State v. McCorkle , 2021 Ohio 2604 ( 2021 )

[Cite as State v. McCorkle, 2021-Ohio-2604.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2020-CA-36
:
v. : Trial Court Case No. 2018-CR-982
:
ERIQ R. MCCORKLE : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 30th day of July, 2021.
...........
MARCY A. VONDERWELL, Atty. Reg. No. 0078311, Assistant Prosecuting Attorney,
Greene County Prosecutor’s Office, Appellate Division, 61 Greene Street, Suite 200,
Xenia, Ohio 45385
Attorney for Plaintiff-Appellee
CHRISTOPHER C. GREEN, Atty. Reg. No. 0077072, 130 West Second Street, Suite
830, Dayton, Ohio 45402
Attorney for Defendant-Appellant
.............
HALL, J.
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{¶ 1} Eriq R. McCorkle appeals from his convictions in the Greene County Court
of Common Pleas for weapon offenses, possession of cocaine, and trafficking in cocaine.
In addition to the convictions, over $35,000 in cash that was found in his home was found
to be subject to forfeiture as proceeds of drug trafficking. McCorkle argues that the weight
of the evidence did not support this finding. We disagree. He also argues that his right to
a speedy trial was violated, but we conclude that almost all the time was tolled and there
were good reasons for the delay in bringing him to trial. We affirm the trial court’s
judgment.
I. Factual and Procedural Background
{¶ 2} McCorkle was arrested on December 6, 2018, and soon after he was indicted
on three counts of trafficking in cocaine, three counts of possession of cocaine, one count
of carrying a concealed weapon, and one count of improper handling of a firearm in a
motor vehicle. The indictment also included firearm specifications and 15 forfeiture
specifications, including one for $310 in cash and one for $36,7501 in cash. McCorkle
later waived the speedy-trial time.
{¶ 3} In January 2019, McCorkle filed a motion to suppress. The following March,
he was released on bond. His defense counsel withdrew in October, and new counsel
entered an appearance. In December, McCorkle filed a motion for appointment of a state
funded expert, which the trial court denied. In January 2020, his second defense counsel
filed a motion to withdraw. Later that month, McCorkle told the trial court that he wished
1This specification was originally for $36,899 but was later amended to conform to the
evidence presented.
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to proceed pro se.
{¶ 4} Beginning in late February 2020, McCorkle filed a series of notices and
motions, including multiple “notices of judicial notice,” a notice of affirmative defense, a
notice of non-voluntary special appearance, a notice of denial, and a notice of a
constitutional challenge to a state statute. In March, he filed several additional documents.
In April, the trial court held McCorkle in contempt for refusing to comply with a direct order,
and McCorkle was jailed. Five days later, he was released on bond.
{¶ 5} Due to the COVID-19 pandemic, on April 29, 2020, the trial court issued a
speedy-trial tolling order under R.C. 2945.72(H), citing Attorney General Opinion 2020-
002. That order remained in effect at the time of the September 14, 2020 trial. In June,
the court held a hearing on McCorkle’s motion to suppress. McCorkle was arrested on
July 21 and jailed for violating his bond conditions. On July 29, the trial court overruled
the motion to suppress. In early September, McCorkle filed a motion to dismiss based on
a speedy-trial violation. The trial court overruled the motion to dismiss, concluding that
the time for trial had been tolled. Finally, on September 14, 2020, the trial began.2
{¶ 6} At trial, Detective Chris Fischer, a member of the Agencies for Combined
Enforcement (A.C.E.) Task Force, testified that, on November 21, 2018, he and a
confidential informant went to an apartment on Newport Road, in Xenia, Ohio, where he
bought cocaine from McCorkle. The drugs were wrapped in a small piece of plastic that
appeared to have come from a grocery bag. A Chevy Impala registered to McCorkle was
in the parking lot. A week later, in the same apartment, Detective Fischer purchased crack
cocaine from McCorkle. These drugs too were wrapped in a small piece of plastic that
2 McCorkle represented himself, with appointed stand-by counsel.
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looked like it came from a grocery bag.
{¶ 7} Detective Fischer also testified that he had a telephone conversation with
McCorkle during which McCorkle told Fischer that he sells drugs as a business, because
that is how he makes his living. During the call, which was played for the jury, McCorkle
said to Fisher, “I do, but I . . . how can I trust you, is the point that I’m trying to make.
Cause you know, this is somebody’s livelihood at stake.” (State’s Exhibit 1). Later in the
call, McCorkle said, “I just want to hear from your voice. I want to make sure that I can
trust you because me and my friend are here trying to just make a living, man.” (Id.)
