State v. Noriega , 2020 Ohio 4201 ( 2020 )

[Cite as State v. Noriega, 2020-Ohio-4201.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 18AP-979
v. : (C.P.C. No. 17CR-2887)
Carlos M. Noriega, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on August 25, 2020
On brief: Ron O'Brien, Prosecuting Attorney, and Michael P.
Walton, for appellee. Argued: Michael P. Walton.
On brief: Timothy Young, Ohio Public Defender, and
Victoria Bader, for appellant. Argued: Victoria Bader.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Defendant-appellant, Carlos M. Noriega, appeals from the judgment of
conviction and sentence entered by the Franklin County Court of Common Pleas pursuant
to jury verdicts finding him guilty of four counts of heroin possession and four counts of
heroin trafficking. For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} Noriega and a co-defendant, Michelle Lopez, were indicted on one count of
first-degree felony possession of heroin, three counts of second-degree felony possession of
heroin, one count of first-degree felony trafficking in heroin, and three counts of second-
degree felony trafficking in heroin. The charges arose from drug transactions that occurred
No. 18AP-979 2
on four separate days in May 2017.1 A jury trial was conducted on the charges in October
2018.
{¶ 3} Detective Mark Eagan ("Det. Eagan") of the Franklin County Sheriff's Office
testified a confidential informant ("informant") provided information about a drug
trafficking organization in April 2017. The informant had previously contacted a specific
telephone number ending in 9373 ("the 9373 phone") to arrange the purchase of heroin.
Det. Eagan had the informant contact the 9373 phone to arrange a purchase of one ounce
of heroin on May 4, 2017 ("the May 4th transaction"). Det. Eagan monitored while the
informant placed the call and arranged the transaction. The informant was told to meet at
a specified location in 45 minutes to complete the transaction. Det. Eagan, the informant,
and a surveillance team went to the specified location. After Det. Eagan and the informant
arrived at the specified location, a gold Nissan Maxima pulled up next to the informant's
vehicle. The informant then received a call from the 9373 phone directing the informant to
move to a different location. After driving to the second location, the gold Nissan Maxima
once again pulled up. Lopez exited the gold Nissan Maxima and got into the informant's
car. Det. Eagan gave Lopez $1,300 in exchange for a black ball wrapped in black electrical
tape. During the transaction, Det. Eagan asked whether the weight of the drugs was correct
and Lopez indicated that he did not speak English. A video recording of the May 4th
transaction was played for the jury. Subsequent laboratory testing by the Bureau of
Criminal Investigation ("BCI") indicated the item Det. Eagan received during the May 4th
transaction was 24.68 grams of a substance containing heroin.
{¶ 4} Later that same day, Det. Eagan placed a call to the 9373 phone to indicate
he wanted to buy more drugs in the future. Det. Eagan testified the person who answered
the 9373 phone spoke in broken English, but they were able to communicate. The
informant had previously suggested that the person who answered calls to the 9373 phone
might not be the same person who delivered the drugs, indicating that a younger Hispanic
male made the deliveries. After the May 4th transaction, Det. Eagan obtained a court order
directing the cellular phone carrier for the 9373 phone to provide "ping" data indicating the
physical location of the 9373 phone. The location data received from the cellular phone
1 Each count of the indictment was accompanied with a specification for forfeiture of money in a drug case
pursuant to R.C. 2941.1417. Noriega waived a jury trial on the forfeiture specifications and the parties entered
into an agreed entry providing for forfeiture of $23,130 in United States currency.
No. 18AP-979 3
carrier led Det. Eagan to concentrate his investigation around the area of Red Hill Court in
Worthington, Ohio.
{¶ 5} Det. Eagan subsequently contacted the 9373 phone by text and voice call to
arrange another drug purchase for May 9, 2017 ("the May 9th transaction"). Det. Eagan
testified that the person who answered the 9373 phone had the same voice as the person
who answered on May 4, 2017. A surveillance team was located near Red Hill Court at the
time Det. Eagan made contact. The user of the 9373 phone again provided a specific
location and directed Det. Eagan to be there in 45 minutes. Det. Eagan arrived at the
location first, then contacted the 9373 phone and asked where the delivery was. The gold
Nissan Maxima arrived shortly thereafter. Det. Eagan got into the Maxima, which was
driven by Lopez, and gave Lopez $1,200 in exchange for a black ball wrapped in black
electrical tape. A video recording of the May 9th transaction was played for the jury. In the
recording, before the delivery arrived, the individual on the 9373 phone could be heard
saying "[h]e was up front too, but he can't see you." (Tr. Vol. II at 69.) Subsequent
laboratory testing by BCI indicated the item Det. Eagan received during the May 9th
transaction was 24.70 grams of a substance containing heroin.
{¶ 6} After the May 9th transaction, Det. Eagan and other members of his unit
conducted surveillance of the Red Hill Court address where they believed the holder of the
9373 phone lived. On the evening of May 9, 2017, the ping data for the 9373 phone
indicated it was in a vehicle near the Red Hill Court address. Det. Eagan testified that
around 11:00 p.m., Noriega arrived at the Red Hill Court residence in a silver Mitsubishi
Galant, parked in front of the residence, and went inside. The gold Nissan Maxima driven
by Lopez to the May 4th and May 9th transactions was also parked near the Red Hill Court
address. Det. Eagan subsequently obtained warrants to place global positioning system
("GPS") tracking devices on both vehicles.
{¶ 7} The silver Mitsubishi Galant was stopped for a traffic violation by a member
of Det. Eagan's unit on May 16, 2017. Alfonzo Duran was driving the Galant and Noriega
was in the passenger seat. The ping data from the 9373 phone at the time of the traffic stop
indicated the phone was in the immediate area of the vehicle, but it was unclear whether
Duran or Noriega was in possession of it.
