[Cite as Cleveland v. Carson, 2014-Ohio-608.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 100060
CITY OF CLEVELAND PLAINTIFF-APPELLEE
vs.
YALANDA CARSON
DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cleveland Municipal Court Case No. 2012 CRB 039089
BEFORE: Boyle, A.J., S. Gallagher, J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: February 20, 2014 ATTORNEY FOR APPELLANT
Thomas G. Haren Seeley, Savidge, Ebert & Gourash 26600 Detroit Road Suite 300 Westlake, Ohio 44145
ATTORNEYS FOR APPELLEE
Barbara Langhenry Director of Law BY: Victor R. Perez Chief Prosecutor Marco A. Tanudra Assistant City Prosecutor Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 MARY J. BOYLE, A.J.:
{¶1} Defendant-appellant, Yalanda Carson, appeals her conviction for permitting
drug abuse. Finding no merit to the appeal, we affirm.
Procedural History and Facts
{¶2} Carson was charged with a single count of permitting drug abuse, a
violation of R.C. 2925.13. She pleaded not guilty to the charge, and the matter
proceeded to a bench trial where the following evidence was presented.
{¶3} Following reports of drug activity at 10909 Sandusky Avenue and the
discovery of cocaine residue in several sandwich-size bags during a “trash pull” outside
of the residence, Cuyahoga Metropolitan Housing Authority (“CMHA”) police officers
obtained a search warrant for the premises. Carson resided at the house with her
husband, Timothy Burrage, and their two children. The CMHA officers, in conjunction
with a Cleveland police SWAT unit and K-9 unit, executed the warrant on November 2,
2012.
{¶4} According to CMHA police officer Paul Hermensky, the drug-sniffing
canine present at the scene alerted to something in the dining room. In one dining room
cabinet, police discovered a ceramic plate with a white substance, later determined to be
1.54 grams of cocaine, and a razorblade. In another dining room cabinet, police
discovered “marijuana roaches” and a marijuana grinder. Based on the photographs
offered into evidence, the dining room cabinets had leaded-glass doors. Police further
discovered a marijuana grinder on the dining room table and a scale with residue in the immediate-mantel area. The residue on the scale was later determined to be cocaine.
Hermensky testified that all of these items were in plain view upon their entry into the
home.
{¶5} Officer Hermensky further testified that “a nice sum of crack cocaine” was
found in a jacket stored in the entryway closet, which was later determined to be 8.87
grams of crack cocaine. The officers also located a firearm and two magazine cartridges
under the master bedroom mattress.
{¶6} Officer Hermensky further indicated that they encountered six people upon
entering the home: Carson, Burrage, their two children (both under the age of 18), and
two other adult males. Officer Hermensky testified that Carson indicated that they were
all playing cards earlier and that she had smoked some marijuana. She denied, however,
being aware of any of the items seized from the house.
{¶7} CMHA police detective Thomas Williams corroborated officer
Hermensky’s testimony. He further testified that Burrage pleaded guilty to drug
trafficking in connection with the evidence seized from the search.
{¶8} The trial court found Carson guilty of the single charge of permitting drug
abuse and sentenced her to 180 days in jail and a $1,000 fine. The trial court further
ordered all of the days in jail suspended, $800 of the fine suspended, and one year of
community controlled sanctions.
{¶9} Carson appeals her conviction, raising four assignments of error:
I. The trial court erred by denying appellant’s motion for continuance due to new trial counsel’s being unprepared to proceed on the scheduled trial date, thus denying appellant effective assistance of counsel in violation of Amendments VI and XIV of the United States Constitution, and Article I, Section 10 of the Ohio Constitution.
II. Appellant’s former public defender provided ineffective assistance of counsel by failing to follow the procedure outlined in R.C. 2925.51 and demanding live testimony from the lab technician who tested the alleged contraband, thus waiving appellant’s right to confront the witnesses against her in violation of Amendments VI and XIV of the United States Constitution, and Article I, Section 10 of the Ohio Constitution.
III. The trial court erred by exercising subject matter jurisdiction over this case, where the officers executed an extra-jurisdictional search warrant.
IV. The trial court erred by convicting appellant based on insufficient evidence, thereby denying her due process of law in violation of Amendment XIV to the United States Constitution and Article I, Section 10 of the Ohio Constitution.
{¶10} For ease of discussion, we will address these assignments of error out of
order.