{¶ 8} Detective Craig Black testified that he conducted surveillance on McCorkle.
Black saw McCorkle get out of the Impala at the Newport Road location. McCorkle was
seen on multiple occasions carrying the same gray backpack into and out of the Newport
Road apartment and into and out of his home on Hivling Street. On the day that McCorkle
was arrested, Detective Black saw him leave his home carrying the gray backpack.
{¶ 9} The A.C.E. Task Force obtained search warrants for McCorkle’s Hivling
Street home and the Newport Road apartment. On December 6, 2018, minutes after
McCorkle left his home driving the Impala, Officer Brian Atkins pulled him over and
informed him there was an active warrant for his arrest. Deputy William Coe brought his
dog and conducted an open-air sniff around McCorkle’s car. The canine indicated a hit,
and Deputy Coe proceeded to search the vehicle. Coe testified that inside the gray
backpack he found a jar containing 329.2 grams of marijuana and a brick of crack cocaine
weighing 21.2 grams. Meanwhile, Detective Black and others executed a search warrant
on McCorkle’s home. Black testified that they found marijuana, guns, baggies, and three
digital scales in the home. They also found $310 inside a wallet and $36,750 wrapped in
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a plastic grocery bag.
{¶ 10} At the close of the evidence, the trial court concluded that there was
sufficient evidence to determine four of the forfeiture specifications—a handgun with
magazine and ammunition, the Impala, the $310, and the $36,750—and that these would
go to the jury if it found McCorkle guilty, which it did. The jury found McCorkle guilty of all
eight offenses and one firearm specification. It then found that the handgun and car were
subject to forfeiture as instrumentalities of crimes and that the $310 and $36,750 were
subject to forfeiture as proceeds of crimes. The trial court ordered forfeiture and
sentenced McCorkle to a total of seven years in prison.
{¶ 11} McCorkle appeals.
II. Analysis
{¶ 12} McCorkle presents three assignments of error. The first challenges the
forfeiture of the money. The second and third challenge the trial court’s speedy-trial ruling.
A. Forfeiture of money
{¶ 13} The first assignment of error alleges:
The jury held, against the manifest weight of the evidence, that the cash in
the amounts of $36,750 found in the home shared with his girlfriend, and
$310 found in Mr. McCorkle’s wallet at his residence were to be forfeited as
proceeds of criminal activity.
{¶ 14} “A weight of the evidence argument challenges the believability of the
evidence and asks which of the competing inferences suggested by the evidence is more
believable or persuasive.” State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-
525, ¶ 12. “ ‘The court, reviewing the entire record, weighs the evidence and all
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reasonable inferences, considers the credibility of witnesses and determines whether in
resolving conflicts in the evidence, the [factfinder] clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be reversed and a new trial
ordered. The discretionary power to grant a new trial should be exercised only in the
exceptional case in which the evidence weighs heavily against the conviction.’ ” State v.
Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997), quoting State v. Martin, 20 Ohio
App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 15} R.C. 2981.02(A)(1)(b) allows for the forfeiture of “[p]roceeds derived from
or acquired through the commission of an offense.” Generally, “proceeds” are “any
property derived directly or indirectly from an offense,” including money. R.C.
2981.01(B)(11)(a). “[C]urrency subject to forfeiture based on drug trafficking need not be
traced to a specific drug transaction, as long as it is traceable to drug trafficking in
general.” State v. Ihrabi, 2017-Ohio-8373, 87 N.E.3d 267, ¶ 54 (2d Dist.). The burden is
on the State to prove that the money has a connection to the underlying criminal offense,
which the State must prove by “clear and convincing evidence.” Dayton Police Dept. v.
Byrd, 189 Ohio App.3d 461, 2010-Ohio-4529, 938 N.E.2d 1110, ¶ 10 (2d Dist.); R.C.
2981.04(B).
{¶ 16} Here, a detective testified that McCorkle sold him crack cocaine on two
occasions and that, during a phone conversation, McCorkle indicated that he made a
living selling drugs. McCorkle was seen on multiple occasions carrying a gray backpack
into and out of his Hivling Street home and the Newport Road location, including on the
day that he was arrested, and when McCorkle was arrested, crack cocaine was found in
the backpack, along with a jar containing marijuana. In his home, police found $310 in a
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wallet and $36,750 wrapped in a plastic grocery bag, as well as marijuana, guns, baggies,
and digital scales.