No. 18AP-979 4
{¶ 8} On May 17, 2017, Det. Eagan again contacted the 9373 phone and requested
one ounce of heroin ("the May 17th transaction"). The holder of the 9373 phone directed
Det. Eagan to meet in 45 minutes at the same location as the May 4th transaction. After
Det. Eagan arrived at that location, the gold Nissan Maxima arrived. Det. Eagan got into
the Maxima, which was driven by Lopez, and gave Lopez $1,200 for two small balls
wrapped in black tape. While Det. Eagan was in the Maxima, Lopez placed a call to another
person on speakerphone; Det. Eagan was able to hear that individual's voice and believed
it was the same as the person who answered the 9373 phone. A video of the May 17th
transaction was played for the jury. Subsequent laboratory testing by BCI indicated the
item Det. Eagan received during the May 17th transaction was 25.45 grams of a substance
containing heroin.
{¶ 9} Later in the day on May 17, 2017, Det. Eagan conducted surveillance on
Noriega in the silver Mitsubishi Galant in an attempt to observe him using the 9373 phone.
Det. Eagan and others followed Noriega to a shopping center. As Noriega exited a store,
Det. Eagan placed a call to the 9373 phone. Det. Eagan, who was in a parked car
approximately 15 yards away, observed Noriega answer a cell phone, and the two men had
a conversation. On cross-examination, Det. Eagan testified there were no photographs or
videos of Noriega answering the phone because the surveillance team was stuck in traffic at
the time and unable to reach the shopping center.
{¶ 10} On May 18, 2017, Det. Eagan contacted the 9373 phone and requested to
purchase 10 ounces of heroin ("the May 18th transaction"). Noriega was under surveillance
at the time inside a restaurant. Det. Eagan testified that during the conversation the
individual who answered the 9373 phone had a coughing fit. Detective Jacob Smith ("Det.
Smith") of the Franklin County Sheriff's Office, who was in the restaurant observing
Noriega, testified he saw Noriega speaking on a phone and coughing excessively at the time
Det. Eagan called the 9373 phone. A video of Noriega in the restaurant taken by Det. Smith
was played for the jury.
{¶ 11} During the phone call, the holder of the 9373 phone directed Det. Eagan to
meet at a specified location in 45 minutes. Det. Eagan arrived at the specified location and
then the gold Nissan Maxima arrived. Det. Eagan contacted the 9373 phone and the holder
of the phone directed him to follow the gold Nissan Maxima to a second location. After
No. 18AP-979 5
arriving at the second location, Det. Eagan got into the Maxima and asked about the drugs.
When Lopez held up two packages, Det. Eagan indicated he need to go back to his car to get
the money. Other members of the investigative team then moved in and arrested Lopez. At
the time of arrest, Lopez was in possession of a white Samsung cellular phone. Subsequent
laboratory testing by BCI indicated packages possessed by Lopez during the May 18th
transaction contained 247.20 grams of a substance containing heroin.
{¶ 12} During the May 18th transaction, both Noriega and Duran were in the area,
with Noriega driving the silver Mitsubishi Galant and Duran driving a red pickup truck.
When Lopez was arrested, Noriega and Duran fled the area. Noriega was subsequently
arrested as part of a traffic stop by a marked police cruiser. Duran returned to the Red Hill
Court residence and was arrested by officers serving a search warrant. No drugs were
discovered during the search of the Red Hill Court residence, but $20,000 was recovered
from an ottoman located in the living room.
{¶ 13} Prior to the May 4th, May 9th, and May 17th transactions, Det. Eagan
photographed the serial numbers on the buy money for tracking purposes. Some of the
bills given to Lopez during those transactions were recovered from the Red Hill Court
residence pursuant to a search warrant; other bills given to Lopez during the transactions
were in Noriega's possession when he was arrested. Noriega was also in possession of the
9373 phone at the time he was arrested. On cross-examination, Det. Eagan admitted he
never met with Noriega personally and never gave Noriega money or received drugs directly
from him.
{¶ 14} Det. Smith testified he reviewed records recovered from the phones
possessed by Noriega, Lopez, and Duran when they were arrested. He found contacts
between Noriega's phone and Det. Eagan's phone number, but no contacts with Det.
Eagan's phone number from Lopez or Duran's phones. Det. Smith also testified about
activity between Noriega, Lopez, and Duran's phones on the days when the drug
transactions occurred. Det. Smith testified that in his experience investigating drug
trafficking organizations, it was typical to have layers within the organization and that the
individual who delivered drugs to a sale location was not necessarily the person who
negotiated the price.
No. 18AP-979 6
{¶ 15} Lopez testified he had pled guilty to four counts of trafficking in heroin and
agreed to testify against Noriega, in exchange for a recommended prison sentence of seven
years. Lopez stated he came to Columbus, Ohio, in March 2017 to live with Noriega, who
was the cousin of a friend. Noriega helped Lopez obtain a landscaping job. . Lopez stopped
working in landscaping after about a month and began delivering drugs for Noriega. Lopez
testified Noriega asked him to take over performing drug deliveries and that a man named
Alex Hernandez showed him how to make the deliveries.
{¶ 16} Lopez testified Noriega paid for the residence at Red Hill Court and loaned
Lopez the gold Nissan Maxima he drove to complete deliveries. Lopez did not pay rent
while living at the Red Hill Court residence. Lopez further testified that Duran paid for the
cell phone he used. Lopez claimed Noriega was his roommate and friend, but denied
Noriega was his boss.
