[Cite as State v. Cox,
2012-Ohio-2100.]
IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 2011 CA 19
v. : T.C. NO. 10CR365
MICAH COX : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
..........
OPINION
Rendered on the 11th day of May , 2012.
..........
NATHANIEL R. LUKEN, Atty. Reg. No. 0087864, Assistant Prosecutor, 61 Greene Street,
Xenia, Ohio 45385
Attorney for Plaintiff-Appellee
MICHAEL B. MILLER, Atty. Reg. No. 0079305, 2160 Kettering Tower, Dayton, Ohio
45423
Attorney for Defendant-Appellant
..........
DONOVAN, J.
{¶ 1} Defendant-appellant Micah Cox appeals his conviction and sentence for one
2
count of conspiracy to commit trafficking in crack cocaine (at least ten grams but less than
twenty-five) in the vicinity of a juvenile, a violation of R.C. 2923.01(A)(2) and
2925.03(A)(1), a felony of the second degree; one count of trafficking in cocaine (at least ten
grams but less than twenty-five grams) in the vicinity of a juvenile, in violation of R.C.
2925.03(A)(1), a felony of the first degree; one count of possession of crack cocaine (at least
ten grams but less than twenty-five grams), in violation of R.C. 2925.11(A), a felony of the
second degree; one count of trafficking in cocaine (at least ten grams but less than one
hundred grams), in violation of R.C. 2925.03(A)(1), a felony of the third degree; one count
of trafficking in crack cocaine (at least five grams but less than ten grams), a violation of
R.C. 2925.03(A)(1), a felony of the third degree; and one count of possession of crack
cocaine (at least five grams but less than ten grams), in violation of R.C. 2925.11(A), a
felony of the third degree.
{¶ 2} Cox filed a timely notice of appeal with this Court on March 21, 2011.
{¶ 3} The offenses which form the basis for the instant appeal occurred during the
course of an undercover illegal narcotics investigation conducted by Yellow Springs Police
Detective Rich Miller as part of an ongoing assignment to the A.C.E. Task Force (Greene
County Agencies for Combined Enforcement).
{¶ 4} A. September 21, 2009
{¶ 5} On September 21, 2009, Det. Miller was informed by confidential
informant, Crystal Rodriguez, who testified at trial, that she knew two individuals named
Micah Cox and Jennifer Younker who were in possession of a quantity of crack cocaine that
they wished to sell. Rodriguez testified that she had been friends with Younker for
3
approximately eleven years, and Younker had informed her that her boyfriend, Cox, had
crack for sale. Det. Miller advised Rodriguez to arrange a meeting with Cox and Younker
so that Rodriguez could make a controlled purchase of a specific quantity of crack cocaine.
{¶ 6} Pursuant to instructions from Det. Miller, Rodriguez arranged with Younker
to purchase a half-ounce of crack cocaine for $700.00 from Cox at the parking lot of the
McDonalds Restaurant on Main Street in Xenia, Ohio. Det. Miller informed Rodriguez that
she would be accompanied by another undercover officer, Det. Naomi Penrod of the A.C.E.
Task Force, during the controlled purchase. Det. Miller fabricated a story for Rodriguez to
use when making the controlled purchase, to wit: Rodriguez was purchasing the drugs for
her friend, played by Det. Penrod, who was then going to give the drugs to her boyfriend,
played by Det. Miller.
{¶ 7} Prior to the purchase, Det. Miller met with Rodriguez and provided her with
the money to purchase the drugs. Det. Miller also placed a digital recorder and a small
transmitting device in Rodriguez’s purse in order to monitor and record the purchase.
Rodriguez was also provided with a digital scale to weigh the amount of drugs to further
authenticate the controlled purchase. Det. Miller testified that he traveled to the location of
the drug transaction so that he could videotape the drug sale from a hidden vantage point in
another part of the McDonalds parking lot.
{¶ 8} Upon arriving at the specified location with Det. Penrod, Rodriguez waited
until Younker arrived. Rodriguez exited her vehicle and got into Younker’s vehicle in the
McDonalds parking lot. Rodriguez testified that she got into the back seat of Younker’s
car. Younker was in the driver’s seat, Cox in the front passenger seat, Cox’s brother, Chris
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Barnett, in the back seat, and Younker’s two year old son was sitting in the back seat of the
vehicle.1 Rodriguez testified that Barnett handed her a baggie of crack cocaine, which she
then weighed on the digital scale. Rodriguez gave the money to Younker, and she got out
of the vehicle and went back to her own car where Det. Penrod was waiting. Rodriguez and
Det. Penrod left the parking lot and met Det. Miller at another location where he took
possession of the crack cocaine and transported it to the Yellow Springs Police Department
to be booked into evidence.
{¶ 9} Younker testified that the crack cocaine sold to Rodriguez on September 21,
2009, was provided by Cox who handed the baggie of drugs to Barnett before they reached
the McDonalds parking lot, and she was only helping him to find buyers for his drugs.
Younker further testified that while she and Barnett were paid for their role in the
transaction, Cox kept a portion of the proceeds from the sale of the half-ounce of crack
cocaine. At trial, the State presented both the audio and video recordings of the September
21, 2009, controlled purchase to the jury.
{¶ 10} B. October 1, 2009
{¶ 11} On October 1, 2009, Det. Miller, posing as the boyfriend of Rodriguez’s
friend from the sale on September 21, 2009, began receiving calls from Younker regarding
another opportunity to purchase crack cocaine from Cox. Det. Miller and Younker had
three telephone conversations, all of which were recorded by Det. Miller. During the course
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Younker testified that her son is the son of Micah Cox’s twin brother,
Michael Cox, who was incarcerated during the events in the instant case.