Denial of Motion for Continuance
{¶11} In her first assignment of error, Carson argues that the trial court abused its
discretion in denying her motion to continue the trial. She further contends that the
denial of her trial counsel’s motion for a continuance denied her effective assistance of
counsel. We disagree.
{¶12} The decision to grant or deny a continuance rests with the sound discretion
of the trial court and will not be reversed absent an abuse of discretion. State v.
Character, 8th Dist. Cuyahoga No. 93765, 2010-Ohio-4128, ¶ 16. “Abuse of discretion”
has been described as a ruling that lacks a “sound reasoning process”; it is a decision that is unreasonable, arbitrary, or unconscionable. State v. Torres, 8th Dist. Cuyahoga No.
99596, 2013-Ohio-5030, quoting AAAA Ents., Inc. v. River Place Community Urban
Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).
{¶13} “‘There are no mechanical tests for deciding when a denial of a continuance
is so arbitrary as to violate due process. The answer must be found in the circumstances
present in every case, particularly in the reasons presented to the trial judge at the time the
request is denied.’” State v. Unger, 67 Ohio St.2d 65, 67, 423 N.E.2d 1078 (1981),
quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964). A
trial court should consider certain factors when deciding whether to grant a criminal
defendant’s motion for a continuance: (1) the length of the requested delay; (2) whether
the defendant has requested and received other continuances; (3) the inconvenience to
each of the parties and their attorneys, witnesses, or the court; (4) the legitimacy of the
request or whether it is simply a dilatory tactic; (5) whether the requesting party’s actions
created the need for the delay; and (6) any other relevant factors based on the facts of the
case. Id.
{¶14} Here, the record reveals that Carson’s attorney moved for the continuance
the day of trial, despite the trial court having granted several continuances on the
defendant’s behalf previously. The case had been pending for over five months, placing
the case within the six-month limit of Sup.R. 39. The city’s witnesses were all present
and ready to testify. Notably, defense counsel ultimately acknowledged that he was
prepared to go to trial. It appears that the defense counsel’s primary motivation for the continuance was for the trial court to consider his untimely motion to suppress that he had
filed that same day. As discussed below, however, the motion lacked merit and,
therefore, Carson suffered no prejudice by the trial court’s refusal to grant leave to file the
motion and continue the trial.
{¶15} The first assignment of error is overruled.
Court’s Subject Matter Jurisdiction
{¶16} In her third assignment of error, Carson argues that the trial court lacked
subject matter jurisdiction over the case because the CMHA officers, who executed the
search warrant and charged Carson, operated outside their jurisdictional limits.
Specifically, Carson contends that the CMHA officers only have authority to exercise
police powers on CMHA properties, which did not include the property at issue.
{¶17} In support of this argument, Carson relies on dicta contained in State v.
Dailey, 8th Dist. Cuyahoga No. 93214, 2010-Ohio-1981, ¶ 19, wherein this court
expressed concern over a CMHA officer stopping an individual outside of a CMHA
property pursuant to a mutual aid agreement with the local municipality. But Carson’s
argument is misplaced. In this case, both Officer Hermensky and Det. Williams testified
that, in addition to being CMHA officers, they are sworn Cuyahoga County sheriff’s
deputies. This court has consistently rejected any argument that CMHA officers who
serve as a deputy sheriff lack the authority to arrest outside CMHA properties. As this
court has previously stated:
R.C. 2935.03(A)(1) allows a peace officer to effectuate an arrest within his appointed territorial jurisdiction. A deputy sheriff’s territorial jurisdiction is limited to the county in which that deputy has been elected or appointed to perform his duties. See In re Sulzmann, Sheriff (1932), 125 Ohio St. 594, 596, 183 N.E. 531. Therefore, since [the CMHA officers] testified they were sworn deputy sheriffs at the time of the arrest, they had proper authority to arrest appellant within Cuyahoga County.
State v. Moore, 8th Dist. Cuyahoga No. 92829, 2010-Ohio-3305, ¶ 38; see also State v.
Banks, 8th Dist. Cuyahoga No. 97299, 2012-Ohio-2304, ¶ 18 (recognizing that CMHA
officers who are also sworn as a sheriff’s deputy possess the authority to arrest within the
county).
{¶18} While Carson acknowledges these cases, she argues that they are
inapplicable because they dealt with a motion to suppress and not a motion to dismiss.
