State v. Chandler

2015 Ohio 396

• Court: Ohio Court of Appeals
• Decided: January 30, 2015
• Docket: L-13-1271
• Status: Published

Opinion

[Cite as State v. Chandler, 2015-Ohio-396.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

State of Ohio Court of Appeals Nos. L-13-1271

Appellee Trial Court Nos. CR0201202266 v.

Danny G. Chandler DECISION AND JUDGMENT

Appellant Decided: January 30, 2015

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and David F. Cooper, Assistant Prosecuting Attorney, for appellee.

Tim A. Dugan, for appellant.

YARBROUGH, P.J.

I. Introduction

{¶ 1} Appellant, Danny Chandler, appeals his conviction in the Lucas County

Court of Common Pleas, following a jury trial, of two counts of aggravated possession of

drugs and two counts of aggravated trafficking in drugs. We affirm. A. Facts and Procedural Background

{¶ 2} On August 3, 2012, the Lucas County Grand Jury indicted appellant on five

felony charges: (1) aggravated possession of drugs in violation of R.C. 2925.11(A) and

(C)(1)(c), a felony of the second degree; (2) aggravated trafficking in drugs in violation

of R.C. 2925.03(A)(2) and (C)(1)(d), a felony of the first degree; (3) aggravated

possession of drugs in violation of R.C. 2925.11(A) and (C)(1)(b), a felony of the third

degree; (4) aggravated trafficking in drugs in violation of R.C. 2925.03(A)(2) and

(C)(1)(c), a felony of the second degree, and (5) trafficking in marijuana in violation of

R.C. 2925.03(A)(2) and (C)(3)(b), a felony of the fourth degree.

{¶ 3} Appellant entered an initial plea of not guilty. Thereafter, he moved to

suppress all of the drug evidence seized by the police as the fruits of an unconstitutional

search and seizure. Following a hearing, the trial court denied appellant’s motion to

suppress, and the matter proceeded to a jury trial.

{¶ 4} The charges stemmed from events that occurred on April 24, 2012. The

testimony from the suppression hearing and trial revealed that on that day, Toledo Police

Detective Israel Garrett and four other detectives were returning from delivering a

warrant when they drove by the house at 346 Mettler in Toledo, Ohio. Garrett testified

that the house had been under surveillance recently for suspected drug activity. At the

time the detectives drove by, Garrett noticed a car parked on the grass near the house

with a person leaning into its passenger side window. Believing that a drug transaction

might be occurring, the detectives pulled into an alley nearby. The detectives, still

2. wearing their raid gear, exited their vehicle and approached the parked car from the rear.

By that time, the person who had been standing beside the car had left, but two people

remained inside the car. It was later discovered that appellant was in the driver’s seat,

and appellant’s cousin, Travis Williams, was in the passenger’s seat. Garrett testified that

as they approached the vehicle, he could smell a strong odor of marijuana. In addition,

he testified that as he got closer, he could see a baggie between appellant’s legs.

Therefore, the detectives ordered appellant and Williams out of the car. Garrett inspected

the baggie and found that it contained marijuana. A subsequent search of appellant and

the car revealed a second baggie of marijuana, two pills of ecstasy, a digital scale, and

$1,095.

{¶ 5} Garrett testified that after reading appellant his Miranda rights, he asked

appellant if he lived at 346 Mettler. Appellant replied that he did not live there, but that it

was his mother’s, Tina Chandler, house, and he would sometimes change clothes there.

With this information, Garrett approached the rear of the house, where Tina stayed, and

asked to speak with her. Garrett requested permission to search the location of the house

where appellant changed his clothes. Tina agreed to allow the search, but told the

detectives to come to the front of the house, where appellant’s room was. Notably, it

took several minutes for Tina to go to the front door to meet the detectives.

{¶ 6} Prior to beginning their search, Garrett had Tina sign a form consenting to

the search and waiving her right to require the detectives to obtain a search warrant. The

subsequent search of appellant’s room revealed a gun holster, ammunition, pill bottles

3. containing marijuana and ecstasy, sandwich baggies, and another digital scale. A

chemical analysis of the drugs revealed two different forms of ecstasy.1 One of those

forms matched the pills found in the vehicle. It was stipulated at trial that the amount of

the drugs exceeded the bulk amount.

{¶ 7} After appellant was arrested and booked into jail, he made a phone call to

the house at 346 Mettler that was recorded and played for the jury. In the call, appellant

asked what the police got, and Tina replied that they got the gun magazine, and “they

didn’t get, all they got was the x. I didn’t know where it was.”