{¶ 17} Lopez testified the May 4th transaction was the first time he had delivered
drugs. Duran gave Lopez the heroin to be delivered for the May 4th transaction, and each
of the subsequent transactions with Det. Eagan. Lopez testified he was not aware of drugs
being kept at the Red Hill Court residence; instead, he would be told where to meet Duran
to pick up drugs to be delivered. Lopez could not remember whether Duran or Noriega
provided the location for the May 4th transaction, but testified Noriega provided the
location for the other three transactions. Lopez testified he would have to report to Noriega
before and after each delivery, and that he was on the phone with Noriega during each of
the four transactions with Det. Eagan. After the deliveries, Lopez would hand over the
purchase money to Noriega or Duran. Lopez testified Noriega twice paid him $500 for
making the deliveries.
{¶ 18} Lopez initially denied knowing anyone named Carlos when he was
interviewed after being arrested. On direct examination, Lopez admitted he had previously
been convicted of drug trafficking in Las Vegas, Nevada, when cocaine was found during a
traffic stop while he was driving a car borrowed from a friend. On cross-examination,
however, a copy of Lopez's criminal record was introduced, establishing that the drugs
found during the traffic stop were heroin, and that Lopez had additional prior convictions
for possession of a hypodermic needle and possession of marijuana.
No. 18AP-979 7
{¶ 19} The jury found Noriega guilty of the heroin possession and trafficking charges
as set forth in the indictment. A sentencing hearing was conducted on November 19, 2018.
The trial court found the possession and trafficking charges related to each transaction
merged for purposes of sentencing, and the State of Ohio, plaintiff-appellee, elected
sentencing on the four heroin trafficking counts. The trial court imposed a total sentence
of 26 years imprisonment. The court also imposed a mandatory fine of $20,000 as to the
first-degree felony heroin trafficking count. The court notified Noriega he would be subject
to 5 years mandatory post-release control upon release.
II. Assignments of Error
{¶ 20} Noriega appeals and assigns the following four assignments of error for our
review:
I. The trial court erred when it failed to conduct individual voir
dire to determine whether a juror's expressed safety concerns
affected her ability to fairly and impartially consider the case.
II. Carlos Noriega's convictions were against the manifest
weight of the evidence.
III. The trial court erred when it sentenced Carlos Noriega to
26 years in prison, because the sentence imposes an
unnecessary burden on state government resources.
IV. Carlos Noriega received ineffective assistance of counsel
when counsel failed to file an affidavit of indigency on Mr.
Noriega's behalf, or otherwise advocate against financial
sanctions.
III. Analysis
A. Juror bias
{¶ 21} Noriega argues in his first assignment of error the trial court erred by failing
to conduct an individual examination of a juror who expressed safety concerns during the
trial to determine whether the juror would be able to fairly and impartially consider the
case. Noriega claims that proceeding with trial without individually examining the juror
violated his right to a fair and impartial jury.
{¶ 22} The Sixth Amendment to the United States Constitution provides that in all
criminal prosecutions, the accused has the right to trial by an impartial jury. The Sixth
Amendment applies to the states under the Fourteenth Amendment to the United States
No. 18AP-979 8
Constitution. State v. D.H., 169 Ohio App. 3d 798, 2006-Ohio-6953, ¶ 49 (10th Dist.).
Article I, Section 10 of the Ohio Constitution similarly provides that a criminal defendant
is entitled to "a speedy public trial by an impartial jury of the county in which the offense is
alleged to have been committed." The right to be tried by a fair and impartial jury is a
fundamental element of our criminal justice system. See State v. Williams, 75 Ohio App. 3d
102, 109 (10th Dist.1991) ("The right to be tried by a fair and impartial jury of one's peers is
a fundamental right guaranteed a criminal defendant under the Sixth Amendment to the
United States Constitution.").
{¶ 23} In this case, on the first day of trial after Det. Eagan's direct testimony was
completed, one of the jurors advised a member of the court staff that she was apprehensive
about her personal safety because she lived in the neighborhood near Red Hill Court and
went to one of the commercial locations where some of the drug transactions occurred. The
juror asked whether Noriega was in custody and whether she was in jeopardy of
encountering someone affiliated with the case while in her neighborhood. Outside the
presence of the jury, the trial court asked counsel for feedback on how to respond to the
juror's concerns. Noriega's trial counsel responded: "Your Honor, I'm very opposed to any
mention of Mr. Noriega being in custody at this point. In fact, the reservations that are
discussed after the presentation of one witness causes me concern regarding her ability to
be fair and impartial in this particular matter." (Tr. Vol. II at 164.) The trial court and
counsel then engaged in an off-the-record discussion. When the matter resumed on the
record, Noriega's trial counsel stated: "Your Honor, I don't have any additional suggestions.
But I'm still concerned about her ability to be fair and impartial in hearing the full amount
of the case, given the comments that have been made." (Tr. Vol. II at 165.) After further
discussion, the trial court proposed giving a cautionary statement to the full jury and asked
whether that would be acceptable to Noriega:
The Court: What I propose to do is to tell all the jurors that
there has been an inquiry about personal safety. We get it
sometimes in serious trials. We have not had any incidents with
juror safety. They should feel free to call 911 if there is any issue
that they suspect. But otherwise, rely on the fact that in 14 years
that I've been a judge, we haven't had any incidents with jurors
in my courtroom, and, as far as I know, with the other 16
judges, there hasn't been anything but maybe one. I think some
No. 18AP-979 9
years ago Schneider might have had one. I won't identify Judge
Schneider. Is that satisfactory to the defense?
[Noriega's trial counsel]: Yes, Your Honor.
(Tr. Vol. II at 167.) After the jury returned to the courtroom, the trial judge made a
statement to the full jury consistent with the proposal discussed with counsel.