These cases, however, recognize the authority of CMHA officers, who also serve as a
sheriff’s deputy, to arrest outside of a CMHA property within Cuyahoga County. Given
that Carson’s motion to dismiss argument is premised on the CMHA officers’ lacking
authority, these cases directly belie such a claim.
{¶19} Further, Carson’s subject matter jurisdiction argument fails regardless of the
CMHA officers’ authority to execute the search. As explained by the Ohio Supreme
Court, “municipal courts are created by statute, R.C. 1901.01, and their subject-matter
jurisdiction is also set by statute.” State v. Mbodji, 129 Ohio St.3d 325, 2011-Ohio-2880,
951 N.E.2d 1025, ¶ 11. An Ohio municipal court “has jurisdiction over misdemeanors
occurring within its territorial jurisdiction.” Id., citing R.C. 1901.20(A)(1). The filing
of a complaint, in accordance with Crim.R. 3, invokes the jurisdiction of a municipal
court. Id. at ¶ 12. {¶20} Here, the offense at issue, permitting drug abuse, is a misdemeanor offense
(R.C. 2925.13(C)(2)). Because the instant case involved an alleged misdemeanor
violation occurring within Cleveland, and the complaint complied with Crim.R. 3, the
trial court had subject-matter jurisdiction over the offense. Id. at ¶ 11-12, citing R.C.
1901.02(A)(2) and (B). See also State v. Roskovich, 7th Dist. Belmont No. 04BE37,
2005-Ohio-2719, ¶ 14 (rejecting defendant’s claim that court lacked subject matter
jurisdiction, noting that “[t]he officers’ territorial jurisdiction is simply unrelated to the
trial court’s jurisdiction”).
{¶21} The third assignment of error is overruled.
Ineffective Assistance of Counsel
{¶22} In her second assignment of error, Carson argues that she was denied
effective assistance of counsel.
{¶23} To establish ineffective assistance of counsel, a defendant must show (1)
deficient performance by counsel, i.e., performance falling below an objective standard of
reasonable representation, and (2) prejudice, i.e., a reasonable probability that but for
counsel’s errors, the proceeding’s result would have been different. Strickland v.
Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.
Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the
syllabus.
{¶24} Carson first complains that the trial court’s denial of her continuance
coupled with the public defender’s rotation of defense counsel deprived her of the effective assistance of counsel. She contends that had her trial counsel been assigned to
the case earlier, he would have timely filed a motion to dismiss or motion to suppress
based on the extra-territorial search. But as discussed above, there are no grounds to
grant either motion. The CMHA officers had the authority to execute the search in this
case. Moreover, despite the public defender’s rotation of attorneys, Carson’s counsel
was prepared for trial, as represented by her counsel to the trial court prior to the trial
commencing.
{¶25} Carson next argues that she was denied effective assistance of counsel based
on her trial counsel’s failure to subpoena the lab technician who signed the lab report that
detailed the amount and existence of cocaine. She argues that because her trial
counsel failed to do so, he effectively waived her right to confront the witness at trial.
She points to R.C. 2925.51(C), which recognizes that a laboratory report from the bureau
of criminal identification and investigation, is not considered prima facie evidence of the
content, identity, and weight of the substance “if the accused or the accused’s attorney
demands the testimony of the person signing the report, by serving the demand upon the
prosecuting attorney within seven days * * * from receipt of the report.” Otherwise,
without such a demand, the report is considered prima facie evidence under R.C.
2925.51(A) and any subsequent confrontation issue is waived. See State v. Collins, 8th
Dist. Cuyahoga No. 95422, 2011-Ohio-4808, ¶ 57.
{¶26} But Ohio courts have routinely held that a defense counsel’s decision to
forgo filing a demand for testimony of the lab technician under R.C. 2925.51 falls within the realm of trial strategy. Id.; State v. Wright, 9th Dist. Lorain No. 05CA008675,
2006-Ohio-926, ¶ 17. And while Carson points to her trial counsel’s stated admission
that it was not his trial strategy, we find that these remarks hold no weight. Notably,
Carson’s trial counsel never moved for a continuance of the trial for the stated purpose of
calling the lab technician as a witness. Trial counsel indicated his desire to do so only
after the city had rested and after his Crim.R. 29 motion was denied. Further, defense
counsel’s strategy of questioning the officers as to the existence of “dummy stones” and
“dummy rocks,” implying that the drugs were fake, was not hampered by the absence of
the lab technician’s testimony. If anything, it appears that defense counsel’s theory was
stronger without live testimony refuting it. We simply find no evidence in the record to
support Carson’s broad claim that she was prejudiced by the absence of the lab
technician’s testimony.