{¶ 8} Appellant then asked to speak with Kenneth Fulce, aka “Cush.” Appellant

told Fulce, “Remember where I told you where the cash at, * * * get everything out that

motherf***er.” Fulce later asked appellant if he should accompany appellant’s friend,

Ashley Leavell, to work, talking about “the burgers and donuts.” In an apparent

miscommunication, appellant says Fulce should be with her for the paper; that Fulce and

Leavell are in control of appellant’s paper. Fulce replies, “but we ain’t got your phone.”

Exasperated, and realizing the miscommunication, appellant said, “No, I’m not talking

about that. That s**t, man, don’t worry about that.” Following the playing of the call,

Garrett testified that “paper” is another term for cash. He also testified that the burgers

and donuts comment referred to drugs, and that the phone was important because that is

how customers would contact the dealer to buy their drugs.

1 One form was benzylphiperazine, and the other was 5-Meo-DIPT. The two different drug compositions formed the basis for the two separate pairs of aggravated possession and trafficking charges.

4. {¶ 9} Appellant next spoke with Leavell. Leavell informed him that she was the

one that hid appellant’s bag, and she is the only one who knows where the bag is.

Appellant told her to “get that s**t to your granny’s.” They then discussed who had keys

to the house, and appellant put Leavell in charge of gathering the keys and making sure

that no one had access to appellant’s room.

{¶ 10} Appellant, as his defense, presented witnesses to establish that he did not

live at 346 Mettler, that many people had access to that house and to the area where the

drugs were found, and that it was Tina’s ex-husband, Michael Crocket, who was the one

dealing drugs.

{¶ 11} Appellant’s first witness, Alfreda Brown, testified that appellant lived with

her, and that he left her residence on April 24, 2012, to go check in on his mother, who

had health issues, and to wash his car.

{¶ 12} Appellant next called his sister, Marquelle Chandler, who testified that she

was a certified state tested nurse’s assistant, and that she worked as a home health aid for

their mother. Marquelle stated that on the morning of April 24, 2012, Crocket was in the

home at 346 Mettler. Marquelle observed that Crocket was on the phone, pacing around

with a white pill bottle in his hand. She testified that Crocket took the pill bottle into the

room that the police eventually searched. Regarding access to the house, Marquelle

testified that approximately five or six people had keys to the house, including appellant,

Crocket, and Fulce.

5. {¶ 13} Travis Williams, the other person in the car with appellant, testified next.

Williams stated that he saw Crocket approach appellant as appellant was washing his car.

Williams testified that appellant purchased a bag of marijuana from Crocket. Appellant

had Williams roll up a portion of the marijuana to smoke. Then, one of appellant’s

neighbors approached the car to compliment appellant on how clean the car was and to

inquire if the car was as clean on the inside as it was on the outside. Williams stated that

the police arrived shortly after appellant’s neighbor left.

{¶ 14} Finally, appellant took the stand in his own defense. He testified that he

went over to his mother’s house on April 24, 2012, to wash his car and to buy marijuana

and ecstasy from Crocket. He stated that he purchased the drugs for his personal use, not

to sell. Appellant testified that after he purchased the drugs, he was in his car when his

neighbor came up to the side of the vehicle. The neighbor complimented appellant on the

vehicle and left. Appellant reaffirmed that no drug transaction took place at that time. It

was then that the police arrived and found the drugs and money. Regarding the cash,

appellant testified that part of the money was for his daughter’s tuition to a Catholic high

school. He further commented that he was not working at the time, but had recently

worked for a friend watching over vacant homes, and the money came from the payments

for that work.

{¶ 15} Appellant next testified about the phone call from the jail. He explained

that he asked his mother what the police found because he knew he only had the

marijuana and two ecstasy pills on him, and he wondered why he was facing so many

6. drug charges. He also explained that the burgers and donuts dialogue referred to

Leavell’s employment at McDonalds and Duncan Donuts, and the need to get cash to pay

his bond and hire an attorney.

{¶ 16} Following the presentation of evidence, closing arguments, and jury

instructions, the jury deliberated and returned a verdict of guilty as to the two aggravated

possession and two aggravated trafficking charges,2 and a verdict of not guilty to the

trafficking in marijuana charge. At sentencing, the trial court ordered appellant to serve

three years in prison on the charges of aggravated possession and trafficking in

benzylphiperazine, and two years in prison on the charges of aggravated possession and

trafficking in 5-Meo-DIPT. The court ordered all four sentences to be served

concurrently for a total prison term of three years.

B. Assignments of Error

{¶ 17} Appellant has timely appealed his conviction, asserting three assignments

of error for our review:

1) The State of Ohio failed to provide legally sufficient evidence

that Appellant knowingly possessed and knowingly trafficked drugs.

2) Appellant’s convictions fell against the manifest weight of the

evidence.