Apparently, Younker was involved in a relationship with Michael Cox prior to his
incarceration, after which she began dating Micah Cox.
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of the conversations, Younker stated that she could provide another half-ounce of crack
cocaine to Det. Miller for the same price as the prior transaction, $700.00. Younker further
stated that the crack was being supplied by Cox, who she referred to by his nickname
“Twin.” At some point, Det. Miller stopped communicating with Younker and began
receiving calls from Cox, who identified himself as “Twin.” After negotiating for a short
time, Cox agreed to sell Det. Miller approximately ten grams of powder cocaine for $700.00.
{¶ 12} After agreeing on the details of the transaction, Det. Miller received another
incoming phone call from Cox’s number. Apparently, Cox had accidentally dialed his
number because Det. Miller testified that all he could hear during the call was two male
voices, one he identified as Cox’s, speaking in the background about the impending drug
transaction. Det. Miller testified that he became suspicious because Cox had told him that
he would be coming to the deal accompanied by his girlfriend, Younker, not another male.
Det. Miller testified that he thought Cox might be planning to rob him of the money he was
going to use to purchase the powder cocaine. Det. Miller was able to record all of the
conversations he had with Cox on October 1, 2009, with the exception of the accidental
incoming call.
{¶ 13} Based on his suspicions, Det. Miller called off the deal with Cox. Cox,
however, was adamant about completing the transaction, but Det. Miller told him that he
would purchase Cox’s cocaine on another date. During the conversation, Cox attempted to
allay Det. Miller’s concerns over his personal safety, stating “I’m the same dude you got it
from the last time.” Det. Miller testified that he understood this statement to mean that Cox
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was the individual who sold the crack cocaine to Rodriguez on September 21, 2009. Cox
also stated “If I was going to rob you, I would have got you the last time.” Det. Miller
understood that statement to mean that if Cox wanted to rob him, he would have done so on
September 21, 2009, when the money was provided by Det. Penrod posing as his girlfriend
to Rodriguez. Cox also agreed to reduce the price of the cocaine from $700.00 to $650.00.
Nevertheless, Det. Miller refused to purchase the cocaine on October 1, 2009, and canceled
the deal.
{¶ 14} C. October 6, 2009
{¶ 15} On October 6, 2009, Det. Miller spoke with Younker on the telephone again.
Younker sought to initiate another controlled purchase of crack cocaine. After some
negotiations, Det. Miller agreed to purchase a half-ounce of crack cocaine for $630.00 from
Cox. The transaction was to occur at the parking lot at the McDonalds on Main Street in
Xenia, Ohio, where the initial purchase was made on September 21, 2009. Shortly before
the transaction was to occur, Det. Miller received a call from Cox confirming that he was on
his way to the agreed location with the cocaine. Det. Miller informed Cox that he was
going to be in a silver Chevrolet Impala for identification purposes. Det. Miller testified
that he arranged for other A.C.E. Task Force detectives to have his vehicle under
surveillance, while he would be wearing a transmitting device to record the transaction.
{¶ 16} Ultimately, Cox arrived at the parking lot and got into Det. Miller’s car.
Det. Miller testified that Cox produced a baggie of crack cocaine but stated that it was less
than the amount that had been agreed to earlier. Det. Miller weighed the cocaine and
testified that it was approximately seven grams, substantially less than what he originally
7
agreed to purchase. The deal was consummated, however, with Det. Miller paying Cox
$360.00 for the lesser amount of crack cocaine. Cox left after the transaction was
completed, and Det. Miller brought the crack cocaine to the Yellow Springs Police
Department to be booked into evidence.
{¶ 17} On July 2, 2010, Cox was charged by indictment with the following
offenses: Count I, conspiracy to commit trafficking in crack cocaine (at least ten grams but
less than twenty-five); Count II, trafficking in cocaine (at least ten grams but less than
twenty-five grams); Count III, possession of crack cocaine (at least ten grams but less than
twenty-five grams); Count IV, trafficking in cocaine (at least ten grams but less than one
hundred grams); Count V, trafficking in crack cocaine (at least five grams but less than ten
grams); and Count VI, possession of crack cocaine (at least five grams but less than ten
grams). At his arraignment on July 23, 2010, he entered a plea of not guilty to all of the
counts in the indictment.
{¶ 18} Cox filed a motion to suppress on September 23, 2010. After the hearing
held on said motion, the trial court overruled Cox’s motion to suppress in a written decision
on November 15, 2010. On December 17, 2010, Cox filed a pro se motion for the removal
of his counsel. The trial court , however, did not rule on the motion prior to the scheduled
trial date of December 20, 2010. However, Cox did not appear for trial as scheduled.
{¶ 19} Cox was later arrested on a warrant and a three-day trial ended on March 2,
2011. Cox was found guilty of all of the charges against him. At the sentencing hearing
on March 7, 2011, the trial court merged Counts I, II, and III. Counts V and VI were
likewise merged. The State elected Counts II and V for sentencing purposes. The trial court
8
noted that Cox was on post-release control for a separate first degree felony drug conviction
from Fayette County, Ohio, when the instant offenses were committed. The trial court
subsequently sentenced Cox on Counts II, IV, and V to an aggregate term of sixteen years in
prison.
{¶ 20} It is from this judgment that Cox now appeals.
{¶ 21} Cox’s first assignment of error is as follows:
{¶ 22} “THE TRIAL COURT ERRED IN NOT GRANTING THE DEFENDANT
A HEARING ON THE BASIS OF HIS PRO SE MOTION FLED ON DECEMBER 17,
2010, TO REMOVE HIS COUNSEL OF RECORD.”
{¶ 23} In his first assignment, Cox contends that the trial court erred when it failed
to hold a hearing regarding his December 17, 2010, motion to remove his counsel.