{¶ 24} Noriega argues on appeal that when a concern regarding juror bias or
impartiality arises, a trial court has a duty to conduct a hearing to determine whether the
juror can consider the evidence presented fairly and impartially. Noriega claims the trial
court erred in this case by failing to individually question the juror who expressed safety
concerns to determine whether she could be fair and impartial.
{¶ 25} "Fairness requires impartial, indifferent jurors." State v. Sheppard, 84 Ohio
St.3d 230, 235 (1998). Generally, a trial court has discretion in determining a juror's ability
to be impartial. Id., citing State v. Williams, 6 Ohio St. 3d 281, 288 (1983). See also State
v. Trimble, 122 Ohio St. 3d 297, 2009-Ohio-2961, ¶ 73 ("A trial court has broad discretion
in determining a juror's ability to be impartial."). Thus, we typically review a trial court's
decision regarding a juror's impartiality for abuse of discretion. An abuse of discretion
occurs where a decision is unreasonable, arbitrary, or unconscionable. Blakemore v.
Blakemore, 5 Ohio St. 3d 217, 219 (1983). However, the state asserts any error by the trial
court in this case was invited because Noriega's trial counsel agreed to the court's proposed
instruction to the full jury. "Under the 'invited error' doctrine,2 a party may not take
advantage of an error which he invited or induced." State v. Griffin, 10th Dist. No. 10AP-
902, 2011-Ohio-4250, ¶ 16. Alternatively, the state argues Noriega waived all but plain
error by failing to expressly request the juror be removed or object to continuing the trial
with the juror remaining on the panel. Plain error exists when an error is plain or obvious
2With respect to the state's "invited error" argument, the Supreme Court of Ohio has held that "invited error
must be more than mere 'acquiescence in the trial judge's erroneous conclusion.' " State v. Campbell, 90 Ohio
St.3d 320, 324 (2000), quoting Carrothers v. Hunter, 23 Ohio St. 2d 99, 103 (1970). The court stated invited
error occurs "when a party has asked the court to take some action later claimed to be erroneous, or
affirmatively consented to a procedure the trial judge proposed." (Emphasis added.) Campbell at 324. After
setting forth the proposed instruction to be given to the full jury, the trial judge directly asked Noriega's trial
counsel whether the instruction was acceptable to the defense. Noriega's trial counsel responded that the
proposed instruction was acceptable. Because Noriega's trial counsel affirmatively consented to the trial
court's proposed remedy, any error based on the trial court's cautionary instruction to the full jury would
constitute invited error.
No. 18AP-979 10
and affects a substantial right. Id. at ¶ 13. The error must constitute an obvious defect in
the legal proceedings and there must be a reasonable probability that the error affected the
outcome. State v. Barrie, 10th Dist. No. 15AP-848, 2016-Ohio-5640, ¶ 32.
{¶ 26} Although Noriega's brief on appeal refers to the trial court's instruction to the
full jury as prejudicial, his first assignment of error and argument in support focus on the
trial court's failure to individually examine the juror who expressed safety concerns. Based
on the record before us, we conclude the plain error standard applies to this assignment of
error. Noriega's trial counsel twice generally referred to being concerned about the juror's
impartiality, but never directly requested on the record that the trial court individually
question the juror to assess her ability to be fair and impartial. Likewise, Noriega's trial
counsel did not request the juror be replaced or object to continuing the trial with the juror
on the panel. By failing to request an individual examination of the juror or object to
continuation of the trial with the juror on the panel, Noriega has waived all but plain error.
{¶ 27} Other appellate courts considering similar claims have held that a juror's
expression of safety concerns by itself is not sufficient to demonstrate inability to be fair
and impartial. State v. White, 1st Dist. No. C-150250, 2016-Ohio-3329, ¶ 32; State v.
Carter, 7th Dist. No. 05 JE 7, 2007-Ohio-3502, ¶ 17; State v. Garcia, 8th Dist. No. 79917,
2002-Ohio-4179, ¶ 86. The defendant must establish that the juror's safety concerns
resulted in bias. Carter at ¶ 17; Garcia at ¶ 86.
{¶ 28} In White, following testimony from the defendant's mother, a juror advised
the court bailiff that the testimony caused him to be concerned for his safety. The trial judge
called the juror into chambers for questioning. The juror stated he believed the defendant's
mother lived on a particular street near his residence and that someone in the
neighborhood might recognize him as a member of the jury. The trial judge informed the
juror that the defendant's mother lived on a different street, and the attorneys noted that
the street the juror was concerned about might have been mentioned earlier in the day with
respect to GPS evidence or cell phone records. White at ¶ 22. After this clarification, the
trial judge asked the juror whether the information would affect his ability to be fair and
impartial. The juror indicated he was not sure whether he had all the facts straight and that
he still had some concerns about retribution, but also stated he was committed to doing his
duty. Id. at ¶ 24-26. Defense counsel requested the juror be excused. Id. at ¶ 27. The trial
No. 18AP-979 11
court ultimately denied defense counsel's motion to excuse the juror and subsequent
motion for mistrial. Id. at ¶ 30. On appeal, the First District stated "[a] juror's concern for
safety, standing alone, is not sufficient to demonstrate a juror's impairment and warrant a
new trial." Id. at ¶ 32. The court found the defendant failed to establish an abuse of
discretion in retaining the juror because, when questioned, the juror indicated he could
return a verdict based on the evidence he heard in the courtroom and would act honestly
toward all parties involved. Therefore, the trial court did not abuse its discretion by
concluding the juror could be fair and impartial. Id. at ¶ 36-37.