{¶ 17} It is certainly true, as we have said, that “[t]here is nothing inherently illegal
about possessing cash.” Ihrabi at ¶ 50, citing Byrd at ¶ 11. And if the cash were the only
thing found in McCorkle’s house, his argument might have some merit, though that it was
found wrapped in a grocery bag might give one pause. But as it is, several other items
connected with drug trafficking were also found. That these items and the cash were
found together constituted circumstantial evidence that the cash was proceeds of drug
trafficking. That “money was found with tools of the drug trade, such as paraphernalia,
scales, or the drugs themselves” is a fact that may indicate a connection to drug
trafficking. State v. Watkins, 7th Dist. Jefferson No. 07 JE 54, 2008-Ohio-6634, ¶ 39, citing
State v. Harris, 12th Dist. Butler No. CA2007-04-089, 2008-Ohio-3380; see also Copley
Twp. Trustees v. $10,600.00 in U.S. Currency, 9th Dist. Summit No. 18985, 1999 WL
1582, *3 (Dec. 30, 1998). See also State v. Delaney, 2018-Ohio-727, 106 N.E.3d 920,
¶ 11 (9th Dist.) ( “the convergence of illegal drugs, drug paraphernalia (including baggies),
and large sums of cash permit a reasonable inference that a person was preparing drugs
for shipment”); State v. Rutledge, 6th Dist. Lucas No. L-12-1043, 2013-Ohio-1482, ¶ 15
(stating that “numerous courts have determined that items such as plastic baggies, digital
scales, and large sums of money are often used in drug trafficking and may constitute
circumstantial evidence,” citing several cases); State v. Batdorf, 2d Dist. Greene No.
2020-CA-3, 2020-Ohio-4396, ¶ 16 (quoting the same from Delaney and Rutledge). This
connection was supported by McCorkle’s comments on the phone indicating that he made
his living selling drugs. Lastly, no alternative explanation of where the money came from
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was offered or was apparent from the evidence. See Watkins at ¶ 44, citing Copley Twp.
Trustees at *3 (“even in the face of suspicious circumstances, if a defendant gives
‘legitimate reasons for carrying thousands of dollars in cash’ without contradicting
evidence from the State, the defendant is much more likely to succeed in a forfeiture
hearing”).
{¶ 18} We cannot say that the jury clearly lost its way or created a manifest
miscarriage of justice when it found that the money in McCorkle’s home was proceeds of
drug trafficking. Consequently, McCorkle’s manifest weight argument is without merit.
{¶ 19} The first assignment of error is overruled.
B. Speedy-trial period
{¶ 20} The second and third assignments of error allege:
The Trial Court erred when it held that Mr. McCorkle’s right to a speedy trial
was within the time permitted by law.
The Trial Court erred when it held that Mr. McCorkle waived his speedy trial
time when the waiver was not knowingly and voluntarily executed.
{¶ 21} “[T]he standard for reviewing claims of speedy trial violations is ‘whether the
trial court’s ruling is supported by the evidence or whether the court abused its discretion
by making a finding manifestly against the weight of the evidence.’ ” State v. Gatewood,
2d Dist. Clark No. 2010-CA-18, 2012-Ohio-202, ¶ 15, citing State v. Humphrey, 2d Dist.
Clark No. 2002-CA-30, 2003-Ohio-3401, ¶ 21.
{¶ 22} “The right to a speedy trial is guaranteed by the Sixth Amendment to the
United States Constitution * * *.” State v. Adams, 43 Ohio St.3d 67, 68, 538 N.E.2d 1025(1989). In Ohio, these rights are also protected by Section 10, Article I of the Ohio
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Constitution, and are enforced by statute. See id. Under R.C. 2945.71(C)(2), a person
charged with a felony must be brought to trial within 270 days after the person’s arrest,
subject to any applicable tolling provisions in R.C. 2945.72.
{¶ 23} McCorkle was arrested on December 6, 2018, and remained in custody until
March 2, 2019, when he was released on bond. While he was in custody, on January 17,
McCorkle filed the motion to suppress. Later, after having been found in contempt of court,
he was in custody for almost a week in April 2020, before being again released on bond.
On April 29, 2020, due to the COVID-19 pandemic, the trial court entered a tolling order
under R.C. 2945.72(H), citing Attorney General Opinion 2020-002, that extended the time
for trial until the scheduled trial date the following September. On July 21, 2020, McCorkle
was rearrested for violating his bond conditions, and he remained in custody until the trial
began. The trial court overruled the suppression motion in late July, and the trial began
in mid-September. The trial court found that 42 days had elapsed from McCorkle’s arrest
until he filed the suppression motion and that, under R.C. 2945.71(E), each of these days
counted as three, for a total of 126 days. The court also found that its April tolling order,
issued while the motion to suppress was still pending, meant that the speedy-trial time
was effectively tolled until the trial started. We see no problem with the trial court’s ruling.