{¶ 24} “An indigent defendant has no right to have a particular attorney of his own
choosing represent him. He is entitled to competent representation by the attorney the court
appoints for him. Therefore, in order to demonstrate the good cause necessary to warrant
removing court appointed counsel and substituting new counsel, defendant must show a
breakdown in the attorney-client relationship of such magnitude as to jeopardize defendant’s
Sixth Amendment right to effective assistance of counsel.” State v. Coleman, 37 Ohio St.3d
286, 292,
525 N.E.2d 792 (1988); State v. Murphy,
91 Ohio St.3d 516, 523,
2001-Ohio-112,
747 N.E.2d 765.
{¶ 25} Disagreement between the attorney and client over trial tactics and strategy
does not warrant a substitution of counsel. State v. Furlow, 2d Dist. Clark No. 03CA0058,
2004-Ohio-5279; See State v. Glasure,
132 Ohio App.3d 227,
724 N.E.2d 1165 (7th
9
Dist.1999). Moreover, mere hostility, tension and personal conflicts between attorney and
client do not constitute a total breakdown in communication if those problems do not
interfere with the preparation and presentation of a defense. Furlow, supra.
{¶ 26} The decision whether or not to remove court appointed counsel and allow
substitution of new counsel is addressed to the sound discretion of the trial court, and its
decision will not be reversed on appeal absent an abuse of discretion. Murphy, supra. The
term "abuse of discretion" implies that the court's attitude is unreasonable, arbitrary, or
unconscionable. State v. Adams, 62 Ohio St.2d 151,
404 N.E.2d 144 (1980).
{¶ 27} Initially we note that the trial court’s failure to rule on Cox’s motion to
remove counsel constituted an implicit ruling that the motion was denied. When a trial
court does not specifically rule on a motion, the court is presumed to have overruled it.
Hosta v. Chrysler, 2d Dist. Greene No. 2008 CA 35, 2008 CA 36, 2008-Ohio-4392.
{¶ 28} In his motion to remove, Cox argued that his counsel had failed to allow him
to hear and watch the audio and video recordings made by the A.C.E. Task Force of the drug
transactions even though Cox had asked his counsel if he could. We note Cox’s attorney
had filed and conducted a motion to suppress this exact same evidence two months earlier.
We do not have a transcript of this hearing to discern what, if anything, Cox saw and heard
at that time. Nevertheless, Cox did not raise any issues of ineffective assistance prior to the
second trial setting. Cox further stated that he and his counsel disagreed regarding how the
case should be handled. Cox, however, failed to state in his motion any specific issues over
which he and his counsel disagreed.
{¶ 29} We also note that Cox filed his motion to remove his counsel only three days
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before the first trial date which had been set by the trial court approximately three months
prior. Cox, however, failed to appear on the first day of trial, and another date had to be set
on which to begin the trial. Clearly, the timing of the motion to remove and his
non-appearance on the first trial date suggests that his request was made for the purposes of
delay and not because counsel was in any way deficient in his performance.
{¶ 30} Lastly, we note that Cox failed to express any dissatisfaction with the
performance of his appointed counsel when he appeared for the second trial date on February
28, 2011. Had Cox still been dissatisfied with his counsel’s representation when the trial
finally began, it follows that he could have easily voiced his concerns to the trial court.
Moreover, even if Cox and his counsel failed to agree regarding trial tactics, that reason,
standing alone, would be insufficient to warrant a substitution of counsel.
{¶ 31} Upon review, we find that the record before us suggests that Cox filed his
pro se motion to remove his counsel for the purposes of delay, that is, before the second trial
date he did not express any ongoing dissatisfaction with his attorney. On this record, the
trial court did not abuse its discretion when it failed to question Cox regarding the
allegations made in his motion, thereby implicitly overruling his motion to remove counsel.
{¶ 32} Cox’s first assignment or error is overruled.
{¶ 33} Because they are interrelated, Cox’s second and third assignments will be
discussed together as follows:
{¶ 34} “THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE
FINDING BY THE JURY OF GUILT AS TO COUNT I, CONSPIRACY TO
TRAFFICKING IN COCAINE IN AN AMOUNT EQUAL TO OR EXCEEDING 10
11
GRAMS BUT LESS THAN 25 GRAMS, IN THE VICINITY OF A JUVENILE.”
{¶ 35} “THE FINDING BY THE JURY OF GUILT AS TO COUNT I,
CONSPIRACY TO TRAFFICKING IN COCAINE WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.”
{¶ 36} In his second assignment, Cox argues that the evidence adduced at trial was
insufficient to sustain a conviction for conspiracy to commit trafficking in crack cocaine (at
least ten grams but less than twenty-five) in the vicinity of a juvenile, in violation of R.C.
2923.01(A)(2) and 2925.03(A)(1). Additionally, Cox asserts that his conviction for said
offense was against the manifest weight of the evidence.
{¶ 37} “A challenge to the sufficiency of the evidence differs from a challenge to
the manifest weight of the evidence.” State v. McKnight, 107 Ohio St.3d 101,112,
2005-Ohio-6046,
837 N.E.2d 315. “In reviewing a claim of insufficient evidence, ‘[t]he
relevant inquiry is whether, after reviewing 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.’ (Internal citations omitted). A claim that a jury
verdict is against the manifest weight of the evidence involves a different test. ‘The court,
reviewing the entire record, weighs the evidence and all reasonable inferences, considers the
credibility of witnesses and determines whether in resolving conflicts in the 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. 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.’”
Id.