{¶ 29} Similarly, in Carter the defendant claimed he was prejudiced because one
juror discovered during trial he knew one of the defense witnesses and told the other jurors
he feared retaliation if they returned a guilty verdict. Carter at ¶ 10. The juror advised the
trial court during deliberations that he was uncomfortable with the possibility of a guilty
verdict because he knew one of the defense witnesses. Id. at ¶ 11. The trial judge then
questioned the juror, who expressed concerns about retaliation because he recognized
several people who were watching the trial. Despite these concerns, the juror indicated he
could set his fears aside and decide the case based on the evidence presented. Id. at ¶ 13.
After the trial court's questioning, the defendant's attorney objected, asserting the jury was
no longer competent to render a verdict. Id. The trial court denied the objection and the
jury proceeded to convict the defendant. On appeal, the Seventh District Court of Appeals
held the trial court did not abuse its discretion by denying the defendant's motion for
mistrial because the defendant failed to prove any member of the jury was biased due to the
juror's safety concerns. The court noted that the particular juror at issue told the trial judge
he could decide the case based on the facts presented at trial. Further, the court concluded:
"[the juror's] concerns, if they did influence him at all, would have made him more likely to
find Carter not guilty, rather than guilty." Id. at ¶ 18.
{¶ 30} Finally, in Garcia, the jury foreman advised the trial court during jury
deliberations that he was concerned for his safety because he worked in the area where the
crime occurred and was afraid the defendant's family knew him. Garcia at ¶ 86. The
foreman sent a note to the trial judge expressing his concerns and requesting he be removed
from the jury; the note was signed by three different jurors. A second note was also sent to
the trial judge requesting a change in the jury foreman. Id. at ¶ 87-89. The trial judge
No. 18AP-979 12
responded to the first note with written instructions to continue deliberations. Id. at ¶ 90.
In response to the second note, the trial judge advised the jury in writing it would not
interfere with decisions made during deliberations. Id. at ¶ 91. The jury then reached a
verdict before changing the foreman. Id. After the verdicts were rendered, the jurors were
polled individually in open court and each juror verbally indicated agreement to each
verdict. Id. at ¶ 92. On appeal, the defendant alleged the foreman's concerns affected the
other jurors and tainted the verdict. Id at ¶ 86. The Eighth District Court of Appeals found
there was "nothing to indicate that the foreman's or other jurors' concerns about safety
tainted their verdict." Id. at ¶ 93. The court further noted that "if the foreman's vote was
based on his personal concern for safety, then a vote of not guilty would be expected," but
the foreman instead voted to convict the defendant. Id.
{¶ 31} Unlike White and Carter, in the present case there was no individual
questioning of the juror who expressed concern for her safety. Similar to Garcia, however,
Noriega fails to demonstrate anything specific in the record to establish the juror's safety
concern arising from living in the neighborhood where the events were alleged to have
occurred caused her to be biased against him. As the courts in Carter and Garcia observed,
a juror concerned about retaliation would presumably be more likely to vote to acquit,
rather than to convict. In this case, all jurors voted to convict Noriega on all counts.
Noriega's trial counsel requested the jurors be polled after the verdicts were read, and each
juror individually confirmed his or her agreement to the verdicts on all eight counts against
Noriega. Thus, we cannot find there to be a reasonable probability that the trial court's
failure to individually examine the juror about her safety concerns affected the outcome of
the trial.
{¶ 32} In effect, Noriega argues for a per se rule requiring a trial court to conduct an
individual examination any time a juror expresses safety concerns. While it may be best
practice to individually examine a juror who expresses safety concerns during trial, we are
unaware of any precedent requiring a trial judge to do so in every instance and cannot
conclude the trial court plainly erred in failing to do so in this case.
{¶ 33} Accordingly, we overrule Noriega's first assignment of error.
No. 18AP-979 13
B. Weight of the evidence
{¶ 34} In his second assignment of error, Noriega claims his convictions were
against the manifest weight of the evidence. "Weight of the evidence concerns 'the
inclination of the greater amount of credible evidence, offered in a trial, to support one side
of the issue rather than the other. It indicates clearly to the jury that the party having the
burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds,
they shall find the greater amount of credible evidence sustains the issue which is to be
established before them. Weight is not a question of mathematics, but depends on its effect
in inducing belief." (Emphasis sic.) State v. Thompkins, 78 Ohio St. 3d 380, 387 (1997),
quoting Black's Law Dictionary 1594 (6th Ed.1990). "When a court of appeals reverses a
judgment of a trial court on the basis that the verdict is against the weight of the evidence,
the appellate court sits as a 'thirteenth juror' and disagrees with the factfinder's resolution
of the conflicting testimony." Thompkins at 387, citing Tibbs v. Florida, 457 U.S. 31, 42
(1982). The court "may not merely substitute its view for that of the trier of fact, but must
review the entire record, weigh the evidence and all reasonable inferences, consider the
credibility of witnesses and determine whether in resolving conflicts in the evidence, the
trier of fact 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. McCrary, 10th Dist. No.
10AP-881, 2011-Ohio-3161, ¶ 12, citing Thompkins at 387. In conducting our review of the
evidence, "we are guided by the presumption that the jury, or the trial court in a bench trial,
'is best able to view the witnesses and observe their demeanor, gestures and voice
inflections, and use these observations in weighing the credibility of the proffered
testimony.' " State v. Cattledge, 10th Dist. No. 10AP-105, 2010-Ohio-4953, ¶ 6, quoting
Seasons Coal Co. v. Cleveland, 10 Ohio St. 3d 77, 80 (1984). An appellate court should
reserve reversal of a conviction as being against the manifest weight of the evidence for only
the " 'exceptional case in which the evidence weighs heavily against the conviction.' "
Thompkins at 387, quoting State v. Martin, 20 Ohio App. 3d 172, 175 (1st Dist.1983).