{¶27} The second assignment of error is overruled.
Sufficiency of the Evidence
{¶28} In her final assignment of error, Carson argues that the city failed to present
sufficient evidence to sustain the conviction. We disagree.
{¶29} When an appellate court reviews a record upon a sufficiency challenge,
“‘the relevant inquiry is whether, after viewing the evidence in a light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the
crime proven beyond a reasonable doubt.’” State v. Leonard, 104 Ohio St.3d 54,
2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶30} Carson was convicted of a single count of permitting drug abuse, a violation
of R.C. 2925.13, which provides as follows:
No person who is the owner, lessee, or occupant, or who has
custody, control, or supervision, of premises or real estate * * * shall
knowingly permit the premises or real estate * * * to be used for the
commission of a felony drug abuse offense by another person.
{¶31} Carson argues that the Sixth District’s decision in Toledo v. Warnka, 6th
Dist. Lucas No. L-08-1231, 2009-Ohio-2941, is directly on point and urges this court to
follow it. In Warnka, the Sixth District reversed the defendant’s conviction of
permitting drug abuse, finding that the city failed to present sufficient evidence to allow
for a reasonable inference that defendant knew of felony cocaine abuse in her home.
Upon executing the search warrant, the police discovered several glass marijuana pipes
on the first floor and basement of the house. The police further discovered a “Test
Clear” urine test in the dining room, which, according to the officer, is used to avoid
testing positive for illegal substances. As for evidence of felony drug abuse, the police
found cocaine in the upstairs bedroom shared by the defendant’s adult daughter and the
daughter’s boyfriend. In reversing the defendant’s conviction, the court reasoned as
follows:
The only evidence of drug use discovered in the common areas of
the home were marijuana pipes and a urine cleansing tool. While this evidence might allow the court to infer that appellant knew there was
marijuana drug abuse occurring in her home, we find that this evidence
does not provide a reasonable basis for a rational trier of fact to infer that
appellant knew of cocaine abuse in her home. This distinction is
significant because marijuana abuse is a misdemeanor offense and, thus,
would not provide a basis for establishing that appellant permitted a felony
drug abuse.
***
In this case, however, the police officers searching appellant’s home
only discovered the evidence of felony drug abuse in the room of
appellant’s daughter, Sierra, who was an adult woman cohabitating with her
boyfriend. There was no evidence that appellant ever entered the room,
despite the fact she was in control of the premises. Moreover, absent any
evidence showing otherwise, and under the circumstances in this case, we
find that it is unreasonable to infer that appellant would have entered the
bedroom inhabited by her adult daughter and her daughter’s boyfriend, or
investigated the contents therein.
Id. at ¶ 18-19.
{¶32} We find the facts of this case distinguishable. This is not a case where the
evidence of felony drug abuse was hidden in an adult daughter’s bedroom. Here, in
addition to the obvious marijuana paraphernalia that was in plain view in the dining room, Officer Hermensky further identified evidence of cocaine abuse in the dining room.
Specifically, Officer Hermensky identified the ceramic plate with cocaine and a
razorblade in the glass cabinet in the dining room, as well as a digital scale with cocaine
residue on the mantel. According to Officer Hermensky, these items were in plain view.
And while the glass door may have slightly concealed the ceramic plate with cocaine,
the digital scale was discovered on top of the mantel over the fireplace — out in the open.
The evidence further revealed that Carson admitted to smoking marijuana earlier in the
day before the officers’ arrival. Given that the evidence of cocaine was discovered in a
common room of the house nearby the marijuana and marijuana-related paraphernalia, we
find that a reasonable inference could be drawn that Carson had knowledge of the cocaine
abuse.
{¶33} The final assignment of error is overruled.
{¶34} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cleveland
Municipal Court to carry this judgment into execution. The defendant’s conviction
having been affirmed, any bail pending appeal is terminated. Case remanded to the trial
court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. MARY J. BOYLE, ADMINISTRATIVE JUDGE
SEAN C. GALLAGHER, J., and EILEEN T. GALLAGHER, J., CONCUR