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{¶ 38} The credibility of the witnesses and the weight to be given to their testimony
are matters for the trier of facts to resolve. State v. DeHass, 10 Ohio St.2d 230, 231,
227
N.E.2d 212 (1967). “Because the factfinder … has the opportunity to see and hear the
witnesses, the cautious exercise of the discretionary power of a court of appeals to find that a
judgment is against the manifest weight of the evidence requires that substantial deference
be extended to the factfinder’s determinations of credibility. The decision whether, and to
what extent, to credit the testimony of particular witnesses is within the peculiar competence
of the factfinder, who has seen and heard the witness.” State v. Lawson, 2d Dist.
Montgomery No. 16288,
1997 WL 476684 (Aug. 22, 1997).
{¶ 39} This court will not substitute its judgment for that of the trier of facts on the
issue of witness credibility unless it is patently apparent that the trier of fact lost its way in
arriving at its verdict. State v. Bradley, 2d Dist. Champaign No. 97-CA-03, 1997 WL
691510 (Oct. 24, 1997).
{¶ 40} “Conspiracy” is defined in R.C. 2923.01(A)(2) in pertinent part:
(A) No person, with purpose to
commit or to
promote or
facilitate the
commission of
… a felony drug
trafficking …
offense … shall
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… with another
person or
persons, plan or
aid in planning
the commission
of any of the
specified
offenses.
(B) No person shall be convicted of conspiracy unless
a substantial overt act in furtherance of the conspiracy is
alleged and proved to have been done by the accused or a
person with whom the accused conspired, subsequent to the
accused’s entrance into the conspiracy. For the purposes of
this section, an overt act is substantial when it is of a character
that manifests a purpose on the part of the actor that the object
of the conspiracy should be completed.
{¶ 41} R.C. 2925.03(A)(1) defines trafficking in drugs and states as follows:
(A) No person shall knowingly do any of the following:
(1) Sell or offer to sell a controlled substance.
…
(C)(4) If the drug involved in the violation is cocaine
or a compound, mixture, preparation, or substance containing
14
cocaine, whoever violates division (A) of this section is guilty
of trafficking in cocaine. The penalty for the offense shall be
determined as follows:
…
(e) … if the amount of the drug involved equals or
exceeds ten grams but is less than twenty-five grams of crack
cocaine, trafficking in cocaine is a felony of the second degree
…. If the amount of the drug involved is within one of those
ranges and if the offense was committed … in the vicinity of
a juvenile, trafficking in cocaine is a felony of the first degree
….
{¶ 42} Lastly, “an offense is ‘committed in the vicinity of a juvenile’ if the offender
commits the offense within one hundred feet of a juvenile or within the view of a juvenile,
regardless of whether the offender knows the age of the juvenile, whether the offender
knows the offense is being committed within one hundred feet of or within view of the
juvenile, or whether the juvenile actually views the commission of the offense.”
{¶ 43} The evidence adduced at trial established all of the elements necessary to sustain
Cox’s conviction for conspiracy to commit trafficking in crack cocaine (at least ten grams
but less than twenty-five) in the vicinity of a juvenile, in violation of R.C. 2923.01(A)(2) and
2925.03(A)(1). Initially, we note that both Younker and Rodriguez testified that Younker’s
two year old son was in the backseat of the vehicle where the drug transaction took place.
Rodriguez testified that Younker informed her that Cox had crack cocaine for sale.
15
{¶ 44} Younker testified that she explained to Cox what Rodriguez wanted, and Cox
indicated to Younker that he would provide that amount prior to the sale. Younker testified
that Cox stated that while he had a portion of the crack cocaine in his possession, he would
have to get the rest from his brother, Barnett. If Younker’s testimony was deemed credible,
then a jury could clearly find that a conspiracy clearly existed between Cox, Younker, and
Barnett to facilitate and commit the sale of at least ten but not less than twenty-five grams of
crack cocaine.
{¶ 45} Younker further testified that while they were on the way to the location of the drug
transaction, Cox removed a baggie of crack cocaine from his pocket and handed it to his
brother, Barnett, in the back seat of the vehicle. The evidence further established that Cox
was present in the vehicle while the sale of the crack cocaine took place. Once the sale to
Rodriguez was completed for $700.00, Cox distributed the drug money to Younker and
Barnett, keeping $100.00 for himself. We also note that Det. Miller testified that on
October 1, 2009, Cox stated that he was the “same dude you got it from the last time.” Det.
Miller testified that he understood this statement to mean that Cox was the individual who
sold the crack cocaine to Rodriguez on September 21, 2009, when Det. Penrod was posing
as Det. Miller’s girlfriend to facilitate the drug transaction. Thus, a review of the record
convinces us that the State’s evidence, taken in its entirety, was sufficient to sustain Cox’s
conviction for conspiracy to commit trafficking in crack cocaine (at least ten grams but less
than twenty-five) in the vicinity of a juvenile.
{¶ 46} Cox’s conviction is not against the manifest weight of the evidence. The credibility
of the witnesses and the weight to be given their testimony were matters for the court to
16
resolve. Cox presented no evidence at trial. Instead, Cox attempted to undermine the
State’s case by discrediting the testimony of Rodriguez and Younker. Specifically, Cox
attempted to establish that Younker and Rodriguez were merely testifying against him to
gain favor with the State in order to avoid additional prison time with respect to separate
criminal charges they were both facing. Nevertheless, the jury did not lose its way simply
because it chose to believe the evidence provided by the State’s witnesses, namely Younkers
and Rodriguez. Having reviewed the entire record, we cannot clearly find that the evidence
weighs heavily against a conviction, or that a manifest miscarriage of justice has occurred.
{¶ 47} Cox’s second and third assignments of error are overruled.