{¶ 35} On appeal, Noriega argues the case against him was based on Det. Eagan's
uncorroborated speculation that Noriega was the individual who arranged the four drug
transactions via the 9373 phone. Noriega asserts there was no photographic or video
evidence of him participating in any of the transactions and no audio recordings of him
No. 18AP-979 14
participating in phone calls setting up the transactions. Det. Eagan conceded he never gave
money to or received drugs from Noriega. Noriega also asserts Lopez was not a credible
witness based on his prior criminal history and the fact that he was testifying pursuant to a
plea agreement that reduced his prison term.
{¶ 36} Noriega was convicted of four counts of trafficking in heroin, in violation of
R.C. 2925.03, which provides in relevant part that no person shall sell or offer to sell a
controlled substance or controlled substance analog. He was also convicted of four counts
of possession of heroin, in violation of R.C. 2925.11, which provides in relevant part that no
person shall knowingly obtain, possess, or use a controlled substance or controlled
substance analog. Under the principle of complicity, an individual may be found guilty of
an offense if he solicits, aids, abets, or conspires with another individual to commit an
offense and shares the criminal intent of the individual who commits the principal offense.
State v. Johnson, 93 Ohio St. 3d 240 (2001), syllabus.
{¶ 37} Noriega's arguments on appeal challenge the issue of identity, arguing the
weight of the evidence failed to establish he was the individual who arranged the drug
transactions using the 9373 phone. There was no direct evidence to establish that Noriega
was the individual who arranged the drug transactions with Det. Eagan on the 9373 phone,
however "[t]he identity of a perpetrator may be established by the use of direct or
circumstantial evidence." State v. Mickens, 10th Dist. No. 08AP-626, 2009-Ohio-1973,
¶ 18. "Circumstantial evidence is proof of certain facts and circumstances in a given case,
from which the jury may infer other, connected facts, which usually and reasonably follow
according to the common experience of mankind." State v. Brown, 10th Dist. No. 15AP-
935, 2016-Ohio-7944, ¶ 30. Circumstantial evidence can have the same probative value as
direct evidence and a conviction can be sustained based on circumstantial evidence alone.
State v. Franklin, 62 Ohio St. 3d 118, 124 (1991).
{¶ 38} Det. Eagan testified he believed he spoke to the same individual each time he
contacted the 9373 phone. In the video recording of the May 9th transaction, the individual
on the 9373 phone could be heard saying "[h]e was up front too, but he can't see you," when
referring to the delivery driver, suggesting the individual speaking on the 9373 phone was
not the delivery driver. Location data from the 9373 phone indicated it was in the area of
the Red Hill Court residence around the same time Noriega arrived at the residence on
No. 18AP-979 15
May 9, 2017. Location data from the 9373 phone also indicated it was located in the silver
Mitsubishi Galant on May 16, 2017 when Noriega and Duran were in that vehicle during a
traffic stop. Det. Eagan testified he observed Noriega answer a cell phone and had a
conversation with Noriega after calling the 9373 phone on May 17, 2017. Similarly, on
May 18, 2017, Det. Smith observed Noriega answer a cell phone in a restaurant at the same
time Det. Eagan placed a call to the 9373 phone. Det. Smith testified Noriega had a
coughing fit while talking on the cell phone, and Det. Eagan testified the individual he spoke
with on the 9373 phone coughed excessively during the conversation. Finally, Noriega was
in possession of the 9373 phone when he was arrested.
{¶ 39} Forensic examination of the 9373 phone established there were contacts with
Det. Eagan's cell phone, as well as extensive contacts between the 9373 phone and Lopez's
cell phone. Lopez testified Noriega provided the location to make drug deliveries and paid
him for making deliveries. Lopez also testified he was in contact with Noriega during the
transactions; this was consistent with Det. Eagan's testimony that he heard Lopez call
someone during the May 17th transaction and believed it was the same person he had
spoken with on the 9373 phone. With respect to Noriega's argument that Lopez was not a
credible witness, the jury was aware of Lopez's plea agreement and prior drug-related
criminal history and, therefore, was in the best position to weigh those facts in determining
Lopez's credibility. State v. Jackson, 10th Dist. No. 14AP-748, 2015-Ohio-5114, ¶ 24.
{¶ 40} Based on our review of the record, weighing the evidence and reasonable
inferences arising from that evidence and considering the credibility of the witnesses, we
cannot find the jury clearly lost its way and created a manifest miscarriage of justice in
convicting Noriega. This is not an exceptional case where the evidence weighs heavily
against conviction. Therefore, we conclude the manifest weight of the evidence supported
the jury's verdicts.
{¶ 41} Accordingly, we overrule Noriega's second assignment of error.
C. Excessive sentence
{¶ 42} Noriega argues in his third assignment of error the trial court erred by
imposing a 26-year prison sentence. Noriega claims he will be subject to deportation when
he is released from prison and, therefore, the sentence imposed by the trial court exceeded
No. 18AP-979 16
the minimum necessary to punish him without imposing an undue burden on government
resources.
{¶ 43} "An appellate court will not reverse a trial court's sentencing decision unless
the evidence is clear and convincing that either the record does not support the sentence or
that the sentence is contrary to law." State v. Robinson, 10th Dist. No. 15AP-910, 2016-
Ohio-4638, ¶ 7. In making this determination, "we look to the record to determine whether
the sentencing court considered and properly applied the statutory guidelines and whether
the sentence is otherwise contrary to law." State v. Reeves, 10th Dist. No. 14AP-856, 2015-
Ohio-3251, ¶ 4. "[A] sentence is not clearly and convincingly contrary to law when a trial
court considers the principles and purposes of sentencing contained in R.C. 2929.11 and
the factors listed in R.C. 2929.12, properly imposes postrelease control, and sentences the
defendant within the permissible statutory range." State v. Haddad, 10th Dist. No. 16AP-
459, 2017-Ohio-1290, ¶ 19.
