State v. Allen

941 N.E.2d 824, 190 Ohio App. 3d 240
Procedural entryThis page is a short order in State v. Allen. Read the opinion of the Court — 2012 Ohio 1831
Ohio Court of Appeals·Decided August 26, 2010·No. No. 93372·Published

Opinion

Mary J. Boyle, Judge.

{¶ 1} Defendant-appellant, Aaron Allen, appeals his convictions and sentence. He raises three assignment of error for our review:

{¶ 2} “[1.] Prosecutorial misconduct deprived appellant of his constitutionally guaranteed right to a fair trial, in violation of the Fifth and Fourteenth Amendments, to the United States Constitution and Section 10, Article I of the Ohio Constitution.

[244]*244{¶ 3} “[2.] Appellant’s conviction is against the manifest weight of the evidence.

{¶ 4} “[3.] The trial court erred in merging appellant’s sentences for possessing, transporting, and selling a single quantity of crack cocaine in violation of the provisions within R.C. 2941.25, the protections of the Double Jeopardy Clause of the Fifth Amendment to the Constitution of the United States and Section 10, Article I of the Ohio Constitution.”

{¶ 5} Finding merit to Allen’s third assignment of error, we affirm in part, reverse in part, and remand for resentencing.

Procedural History and Factual Background

{¶ 6} The grand jury indicted Allen on one count of drug trafficking in violation of R.C. 2925.03(A)(1), one count of drug trafficking in violation of R.C. 2925.03(A)(2), one count of drug possession in violation of R.C. 2925.11(A), and one count of possession of criminal tools in violation of R.C. 2923.24(A). The drug-trafficking and drug-possession charges also had major-drug-offender specifications attached. The case proceeded to a jury trial, where the following evidence was presented.

{¶ 7} Detective Scott Moran testified that he learned from Detective James Cudo that a “confidential reliable informant” was going to purchase an eighth of a kilogram of crack cocaine from a man named “Boobie” or “Aaron.” Detective Moran further learned from Detective Cudo that the suspect would be wearing “a black hooded sweatshirt with lettering on the front and blue jeans, and he was a male approximately six foot tall.”

{¶ 8} Detective Moran’s role in the investigation was “surveillance for the transaction,” which took place at Sbanos bar located at 7017 Superior Avenue. From his position east of the bar, Detective Moran observed a male wearing a black, hooded sweatshirt with white lettering and matching the suspect’s description come out of the bar, talk on his cell phone, and then go back inside the bar. Approximately 20 minutes later, a black Chevy Tahoe arrived. The suspect came out of the bar and entered the passenger side of the Tahoe. A few minutes later, the suspect got out of the Tahoe and went inside the bar. The Tahoe then left the bar.

{¶ 9} Detective Leland Edwards followed the Tahoe. He explained that the Tahoe stopped at a house and a male got out of the driver’s side and went in the house. A short time later, the man came back out, got into the Tahoe, and drove away. Detective Edwards said that he recognized the driver as Jermaine Bridges because he had a previous experience with him selling crack cocaine.

[245]*245{¶ 10} Detective Moran saw the Tahoe return to the bar approximately 25 minutes later. The suspect came out of Sbanos again, went to the driver’s side of the Tahoe, stood there briefly, and then went back inside the bar. A short time after that, Detective Moran learned from Detective Cudo that the drug buy had been completed.

{¶ 11} Detective Cudo later ran a global alias search on the name of “Boobie” and obtained Allen’s name from the search. He then obtained Allen’s photo from the Ohio Bureau of Motor Vehicles. He showed Allen’s photo to Detective Moran, who identified Allen as the male he had seen going in and out of the bar.

{¶ 12} The confidential informant, Sumara, testified to several past felony convictions, including theft and passing bad checks. She stated that she had purchased Sbanos in September 2007; Carlton Story was her business partner at that time. Due to the high-crime area, she hired three Cleveland police officers to work security for her. She also set up 32 cameras inside and outside the bar.

{¶ 13} She explained that she first met Allen in 2007, when she opened the bar. He ran the upstairs bar and paid her rent to do so. She further stated that Allen’s cousins, who are referred to as “the twins,” “work with [Allen] up in the club.”

{¶ 14} Sumara became a confidential informant when one of the security officers introduced her to Detective Cudo. Sumara testified that she asked Allen, who also went by the name of “Boobie,” if she could buy drugs from him. He told her that she could and asked her what she needed. She told him that she needed “an eighth” of crack. Before the transaction, Sumara met with Detective Cudo, who placed a wire on her, gave her $3,600 of buy money, and instructed her on what to do.

{¶ 15} Sumara stated that the transaction took place in her private office, which is equipped with a video camera. She explained that at first Allen brought her only “a small amount of crack cocaine and * * * [she] knew from the amount of money that [she] had, which was $3600, the small package that he had given [her] didn’t add up.” Sumara then told Allen that she wanted “an eighth, a big one,” and “he went and got it for [her].” After the transaction was complete, Sumara went directly to Detective Cudo to give him the drugs, the wire, and the remaining $100 because Allen only charged her $3,500 for the drugs.

{¶ 16} The state played the video, which had no sound, to the jury, and then played the audio. Sumara explained events as they unfolded on each device. She explained that the video showed two people walking into her office; she identified the two people as herself and “Aaron” or “Boobie.” The video shows that the male was wearing a black, hooded sweatshirt with writing on the front. She then identified Allen in court as the man in the video and the man known as [246]*246“Boobie.” The video then shows her taking a scale out of her desk, and then the man leaves. Sumara said that was because she realized that he had brought her the wrong amount of cocaine. The man later returns to her office, she weighs the drugs, gives him the money, he counts it, and then he leaves.

{¶ 17} Sumara then described events that occurred on the audio while the recording was played to the jury. At one point, Sumara received a call from Detective Cudo. She told him that Allen was wearing a black “hoodie” with some writing on it and blue jeans, and she described him as a very dark man who was tall and very slender.

{¶ 18} The two separate times that Allen came into Sumara’s office, first with the wrong amount of drugs and then with the correct amount, can be clearly heard on the audio as Sumara described, although she does not say his name.1 When he brought her the correct amount of cocaine the second time, Sumara is on the phone with someone as he walked into her office. She states to the person on the phone: “Let me talk to the twin, he just came into the office.” Sumara explained that it was actually Allen who had come into her office, not “the twin.” When asked why she said “the twin,” she stated: “Because we had a discrepancy in the club the night before. So I wanted to talk to the twin, but also wanted to talk to Aaron also to find out what had went on the night before.” Later, a loud knock is heard at the door; it was Carlton.

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State v. Allen, 941 N.E.2d 824, 190 Ohio App. 3d 240 (Ohio Ct. App. 2010).

941 N.E.2d 824 (State v. Allen) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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