{¶ 48} Because they are interrelated, Cox’s fourth and fifth assignments of error will
discussed together as follows:
{¶ 49} “THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE FINDING BY
THE JURY OF GUILT AS TO COUNT II, COMPLICITY TO TRAFFICKING IN
COCAINE.”
{¶ 50} THE FINDING BY THE JURY AS TO COUNT II, COMPLICITY TO
TRAFFICKING IN COCAINE WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.”
{¶ 51} In his fourth assignment of error, Cox asserts that the evidence adduced at trial was
insufficient to sustain a conviction for complicity to trafficking in crack cocaine (at least ten
grams but less than twenty-five grams) in the vicinity of a juvenile, in violation of R.C.
2925.03(A)(1). Additionally, Cox asserts that his conviction for said offense was against
the manifest weight of the evidence.
17
{¶ 52} “Complicity” is defined in R.C. 2923.03 in relevant part:
(A) No person, acting with the kind of culpability
required for the commission of an offense, shall do any
of the following:
(2) Aid or abet another in committing the offense.
{¶ 53} The drug trafficking statute, R.C. 2925.03, provides in pertinent part:
(A) No person shall knowingly do any of the following:
(1) Sell or offer to sell a controlled substance.
{¶ 54} A person aids and abets the commission of a crime when he advises, supports,
assists, encourages or cooperates with the principal offender, and shares the criminal intent
of the principal offender. State v. Johnson, 93 Ohio St.3d 240,
2001-Ohio-1336,
754
N.E.2d 796. “Such intent may be inferred from the facts and circumstances surrounding the
crime.” State v. Whitfield, 2d Dist. Montgomery No. 22432,
2009-Ohio-293.
{¶ 55} Viewing the evidence in the light most favorable to the State, we find
sufficient evidence to support Cox’s conviction for complicity to trafficking in crack
cocaine. As previously stated, Younker affirmatively testified that Cox was the source of
the crack cocaine sold to Rodriguez on September 21, 2009. Younker also testified that
while she and Barnett were paid for their role in the transaction, Cox kept $100.00 of the
proceeds from the sale of the half-ounce of crack cocaine. Younker’s testimony in this
regard establishes that Cox assisted, facilitated, and/or promoted the commission of
trafficking in crack cocaine. Without Cox’s direct involvement in the drug transaction, the
deal could not have been completed.
18
{¶ 56} Moreover, although Cox attempted to discredit Younker’s testimony as
fabricated and self-serving, the jury did not lose its way simply because it chose to believe
her testimony regarding Cox’s involvement in the transaction. Accordingly, Cox’s
conviction for complicity to trafficking in crack cocaine in Count II is not against the
manifest weight of the evidence.
{¶ 57} Cox’s fourth and fifth assignments of error are overruled.
{¶ 58} Because they are interrelated, Cox’s sixth and seventh assignments of error
will be discussed together as follows:
{¶ 59} “THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE
FINDING BY THE JURY OF GUILT AS TO COUNT III, POSSESSION OF COCAINE.”
{¶ 60} “THE FINDING BY THE JURY OF GUILT AS TO COUNT III,
POSSESSION OF COCAINE, WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.”
{¶ 61} In his sixth assignment of error, Cox argues that the evidence adduced at
trial was insufficient to sustain a conviction for possession of crack cocaine (at least ten
grams but less than twenty-five grams), in violation of R.C. 2925.11(A). Additionally, Cox
asserts that his conviction for said offense was against the manifest weight of the evidence.
{¶ 62} To prove a violation of R.C. 2925.11(A), the State was required to prove
beyond a reasonable doubt that Cox knowingly possessed a controlled substance, namely the
crack cocaine sold to Rodriguez during the controlled purchase on September 21, 2009.
{¶ 63} Knowingly is defined in R.C. 2901.22(B):
A person acts knowingly, regardless of his purpose, when he is
19
aware that his conduct will probably cause a certain result or
will probably be of a certain nature. A person has knowledge
of circumstances when he is aware that such circumstances
probably exist.
{¶ 64} “Possession” is defined in R.C. 2925.01(K):
Possess or possession means having control over a thing or
substance, but may not be inferred solely from mere access to
the thing or substance through ownership or occupation of the
premises upon which the thing or substance is found.
{¶ 65} Possession of a drug may be either actual physical possession or constructive
possession. State v. Butler, 42 Ohio St.3d 174,
538 N.E.2d 98 (1989). A person has
constructive possession of an item when he is conscious of the presence of the object and
able to exercise dominion and control over that item, even if it is not within his immediate
physical possession. State v. Hankerson,
70 Ohio St.2d 87,
434 N.E.2d 1362 (1982); State v.
Wolery,
46 Ohio St.2d 316,
348 N.E.2d 351 (1976).
{¶ 66} Readily usable drugs found in very close proximity to a person may
constitute circumstantial evidence sufficient to support a finding that the person
constructively possessed those drugs. State v. Miller, 2d Dist. Montgomery No. 19174,
2002-Ohio-4197. In determining whether a defendant knowingly possessed a controlled
substance, it is necessary to examine the totality of the relevant facts and circumstances.
State v. Teamer,
82 Ohio St.3d 490, 492,
696 N.E.2d 1049 (1998); State v. Pounds, 2d Dist.
Montgomery No. 21257,
2006-Ohio-3040. The State may prove constructive possession
20
solely through circumstantial evidence. State v. Barnett, 2d Dist. Montgomery No. 19185,
2002-Ohio-4961. Circumstantial evidence and direct evidence have the same probative
value. State v. Jenks,
61 Ohio St.3d 259,
574 N.E.2d 492 (1991).
{¶ 67} Younker’s testimony was that on September 21, 2009, Cox handed the
baggie of crack cocaine to Barnett immediately prior to their arrival at the McDonalds
parking lot where the transaction was conducted. Moreover, after she returned from the
vehicle in which Cox was present, Rodriguez had crack that she had just purchased therein.