{¶ 44} The purposes of felony sentencing under Ohio law are "to protect the public
from future crime by the offender and others, to punish the offender, and to promote the
effective rehabilitation of the offender using the minimum sanctions that the court
determines accomplish those purposes without imposing an unnecessary burden on state
or local government resources." R.C. 2929.11(A). The trial court "shall consider the need
for incapacitating the offender, deterring the offender and others from future crime,
rehabilitating the offender, and making restitution to the victim of the offense, the public,
or both" in determining how to achieve the purposes of felony sentencing. R.C. 2929.11(A).
The court has discretion to select the most effective way to comply with the purposes and
principles of sentencing, but in exercising that discretion it must consider the factors set
forth in R.C. 2929.12 and may consider any other relevant factors. R.C. 2929.12(A).
{¶ 45} At the sentencing hearing, Noriega's trial counsel asserted Noriega faced
deportation once his sentence was completed. He also acknowledged Noriega had
previously been deported twice and had illegally entered the United States a third time prior
to committing the offenses for which he was being sentenced. Citing a per-day
incarceration cost of $67.31, which he asserted was based on a news article, Noriega's trial
counsel claimed imposing the minimum sentence of 11 years would cost the state more than
$270,000, while a 20-year sentence would cost nearly $500,000. Based on this and other
No. 18AP-979 17
factors, Noriega's trial counsel requested the court impose the minimum sentence. In
response, the prosecutor argued that even if deported at the end of his sentence, Noriega
was likely to come back to the United States and engage in drug trafficking again because
he had committed similar offenses prior to his earlier deportation. When the trial court
imposed a total sentence of 26 years imprisonment, the judge acknowledged there would
be substantial costs involved in incarcerating Noriega for that length of time but indicated
those costs were appropriate given the court's evaluation of the other sentencing factors.
{¶ 46} While acknowledging that resource conservation is a sentencing
consideration, this court has held it must be balanced against the need to protect the public
and stated that "[a] sentencing court is not required to elevate consideration of resource
burdens over the seriousness and recidivism factors of R.C. 2929.12." State v. Wilburn,
10th Dist. No. 17AP-602, 2018-Ohio-1917, ¶ 16. When presented with a similar argument
that a long prison term was not necessary to protect the public because the defendant would
likely be deported after serving his prison term, the Eleventh District Court of Appeals
noted "[the defendant] cites no case law for the proposition that a trial court should weigh
the fact that there is a possibility that an offender will be deported after serving a prison
term, thus limiting the possibility that the individual will commit future offenses in the
United States." (Emphasis sic.) State v. Musa, 11th Dist. No. 2009-L-023, 2010-Ohio-318,
¶ 16. Similarly, in the context of challenges to the imposition of consecutive sentences,
other courts have concluded a trial court need not consider whether a defendant may be
subject to deportation after serving a prison term. State v. Bautista, 2d Dist. No. 2015-CA-
74, 2016-Ohio-5436, ¶ 12 ("Based on the record before us, the trial court certainly could
have concluded that consecutive sentences were necessary to protect the public from future
crime or to punish Bautista and that consecutive sentences were not disproportionate to
the seriousness of his conduct and to the danger he poses to the public. We are
unpersuaded that Bautista does not pose a danger to the public because he is likely to be
deported upon his release from prison."); State v. Balbi, 8th Dist. No. 102321, 2015-Ohio-
4075, ¶ 10 ("Balbi next argues that consecutive sentences were unnecessary to protect the
public because he will be deported after serving his prison sentence. Assuming the certainty
of Balbi's deportation, it is not a valid reason to find that it supersedes the state's interest
No. 18AP-979 18
in punishing him and that he will not resume his activity elsewhere. Apart from the self-
serving nature of the argument, any deterrence factor in his punishment would be lost.").
{¶ 47} The trial court in this case discussed its reasons for imposing a substantial
prison sentence on Noriega at the sentencing hearing. The transcript of the sentencing
hearing and the judgment entry imposing sentence reflect the trial court considered the
purposes of sentencing under R.C. 2929.11 and the statutory factors under R.C. 2929.12.
The trial court also made the findings required under R.C. 2929.14(C)(4) to impose
consecutive sentences. Therefore, Noriega has failed to establish that the sentence was
clearly and convincingly contrary to law.
{¶ 48} Accordingly, we overrule Noriega's third assignment of error.
D. Ineffective assistance of counsel
{¶ 49} Noriega argues in his fourth assignment of error that his trial counsel
provided ineffective assistance by failing to file an affidavit of indigency or otherwise
advocate on his behalf against the imposition of financial sanctions.
{¶ 50} Noriega was sentenced for one first-degree felony heroin trafficking
conviction and three second-degree felony heroin trafficking convictions, all in violation of
R.C. 2925.03. Ohio law imposes a mandatory fine for first, second, or third-degree felony
violations of any provision of R.C. Chapter 2925. R.C. 2929.18(B). The fine may be up to
$20,000 for a first-degree felony and up to $15,000 for a second-degree felony. R.C.
2929.18(A)(3)(a) and (b). "If an offender alleges in an affidavit filed with the court prior to
sentencing that the offender is indigent and unable to pay the mandatory fine and if the
court determines the offender is an indigent person and is unable to pay the mandatory fine
* * * the court shall not impose the mandatory fine upon the offender." R.C. 2929.18(B)(1).