2 The two aggravated trafficking charges were reduced to second and third-degree felonies from first and second-degree felonies, respectively, because the jury did not find the enhancing element that the crimes were committed within the presence of a juvenile as alleged in the indictment.

7. 3) The Trial Court erred in not granting Appellant’s motion to

suppress evidence as the result of an illegal search and seizure.

II. Analysis

{¶ 18} For ease of discussion, we will address appellant’s assignments of error out

of order, beginning with his third assignment of error.

A. Motion to Suppress

{¶ 19} In his third assignment of error, appellant argues that the drug evidence

seized from his car and from 346 Mettler should have been suppressed as the fruits of an

unconstitutional search and seizure.

{¶ 20} Appellate review of a decision on a motion to suppress presents a mixed

question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797

N.E.2d 71, ¶ 8. “When considering a motion to suppress, the trial court assumes the role

of trier of fact and is therefore in the best position to resolve factual questions and

evaluate the credibility of witnesses.” Id., citing State v. Mills, 62 Ohio St.3d 357, 366,

582 N.E.2d 972 (1992). “[A]n appellate court must accept the trial court’s findings of

fact if they are supported by competent, credible evidence.” Id., citing State v. Fanning,

1 Ohio St.3d 19, 437 N.E.2d 583 (1982). “[T]he appellate court must then independently

determine, without deference to the conclusion of the trial court, whether the facts satisfy

the applicable legal standard.” Id., citing State v. McNamara, 124 Ohio App.3d 706, 707

N.E.2d 539 (4th Dist.1997).

8. {¶ 21} The facts in this case with regard to the motion to suppress are not in

dispute. Rather, appellant argues that the initial detention of his vehicle was not

supported by reasonable suspicion or probable cause. He contends that no traffic

violation had been committed, and that there were no additional, specific, and articulable

facts that would have reasonably led the detectives to believe that he was involved in

criminal activity. The state, on the other hand, argues that the stop was warranted by the

location of the car in a suspected drug area, the presence of a person leaning into the

vehicle, and the fact that the car was parked illegally in the grass in violation of Toledo

Municipal Code 351.07(a)(29).3

{¶ 22} “[A] police officer may stop and investigate unusual behavior, even

without probable cause to arrest, when he reasonably concludes that the individual is

engaged in criminal activity.” State v. Andrews, 57 Ohio St.3d 86, 87, 565 N.E.2d 1271

(1991). “In assessing that conclusion, the officer ‘must be able to point to specific and

articulable facts which, taken together with rational inferences from those facts,

reasonably warrant that intrusion.’” Id., quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct.

1868, 20 L.Ed.2d 889 (1968).

{¶ 23} Here, Garrett testified that he observed a parked vehicle in an area that was

under surveillance for suspected drug activity, that he observed a person leaning into the

vehicle, that the person had left by the time the detectives approached, and that he

3 Toledo Municipal Code 351.07(a)(29) provides, in relevant part, “No person, in any of the following places where signs are not required, shall: * * * (29) Stand or park a vehicle in the area between the pavement edge and property line on any curbed street or highway inside a business or residence district.”

9. smelled a strong odor of marijuana as he came near to the vehicle. Based on these facts,

we hold that the detectives had reasonable suspicion to initiate an investigatory stop of

appellant. See State v. Johnson, 2d Dist. Montgomery No. 19203, 2002-Ohio-4684, ¶ 38

(investigatory stop justified where officer believed drug transaction to be in progress

where defendant was with a known drug trafficker in an area known for drug

transactions, and a person leaned with both arms into defendant’s car window, and the

individual left when the officer approached); State v. Dotson, 9th Dist. Summit No.

19053, 1998 WL 852573, *3 (Dec. 9, 1998) (investigatory stop proper where defendant

stopped her car in an area known for drug activity, a man leaned in the passenger side of

the car, and the two dispersed when they saw the police officers).

{¶ 24} Alternatively, the investigatory stop was justified based on appellant’s

violation of the Toledo Municipal Code. See Dayton v. Erickson, 76 Ohio St.3d 3, 11-12,

665 N.E.2d 1091 (1996) (“[W]here an officer has an articulable reasonable suspicion or

probable cause to stop a motorist for any criminal violation, including a minor traffic

violation, the stop is constitutionally valid regardless of the officer’s underlying

subjective intent or motivation for stopping the vehicle in question.”).

{¶ 25} Further, once Garrett observed the baggie between appellant’s legs, and the

baggie was found to contain marijuana, Garrett had probable cause to arrest appellant.