Det. Miller also testified that on October 1, 2009, Cox stated that he was the “same dude you
got it from the last time,” meaning the source of the crack cocaine from the controlled
purchase on September 21, 2009. Viewed in a light most favorable to the State, this
evidence establishes that Cox knowingly possessed the crack cocaine at issue in Count III.
Additionally, we find that Cox’s conviction for possession of crack cocaine in Count III was
not against the manifest weight of the evidence.
{¶ 68} Cox’s sixth and seventh assignments of error are overruled.
{¶ 69} Because they are interrelated, Cox’s eighth and ninth assignments of error
will be discussed together as follows:
{¶ 70} “THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE
FINDING BY THE JURY OF GUILT AS TO COUNT IV, TRAFFICKING IN COCAINE.”
{¶ 71} “THE FINDING BY THE JURY OF GUILT AS TO COUNT IV,
TRAFFICKING IN COCAINE, WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.”
{¶ 72} In his eighth assignment, Cox asserts that the evidence adduced at trial was
21
insufficient to sustain a conviction for one count of trafficking in cocaine (at least ten grams
but less than one hundred grams), in violation of R.C. 2925.03(A)(1). Cox also argues that
his conviction for said offense was against the manifest weight of the evidence.
Specifically, Cox contends that the State failed to adduce sufficient evidence to prove that he
offered to sell powder cocaine to Det. Miller. Cox also asserts that Det. Miller could not
have been sure that the individual to whom he was speaking was Cox.
{¶ 73} Det. Miller testified that Cox initially offered to sell him ten grams of
powder cocaine for $700.00. Det. Miller also testified that Cox’s phone calls on October 1,
2009, came from Younker’s phone number, and that the caller identified himself as “Twin,”
Cox’s nickname. We note that at trial, Younker identified Cox’s voice as the one on the
recordings from the October 1, 2009, aborted drug transaction. After Det. Miller terminated
the deal out of fear for his personal safety, Cox became relatively agitated, stating that he
really wanted the drug sale to occur, even going so far as to lower the price while increasing
the quantity of the cocaine he intended to sell to Det. Miller.
{¶ 74} Ohio Rule of Evidence 901(B)(5) states that authentication or identification
of a voice may be done “by opinion based upon hearing the voice at any time under
circumstances connecting it with the alleged speaker.” On October 6, 2009, Det. Miller met
with Cox in-person and spoke with him during that particular drug transaction. As a result,
Det. Miller would be able to state his opinion on voice identification, thus identifying Cox’s
voice as the one on the recordings from the aborted controlled purchase on October 1, 2009.
Viewed in a light most favorable to the State, the evidence adduced was sufficient to sustain
Cox’s conviction for trafficking in cocaine based on his offer to sell Det. Miller
22
approximately nine grams of powder cocaine on October 1, 2009.
{¶ 75} Moreover, although Cox attempted to undermine Det. Miller’s testimony,
the jury did not lose its way simply because it chose to believe his testimony regarding Cox’s
offer to sell nine grams of powder cocaine, as well as his identification of Cox as the
individual speaking during the phone calls on October 1, 2009. Accordingly, Cox’s
conviction for trafficking in cocaine in Count IV is not against the manifest weight of the
evidence.
{¶ 76} Cox’s eighth and ninth assignments of error are overruled.
{¶ 77} Cox’s tenth assignment of error is as follows:
{¶ 78} “THE TRIAL COURT ABUSED ITS DISCRETION BY NOT FINDING
COUNTS IV, V, AND VI TO BE ALLIED OFFENSES OF SIMILAR IMPORT AT
SENTENCING.”
{¶ 79} In his tenth assignment, Cox contends that the trial court erred when it failed
to merge Count IV with Counts V and VI at sentencing. Specifically, Cox argues that his
trafficking in cocaine charge in Count IV was a product of the same conduct which formed
the basis for the trafficking in crack cocaine charge in Count V. Accordingly, Cox argues
that the trial court should have merged the counts.
{¶ 80} R.C. 2941.25, concerning allied offenses of similar import, provides:
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the
indictment or information may contain counts for all such
offenses, but the defendant may be convicted of only one.
23
(B) Where the defendant’s conduct constitutes two or more
offenses of dissimilar import, or where his conduct results in
two or more offenses of the same or similar kind committed
separately or with a separate animus as to each, the indictment
or information may contain counts for all such offenses, and
the defendant may be convicted of all of them.
{¶ 81} “R.C. 2941.25 codifies the double jeopardy protections in the federal and
Ohio constitutions, which prohibit courts from imposing cumulative or multiple
punishments for the same criminal conduct unless the legislature has expressed an intent to
impose them. R.C. 2941.25 expresses the legislature’s intent to prohibit multiple
convictions for offenses which are allied offenses of similar import per paragraph (A) of that
section, unless the conditions of paragraph (B) are also satisfied.” State v. Barker, 183 Ohio
App.3d 414,
2009-Ohio-3511,
917 N.E.2d 324, (2d Dist.), ¶22, citing State v. Rance,
85
Ohio St.3d 632,
710 N.E.2d 699 (1999), overruled on other grounds by State v. Johnson,
128
Ohio St.3d 153,
2010-Ohio-6314,
942 N.E.2d 1061.
{¶ 82} In Johnson, the Ohio Supreme Court recently sought to clarify the process
by which courts determine whether offenses are allied offenses of similar import. Johnson
overruled Rance “to the extent that it calls for a comparison of statutory elements solely in
the abstract under R.C. 2941.25.” Johnson at ¶44. Now, “[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.