Additionally, "[b]efore imposing a financial sanction under section 2929.18 of the Revised
Code * * *, the court shall consider the offender's present and future ability to pay the
amount of the sanction or fine." R.C. 2929.19(B)(5). An offender bears the burden of
affirmatively demonstrating he is unable to pay a mandatory fine. State v. Loving, 180
Ohio App. 3d 424, 2009-Ohio-15, ¶ 8 (10th Dist.), citing State v. Gipson, 80 Ohio St. 3d 626,
634 (1998).
{¶ 51} We apply a two-part test to evaluate claims of ineffective assistance of
counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Bradley, 42 Ohio
No. 18AP-979 19
St.3d 136, 141-42 (1989). "First, the defendant must show that counsel's performance was
deficient. * * * Second, the defendant must show that the deficient performance prejudiced
the defense." Strickland at 687. This court has previously held that "[t]he failure to file an
affidavit of indigency prior to sentencing may constitute ineffective assistance of counsel in
a case where the record establishes a reasonable probability that the trial court would have
found the defendant indigent, thereby relieving him of the obligation to pay a mandatory
fine." State v. Parsley, 10th Dist. No. 09AP-612, 2010-Ohio-1689, ¶ 65.
{¶ 52} Noriega claims his trial counsel performed deficiently by failing to file an
affidavit of indigency prior to the sentencing hearing. He alleges he has no present or future
ability to pay the mandatory fine imposed by the court. Noriega asserts he will be 64 years
old at the end of his sentence and will likely be deported to Mexico. He claims he worked
in landscaping prior to incarceration, but alleges he has suffered an ankle injury that may
limit his future mobility. Noriega argues his inability to pay the mandatory fine is also
reflected in the affidavit of indigency filed for purposes of retaining appointed counsel.
{¶ 53} This court recently rejected a similar argument asserted by a defendant who
was subjected to a mandatory fine pursuant to a heroin trafficking conviction. State v.
Delgadillo-Banuelos, 10th Dist. No. 18AP-729, 2019-Ohio-4174, ¶ 25-40. In that case, as
in the present appeal, the defendant filed an affidavit of indigency for purposes of obtaining
appointed counsel but his counsel did not file a separate affidavit prior to sentencing
indicating he was unable to pay the mandatory fine. Delgadillo-Banuelos at ¶ 27. We noted
that an offender's indigency for purposes of receiving appointed counsel was separate and
distinct from indigency for purposes of avoiding a mandatory fine and held that an offender
may not rely on an affidavit of indigency for purposes of receiving appointed counsel for
the purpose of avoiding payment of a mandatory fine. Id. The defendant in Delgadillo-
Banuelos had entered the country illegally from Mexico and engaged in the drug trade. He
was 38 years old at the time of the offenses and described his physical health as excellent.
He had previous employment experience with auto parts and customer service. He claimed
he had no assets and owed money on his water bill, an outstanding bank loan, and his house
in Mexico. In addition to the money made in the drug trade, the defendant also received
money from his wife, who worked in Mexico. Id. at ¶ 30-32. At the sentencing hearing, the
trial court stated it had considered the defendant's present and future ability to pay a fine
No. 18AP-979 20
and financial sanction. The trial court imposed the full potential fine, "in the event that
[Delgadillo-Banuelos] has any assets that show up." Id. at ¶ 35. On appeal, this court
rejected the defendant's claim that his trial counsel performed deficiently by failing to file
an affidavit of indigency, holding that because there was evidence the trial court considered
his present and future ability to pay mandatory fines and made no determination he was
unable to pay those fines, there was no reasonable probability the trial court would have
found him to be indigent and relieved the obligation to pay the fines if his trial counsel had
filed an affidavit of indigency. Id. at ¶ 40.
{¶ 54} Although Noriega's trial counsel did not file an affidavit of indigency prior to
sentencing, at the sentencing hearing he requested the trial court waive fines and court
costs due to indigency. In a statement to the court, Noriega claimed he was previously jailed
in Mexico because he was unable to pay child support and had come to the United States to
earn money. However, during trial Lopez testified Noriega paid for the Red Hill Court
residence and provided the car Lopez used when making drug deliveries. Because of his
four convictions, Noriega was facing a maximum possible fine of $65,000, but the trial
court only imposed a fine on the first-degree felony conviction, rather than on all eligible
charges. The trial court indicated it felt that only imposing the fine on one conviction was
sufficient. In discussing the sentence imposed, the trial court noted the large amount of
money recovered from the Red Hill Court residence. When Noriega's trial counsel asked
the court to defer imposition of the fine until after his sentence was completed, the court
declined, noting that if Noriega had funds to contact his mother in Mexico, he would have
funds to pay toward the mandatory fine. The trial court stated "it may be nothing much,
but he can start paying back some of the mandatory fine." (Tr. Vol. VI at 18.) The sentencing
entry also indicated the court considered Noriega's present and future ability to pay a fine
and financial sanction. Thus, in this case, as in Delgadillo-Banuelos, the record contains
evidence demonstrating the trial court considered Noriega's present and future ability to
pay a mandatory fine and made no determination he was unable to pay the fine. Therefore,
Noriega fails to demonstrate his trial counsel was ineffective for failing to file an affidavit of
indigency seeking to avoid imposition of the mandatory fine, because there is not a
reasonable probability the trial court would have found him indigent and declined to
impose the fine if such an affidavit had been filed. See Delgadillo-Banuelos at ¶ 40.
No. 18AP-979 21
{¶ 55} Accordingly, we overrule Noriega's fourth assignment of error.
IV. Conclusion
{¶ 56} For the foregoing reasons, we overrule Noriega's four assignments of error
and affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
LUPER SCHUSTER and NELSON, JJ., concur.