{¶ 24} Under the tolling provisions in R.C. 2945.72, the speedy-trial time may be
extended by “[a]ny period of delay necessitated by reason of a plea in bar or abatement,
motion, proceeding, or action made or instituted by the accused,” R.C. 2945.72(E), as
well as by “the period of any reasonable continuance granted other than upon the
accused’s own motion,” R.C. 2945.72(H). The provision in division (E) was triggered when
McCorkle’s filed the suppression motion, and while the trial court did not decide that
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motion for well over a year and the trial did not begin for over a year and a half, the delay
was justified.
{¶ 25} Many things occurred between McCorkle’s indictment and trial that tolled
the speedy-trial time. Some are attributable to McCorkle: defense counsel was replaced
multiple times, McCorkle filed numerous motions, he was found in contempt, and then he
violated his bond conditions, to name a few. The most significant event, of course, was
the COVID-19 pandemic, which began in early 2020. “[T]he General Assembly tolled
certain statutory time limits because of the COVID-19 global health emergency” from
March 9, 2020, until July 30, 2020. Chapman Ents., Inc. v. McClain, Ohio Slip Opinion
No. 2021-Ohio-2386, __ N.E.3d __, ¶ 10-11; 2020 Am.Sub.H.B. No. 197, Sections 22(B)
and (C). One of the tolled time limits was the speedy-trial time. H.B. 197, Section 22(A)(3)
(tolling “[t]he time within which an accused person must be brought to trial or, in the case
of a felony, to a preliminary hearing and trial”). Moreover, it was the opinion of the Ohio
Attorney General that “[c]ourts may suspend jury trials to prevent the spread of the novel
coronavirus, and they may do so consistent with state and federal speedy-trial
obligations.” 2020 Ohio Atty.Gen.Ops. No. 2020-002, syllabus. Citing “[t]he broad
language of” R.C. 2945.72(H), the opinion concluded that “the current pandemic
emergency provide[d] a ‘reasonable’ basis for continuance.” Id. at p. 2. It further
concluded that “a continuance would comport with state and federal constitutional
guarantees.” Id. at p. 7.
{¶ 26} All in all, we cannot say that the delay in bringing McCorkle to trial violated
his speedy-trial rights. The trial court’s speedy-trial ruling was supported by the evidence
and was eminently reasonable. Because we conclude that McCorkle was brought to trial
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within the statutory time, his argument that his speedy-trial waiver was invalid is moot,
and we decline to consider the issue.
{¶ 27} The second and third assignments of error are overruled.
{¶ 28} As a final matter, we note that, in addition to the supplemental brief that his
appellate counsel filed, McCorkle filed a pro se supplemental brief. We need not consider
it at all, of course, because he is represented by counsel. But we will do so briefly.
{¶ 29} We note first that McCorkle filed the pro se brief as “Eriq Robert Bey
Beneficial Owner, 1st Lien Holder of the McCorkle, Eriq Robert Estate, Registered Owner,
Copyright and Trademark d/b/a ERIQ ROBERT MCCORKLE,” which was just plain
nonsense. It was Eriq McCorkle the human being who was arrested; it was Eriq McCorkle
the human being who was indicted, tried, found guilty, and sentenced; and it is Eriq
McCorkle the human being who is sitting in prison.
{¶ 30} McCorkle asserts four assignments of error in his pro se brief. The first
alleges that his speedy-trial rights were violated. This issue was raised by his appellate
counsel, and we rejected it. The second and third assignments of error allege that the trial
court erred by overruling his motion to suppress. McCorkle argues that the traffic stop
was unlawful because there was no probable cause for the stop and that the search
warrant for his home was defective because there was no probable cause. He says that
all the criminal activity took place at the Newport Road location, and there was no
connection with his home. Given everything that the police had seen and knew, we think
that there was probable cause to stop him for the arrest warrant and to be able to safely
execute the search warrants. Finally, McCorkle alleges that the trial court lacked
jurisdiction because he was an independent and autonomous free man. This argument
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presents more nonsense.
{¶ 31} In sum, even if we were to consider the arguments in McCorkle’s pro se
supplemental brief, we would find no reversible error.
III. Conclusion
{¶ 32} We have overruled all of the properly presented assignments of error. The
trial court’s judgment is affirmed.
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DONOVAN, J. and WELBAUM, J., concur.
Copies sent to:
Marcy A. Vonderwell
Christopher C. Green
Eriq R. McCorkle, #A777-698
Successor to Hon. Stephen A. Wolaver