{¶ 83} Johnson states that “the intent of the General Assembly is controlling.” Id. at
24
¶46. “We determine the General Assembly’s intent by applying R.C. 2941.25, which
expressly instructs courts to consider the offenses at issue in light of the defendant’s
conduct.” Id. The trial court must determine prior to sentencing whether the offenses were
committed by the same conduct. The court no longer must perform any hypothetical or
abstract comparison of the offenses at issue in order to conclude that the offenses are subject
to merger. Id. at ¶47 “In determining whether offenses are allied offenses of similar
import under R.C. 2941.25(A), the question is whether it is possible to commit one offense
and commit the other with the same conduct, not whether it is possible to commit one
without committing the other. If the offenses correspond to such a degree that the conduct
of the defendant constituting commission of one offense constitutes commission of the
other, then the offenses are of similar import.” Id. at ¶48 (internal citation omitted).
{¶ 84} “If the multiple offenses can be committed by the same conduct, then the
court must determine whether the offenses were committed by the same conduct, i.e., ‘a
single act, committed with a single state of mind.’” Id. at ¶49 (citation omitted). “If the
answer to both questions is yes, then the offenses are allied offenses of similar import and
will be merged.” Id. at ¶50. “Conversely, if the court determines that the commission of
one offense will never result in the commission of the other, or if the offenses are committed
separately, or if the defendant has separate animus for each offense, then, according to R.C.
2941.25(B), the offenses will not merge.” Id. at ¶51.
{¶ 85} Upon review, it is clear that Count IV, trafficking in cocaine, was committed
separately from Count V and VI, trafficking in crack cocaine and possession of crack
cocaine, respectively. The conduct forming the basis of the offense in Count IV occurred
25
on October 1, 2009, when Cox offered to sell Det. Miller ten grams of powder cocaine for
$700. Conversely, the conduct forming the basis of Counts V and VI occurred on October
6, 2009, when Cox actually sold Det. Miller seven grams of crack cocaine for $360.00.
Simply put, these were different drug deals made on different days regarding different types
of cocaine: powder cocaine on October 1, 2009, as opposed to crack cocaine on October 6,
2009. Thus, the trial court properly concluded that the offenses were not allied offenses of
similar import and did not err when it refused to merge Count IV with Counts V and VI for
the purposes of sentencing. Lastly, we note that the record supports the conclusion that the
trial court properly addressed and completed its allied offenses determination prior to
sentencing.
{¶ 86} Cox’s tenth assignment of error is overruled.
{¶ 87} Cox’s eleventh assignment of error is as follows:
{¶ 88} “THE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF
COUNSEL IN FAILURE [sic] TO PROPERLY OBJECT TO THE ADMISSION OF THE
AUDIO TAPE AS TRIAL EXHIBIT #1.”
{¶ 89} In his eleventh assignment, Cox argues that he received ineffective
assistance when his counsel failed to object to the admission of State’s Exhibit #1, which
contained recordings that were not admitted as testimony, nor authenticated by the State.
{¶ 90} “We review the alleged instances of ineffective assistance of trial counsel
under the two prong analysis set forth in Strickland v. Washington, 466 U.S. 668,
104 S.Ct.
2052,
80 L.Ed.2d 674 (1984), and adopted by the Supreme Court of Ohio in State v. Bradley
(1989),
42 Ohio St.3d 136, … . Pursuant to those cases, trial counsel is entitled to a
26
strong presumption that his or her conduct falls within the wide range of reasonable
assistance. Strickland, 466 U.S. at 688. To reverse a conviction based on ineffective
assistance of counsel, it must be demonstrated that trial counsel’s conduct fell below an
objective standard of reasonableness and that his errors were serious enough to create a
reasonable probability that, but for the errors, the result of the trial would have been
different.
Id. Hindsight is not permitted to distort the assessment of what was reasonable
in light of counsel’s perspective at the time, and a debatable decision concerning trial
strategy cannot form the basis of a finding of ineffective assistance of counsel.” (Internal
citation omitted). State v. Mitchell, 2d Dist. Montgomery No. 21957,
2008-Ohio-493, ¶ 31.
{¶ 91} An appellant is not deprived of effective assistance of counsel when counsel
chooses, for strategic reasons, not to pursue every possible trial tactic. State v. Brown, 38
Ohio St.3d 305, 319,
528 N.E.2d 523 (1988). The test for a claim of ineffective assistance
of counsel is not whether counsel pursued every possible defense; the test is whether the
defense chosen was objectively reasonable. Strickland v. Washington,
466 U.S. 668,
104
S.Ct. 2052. A reviewing court may not second-guess decisions of counsel which can be
considered matters of trial strategy. State v. Smith,
17 Ohio St.3d 98,
477 N.E.2d 1128
(1985). Debatable strategic and tactical decisions may not form the basis of a claim for
ineffective assistance of counsel, even if, in hindsight, it looks as if a better strategy had been
available. State v. Cook,
65 Ohio St.3d 516, 524,
605 N.E.2d 70 (1992).
{¶ 92} After a thorough review of the record, we conclude that Cox has failed to
establish that he was prejudiced by his counsel’s failure to object to the admission of State’s
Exhibit #1. Initially we note that the admissible portion of the evidence on the audiotape
27
comprising State’s Exhibit #1 was played for the jury during trial. Additionally, while it is
true that defense counsel did not object to admission of State’s Exhibit #1, the record
indicates that defense counsel entered into an agreement with the State whereby the tape
would be admitted into evidence, but the bailiff would be instructed not to permit the jury to
hear the portion of the tape which was inadmissible. On appeal, Cox does not argue that
State’s Exhibit #1 was inadmissible in its entirety. Rather, Cox contends only a portion of
the tape was inadmissible, and it appears from the record that steps were taken to insure a
portion of the tape was kept from the jury pursuant to the agreement between the parties.
