
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{¶21} In order to demonstrate ineffective assistance of counsel, a defendant most show
(1) deficiency in the performance of counsel “so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment,” and (2) that the errors made by
counsel were “so serious as to deprive the defendant of a fair trial[.]” Strickland v. Washington,
466 U.S. 668, 687 (1984). A defendant must demonstrate prejudice by showing that, but for
counsel’s errors, there is a reasonable possibility that the outcome of the trial would have been
different. Id. at 694.
{¶22} Assuming that Smith’s attorney erred by failing to object, it had no effect on the
outcome of the proceedings with respect to Smith. The televisions were forfeited, regardless of
whether the trial court stated that they were forfeited to the law enforcement agencies at issue or
to the county general fund. Smith’s sixth assignment of error is overruled.
ASSIGNMENT OF ERROR VII
THE CUMULATIVE EFFECT OF THE TRIAL COURT’S ERRORS DENIED
SMITH A FAIR TRIAL.
{¶23} Under the cumulative error doctrine, a conviction may be reversed when the
cumulative effect of the errors deprives a defendant of the constitutional right to a fair trial even
though none of the errors, in isolation, was prejudicial. State v. DeMarco, 31 Ohio St.3d 191(1987), paragraph two of the syllabus. In the absence of multiple errors, the cumulative error
doctrine does not apply. State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 132.
{¶24} In this case, Smith has not identified errors in the trial court proceedings, so it
cannot be said that cumulative errors deprived her of a fair trial. See State v. Taylor, 9th Dist.
No. 09CA009570, 2010-Ohio-962, ¶ 40. Smith’s seventh assignment of error is overruled.
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III.
{¶25} Smith’s first, second, fourth, fifth, sixth, and seventh assignments of error are
overruled. Her third assignment of error is sustained. The judgment of the Summit County
Court of Common Pleas is affirmed in part and reversed in part, and this matter is remanded to
the trial court for further proceedings consistent with our resolution of Smith’s third assignment
of error.
Judgment affirmed in part,
reversed in part,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed equally to both parties.
DONNA J. CARR
FOR THE COURT
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DICKINSON, J.
BELFANCE, J.
CONCUR.
APPEARANCES:
NEIL P. AGARWAL, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.