State v. Ben

925 N.E.2d 1045, 185 Ohio App. 3d 832
CourtOhio Court of Appeals
DecidedJanuary 28, 2010
DocketNo. 92129
StatusPublished
Cited by2 cases

This text of 925 N.E.2d 1045 (State v. Ben) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Ben, 925 N.E.2d 1045, 185 Ohio App. 3d 832 (Ohio Ct. App. 2010).

Opinion

Frank D. Celebrezze Jr., Judge.

{¶ 1} Appellant, Bella Ben, appeals his conviction for drug trafficking and possession, based on “other acts” evidence he claims was impermissibly admitted at trial. He also takes issue with the length of sentence imposed. After a thorough review of the record, and for the following reasons, we reverse appellant’s conviction and forfeiture and remand for a new trial.

[835]*835{¶ 2} Cleveland police officers began an investigation of Brian Jarabek, a known marijuana dealer. Cleveland police detective John Pitts testified that he received a tip that Jarabek was in town and had resumed selling marijuana. After an investigation, Pitts obtained a search warrant for Jarabek’s premises. Upon execution of the warrant, police officers discovered Jarabek and appellant seated on couches in the living room of Jarabek’s apartment with a tray of marijuana in front of them on the coffee table. Jarabek’s two-year-old daughter was between the coffee table and the television watching “Scarface.” After a search of the house, 473 pills of methylenedioxymethamphetamine (“MDMA” or “ecstasy”) were found in a kitchen cabinet, which was adjacent to the living room but separated by a hallway. Aso, 188 grams of powdered cocaine was found in an upstairs bedroom. Various tools for the preparation of drugs for sale were also discovered, including a digital scale with cocaine residue on it, small plastic bags, and a grinder with marijuana residue on it. Police also found $1,220 in appellant’s pocket.

{¶ 3} On March 13, 2008, appellant was indicted along with Jarabek on six counts, with only five pertaining to appellant. Counts 1 and 3 were for trafficking in MDMA and cocaine respectively, both with juvenile specifications that elevated these charges to first-degree felonies. Counts 2 and 4 were for possession of MDMA and cocaine respectively, both second-degree felonies. Count 6 was for possession of criminal tools, a fifth-degree felony.

{¶ 4} This was not the first time appellant had been at a location when police executed a search warrant. On two prior occasions, appellant was found in locations where police officers executed drug-related search warrants. Detective Jamal Ansari of the Cleveland Police Narcotics Unit testified that on May 7, 2003, he came across appellant when he executed a search warrant in an investigation of Danny Nida and James Ouk. Appellant and others were arrested, and police found between 300 and 400 pills of ecstasy.

{¶ 5} Detective John Gucik of the Lakewood Police Department testified that on May 25, 2004, his department executed a search warrant pursuant to an investigation of James Ouk. Appellant was present when the search was executed, and police found 67 pills of ecstasy and a large quantity of marijuana.

{¶ 6} In both of these prior instances, appellant was not the subject of the police investigations, nor was he known to police officers conducting the investigations.

{¶ 7} The state offered these other two incidents as other-acts evidence pursuant to Evid.R. 404(B). On August 5, 2008, prior to voir dire, the trial court held a hearing on the state’s notice of its intent to use other-acts evidence. The state argued that the evidence would be offered to show that it was “no mistake, no coincidence, * * * no accident * * * that [appellant] was at the scene because [836]*836he * * * is a drug dealer just like Brian Jarabek.” The trial court allowed the state to present evidence of these past instances when appellant was found at the same time and location where large amounts of MDMA were found, but issued a limiting instruction to the jury as follows:

{¶ 8} “Evidence was received about the commission of crimes other than the offenses with which the defendant is charged in this trial. That evidence was received only for a limited purpose. It was not received, and you may not consider it to prove the character of the defendant in order to show that he acted in conformity or accordance with that character.
{¶ 9} “If you find that the evidence of other crimes is true, and that the defendant committed them, you may consider that evidence only for the purpose of deciding whether [it] proves the absence of mistake or accident or the defendant’s motive, opportunity, intent or purpose, preparation, or plan to commit the offense charged in this trial; or knowledge of circumstances surrounding the offense charged in this trial, or the identity of the person who committed the offense in this trial. That evidence cannot be considered for any other purpose.”

{¶ 10} The jury, in their deliberations, asked the trial judge a few questions, including the following: “[There] was testimony that the defendant had been found twice before at locations where MDMA was found. Can we take that into consideration?” The court answered: “Yes, but only as specified in the ‘other acts’ instruction.”

{¶ 11} On August 8, 2008, the jury returned verdicts of guilty of trafficking in MDMA, a first-degree felony; guilty of possession of MDMA, a second-degree felony; and guilty of possession of criminal tools, a fifth-degree felony. The jury found appellant not guilty of trafficking in or possession of cocaine.

{¶ 12} At appellant’s sentencing hearing on August 8, 2008, the court ordered that he serve nine years in prison on Count 1, eight years on Count 2, and one year on Count 6, all to run concurrently. Appellant was also fined $20,000, ordered to forfeit the seized property, and informed of five years of postrelease control. Appellant then filed a notice of appeal.

Other-Acts Evidence

{¶ 13} On appeal, appellant claims first that “[t]he trial court’s error in permitting the admission of ‘other acts evidence’ was highly prejudicial to Appellant-Defendant with little or no probative value in contradiction to the principles set forth in Evid.R. 404 and in violation of Appellant’s right to due process of law, as guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 16 of the Ohio Constitution.”

[837]*837{¶ 14} “The admission of evidence lies within the broad discretion of a trial court, and a reviewing court should not disturb evidentiary decisions in the absence of an abuse of discretion that has created material prejudice.” State v. Noting, 98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88, at ¶ 43, citing State v. Issa (2001), 93 Ohio St.3d 49, 64, 752 N.E.2d 904. An abuse of discretion “implies that the court’s attitude is unreasonable, arbitrary or unconscionable.” State v. Adams (1980), 62 Ohio St.2d 151,157,16 O.O.3d 169, 404 N.E.2d 144.

{¶ 15} With regard to the admissibility of other-acts evidence, it is well established that “extrinsic acts may not be used to prove by inference that the accused acted in conformity with his other acts or that he has a propensity to act in such a manner. [State v. Smith (1990), 49 Ohio St.3d 137, 140, 551 N.E.2d 190]. Although Evid.R. 404(B) permits ‘other acts’ evidence for certain enumerated issues, ‘the standard for determining admissibility of such evidence is strict.’ State v. Broom

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Related

State v. Williams
2011 Ohio 5650 (Ohio Court of Appeals, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
925 N.E.2d 1045, 185 Ohio App. 3d 832, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ben-ohioctapp-2010.