Cox does not argue that he was in any way prejudiced by the parties’ agreement to instruct
the bailiff not to allow the jury to hear the inadmissible portion of the tape, nor does he
suggest that there was a breach of this directive. Thus, Cox has failed to establish that his
counsel’s performance was deficient. “Reviewing courts must indulge in a strong
presumption that counsel’s conduct was not improper, and reject post-trial scrutiny of an act
or omission that was a matter of trial tactics merely because it failed to avoid a conviction.”
State v. Reid, 2d Dist. Montgomery No. 23409, 2010-Ohio-1686.
{¶ 93} Cox’s eleventh assignment of error is overruled.
{¶ 94} Because they are interrelated, Cox’s final two assignments of error will be
discussed together as follows:
{¶ 95} “THE TRIAL COURT ERRED IN SENTENCING THE DEFENDANT TO
A CONSECUTIVE SENTENCE WITHOUT SPECIFYING THE REASONS ALLOWED
BY O.R.C. 2929.14(E)(4).”
{¶ 96} “THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING
28
THE DEFENDANT TO A SENTENCE OF EIGHT YEARS ON COUNT II; FOUR
YEARS ON COUNT IV; AND FOUR YEARS ON COUNT V, CONSECUTIVE TO ONE
ANOTHER FOR A TOTAL OF 16 YEARS.”
{¶ 97} In his final assignments, Cox contends that the trial court sentenced him to
consecutive sentences which totaled sixteen years in prison without first considering R.C.
2929.14(E)(4).
{¶ 98} A trial court has broad discretion in sentencing a defendant and a reviewing
court will not interfere with the sentence unless the trial court abused its discretion. State v.
Reese, 2d Dist. Montgomery No. 21825, 2007-Ohio-6696; State v. Durham, 2d Dist.
Montgomery No. 21589,
2007-Ohio-6262; State v. Rose, 2d Dist. Montgomery No. 21673,
2007-Ohio-4212; State v. Slone, 2d Dist. Greene No. 2005 CA 79,
2007-Ohio-130. The
term "abuse of discretion" implies that the court's attitude is unreasonable, arbitrary, or
unconscionable.
Adams, supra. A court will not typically be found to have abused its
discretion in sentencing if the sentence it imposes is within the statutory limits. State v.
Muhammad, 8th Dist. Cuyahoga No. 88834,
2007-Ohio-4303; State v. Burge,
82 Ohio
App.3d 244, 249,
611 N.E.2d 866 (1992).
{¶ 99} After State v. Foster, 109 Ohio St.3d 1,
2006-Ohio-856,
845 N.E.2d 470,
and at the time of Cox’s sentencing, trial courts were not required to make any findings or
give reasons before imposing any sentence within the authorized statutory range, including
maximum, consecutive, or more than minimum sentences. Foster, syllabus at ¶ 7. Courts,
nevertheless, are still required to comply with the sentencing laws unaffected by Foster, such
as R.C. 2929.11 and 2929.12 which require consideration of the purposes and principles of
29
felony sentencing and the seriousness and recidivism factors. State v. Mathis, 109 Ohio St.3d
54,
2006-Ohio-855,
846 N.E.2d 1. However, a sentencing court does not have to make any
specific findings to demonstrate its consideration of those general guidance statutes. Foster
at ¶ 42; State v. Lewis, 2d Dist. Greene No. 06 CA 119,
2007-Ohio-6607. And, where the
record is silent, a presumption exits that the trial court has considered the factors. State v.
Adams,
37 Ohio St.3d 295, 297, 525 N.E.2d (1988). Further, where a criminal sentence is
within statutory limits, an appellate court should accord the trial court the presumption that it
considered the statutory mitigating factors. State v. Taylor,
76 Ohio App.3d 835, 839,
603
N.E.2d 401 (2d Dist.1992); State v. Crouse,
39 Ohio App.3d 18, 20,
528 N.E.2d 1283 (2d
Dist.1987). Consequently, the appellant has an affirmative duty to show otherwise.
{¶ 100} Initially, we note that pursuant to Foster, judicial fact-finding is not
required before imposition of consecutive prison terms. Thus, the trial court was not
required to make any findings under R.C. 292.14(E)(4) when it imposed consecutive prison
terms in the instant case. Additionally, it is undisputed that the sentences imposed by the
trial court were within the applicable statutory ranges for the offenses. Therefore, Cox’s
sentence was not contrary to law.
{¶ 101} Lastly, the trial court did not abuse its discretion when it sentenced
Cox to an aggregate sentence of sixteen years in prison. The trial court noted that Cox had
only been out of prison for five months and was on post-release control when he committed
the instant offenses. Moreover, Cox had previously been incarcerated for first degree felony
drug trafficking in the vicinity of a juvenile, the same type of crime for which he was
convicted in the instant case. The trial court also noted that Cox had accrued sixteen
30
disciplinary violations during his previous period of incarceration, and had also failed to
appear for trial court in the present case. We also note that the trial court affirmatively
stated in its second amended judgment entry that it considered both R.C. 2929.11 and
2929.12 before imposing sentence. It is clear from the record that the trial court did not
abuse its discretion when it considered the appropriate statutory factors before sentencing
Cox to consecutive sentences.
{¶ 102} Cox’s twelfth and thirteenth assignments of error are overruled.
{¶ 103} All of Cox’s assignments of error having been overruled, the
judgment of the trial court is affirmed.
..........
FAIN, J. and FROELICH, J., concur.
Copies mailed to:
Nathaniel R. Luken
Michael B. Miller
Hon. Stephen A. Wolaver