The subsequent search of the passenger compartment of the vehicle was then justified as

a search incident to arrest. State v. Murrell, 94 Ohio St.3d 489, 496, 764 N.E.2d 986

(2002). Finally, we point out that the search of the house without a warrant was

10. permissible as it was conducted with Tina’s consent. See Schneckloth v. Bustamonte, 412

U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (“It is equally well settled that one

of the specifically established exceptions to the requirements of both a warrant and

probable cause is a search that is conducted pursuant to consent.”).

{¶ 26} Therefore, we find that the trial court did not err when it denied appellant’s

motion to suppress evidence as the result of an illegal search and seizure. Accordingly,

appellant’s third assignment of error is not well-taken.

B. Sufficiency of the Evidence

{¶ 27} In his first assignment of error, appellant challenges the sufficiency of the

evidence supporting his conviction. Specifically, he argues that the state failed to

produce sufficient evidence that he knowingly possessed the drugs.

{¶ 28} “In essence, sufficiency is a test of adequacy. Whether the evidence is

legally sufficient to sustain a verdict is a question of law.” State v. Thompkins, 78 Ohio

St.3d 380, 386, 678 N.E.2d 541 (1997). “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. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

{¶ 29} Appellant was convicted under R.C. 2925.11(A), which provides, “No

person shall knowingly obtain, possess, or use a controlled substance or a controlled

substance analog.” Under the Revised Code, “possess” means “having control over a

11. 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.” R.C. 2925.01(K).

{¶ 30} Appellant argues that there is no evidence of knowing possession of the

drugs because Garrett had never seen appellant at the property, there was no evidence

that appellant’s belongings were found in the searched room, and there was no testimony

regarding where in the room the drugs were found. We disagree.

{¶ 31} Garrett testified that Tina took the detectives to the room where appellant

kept his belongings. The drugs were discovered in that room, and a chemical analysis

showed that the drugs matched the pills appellant had with him in his vehicle. Further,

the recorded phone call from jail evidenced that appellant exerted control over the drugs,

as he was the one to order Fulce and Leavell to get the money and the bags out of the

house. From this, we conclude that a rational trier of fact could have found beyond a

reasonable doubt that appellant knowingly possessed the drugs.

{¶ 32} Appellant also contends that there was no evidence presented to show that

he knowingly prepared the drugs for sale. Pursuant to R.C. 2925.03(A)(2), no person

shall knowingly “[p]repare for shipment, ship, transport, deliver, prepare for distribution,

or distribute a controlled substance or a controlled substance analog, when the offender

knows or has reasonable cause to believe that the controlled substance or a controlled

substance analog is intended for sale or resale by the offender or another person.” Here,

the search of the room revealed a large quantity of ecstasy, as well as baggies and a

12. digital scale. Further, the search of appellant and his vehicle revealed another digital

scale and a large amount of cash. We hold that a rational trier of fact, when viewing this

evidence in a light most favorable to the prosecution, could find beyond a reasonable

doubt that appellant was trafficking in drugs.

{¶ 33} Accordingly, appellant’s first assignment of error is not well-taken.

C. Manifest Weight

{¶ 34} Finally, in his second assignment of error, appellant argues that his

convictions are against the manifest weight of the evidence. Appellant contends that the

evidence shows that multiple people had access to that room. Moreover, appellant

testified that one of those people, Crocket, had sold drugs to appellant. Appellant

concludes that when considering such evidence, his convictions must be overturned.

{¶ 35} When reviewing a manifest weight claim, the appellate court sits as a

“thirteenth juror” and, “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.” State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 220.

“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.

{¶ 36} Upon our careful consideration of the entire record, we do not find that this

is the exceptional case warranting a reversal and new trial. Appellant was found with

13. marijuana and ecstasy in his vehicle, along with a large amount of cash and a digital

scale. When the police asked to search the area of 346 Mettler where appellant kept his

belongings, Tina took them to the front room where the drugs, baggies, and scale were

found. In the phone call from the jail, Tina implied that she hid other things, but was

unable to hide the ecstasy because she could not find it. Appellant then gave directions to

Fulce and Leavell regarding what to do next with the money and the contents of the other

bag. From this, we conclude that the jury did not clearly lose its way or create a manifest

miscarriage of justice when it found appellant guilty of aggravated possession and

trafficking of drugs.

{¶ 37} Accordingly, appellant’s second assignment of error is not well-taken.

III. Conclusion

{¶ 38} For the foregoing reasons, the judgment of the Lucas County Court of

Common Pleas is affirmed. Costs of this appeal are assessed to appellant pursuant to

App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. _______________________________ JUDGE Thomas J. Osowik, J. _______________________________ Stephen A. Yarbrough, P.J. JUDGE CONCUR. _______________________________ JUDGE

14. This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.

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