State v. Edwards

2021 Ohio 1917

• Court: Ohio Court of Appeals
• Decided: June 3, 2021
• Docket: 2020 CA 00149
• Status: Published

Opinion

[Cite as State v. Edwards, 2021-Ohio-1917.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. Craig R. Baldwin, P. J. Plaintiff-Appellee Hon. W. Scott Gwin, J. Hon. John W. Wise, J. -vs- Case No. 2020 CA 00149 JC SADAT TAYLOR EDWARDS

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 2019 CR 02371B

JUDGMENT: Affirmed in Part; Reversed in Part and Remanded

DATE OF JUDGMENT ENTRY: June 3, 2021

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KYLE L. STONE BERNARD L. HUNT PROSECUTING ATTORNEY 2395 McGinty Road, NW LON'CHERIE' D. BILLINGSLEY North Canton, Ohio 44720 ASSISTANT PROSECUTOR 110 Central Plaza South, Suite 510 Canton, Ohio 44702-1413 Stark County, Case No. 2020 CA 00149 2

Wise, J.

{¶1} Appellant J.C. Sadat Taylor Edwards appeals the judgment entered by the

Stark County Court of Common Pleas convicting him of three counts of Aggravated

Possession of Drugs in violation of R.C. 2925.11(A)(C)(1)(d), one count of Theft of Drugs

in violation of R.C. 2913.02(A)(1)(B)(6), one count of Breaking and Entering in violation

of R.C. 2911.13(A)(C), and one count Possession of Drugs in violation of R.C.

2925.11(A)(C)(2)(b). Appellee is the State of Ohio. The relevant facts leading to this

appeal are as follows.

STATEMENT OF THE FACTS AND CASE

{¶2} On January 7, 2020, the Stark County Grand Jury indicted Appellant for

Aggravated Possession of Drugs in violation of R.C. 2925.11(A)(C)(1)(D), Theft of Drugs

in violation of R.C. 2913.02(A)(1)(B)(6), Breaking and Entering in violation of R.C.

2911.13(A)(C), Possession of Drugs in violation of R.C. 2925.11(A)(C)(5)(A), Aggravated

Possession of Drugs in violation of R.C. 2925.11(A)(C)(1)(C), Aggravated Possession of

Drugs in violation of R.C. 2925.11(A)(C)(2)(B).

{¶3} On January 10, 2020, Appellant entered a plea of not guilty.

{¶4} On August 25, 2020, Appellee filed a Motion to Amend the Indictment.

{¶5} On August 26, 2020, the trial court filed a Judgment Entry amending the Bill

of Particulars.

{¶6} On August 26, 2020, a jury trial commenced.

{¶7} At trial the State called Officer Jacob Miller to testify. Officer Miller testified

that on November 23, 2019, he responded to a call to Medicap Pharmacy on Lincoln Way

in Massillon, Ohio, Stark County. Multiple alarms had been activated at the pharmacy. Stark County, Case No. 2020 CA 00149 3

Upon arriving he noticed the glass of the door had been broken, and they could hear the

alarm going off. While heading to the front of the building they heard tires squealing and

saw a vehicle peel out while leaving the business.

{¶8} Officer Miller followed the vehicle as it made an abrupt turn. When the

vehicle came to a dead end, it stopped and Officer Miller observed three males exit the

vehicle and flee on foot. Officer Miller gave chase to Appellant.

{¶9} While being chased, Appellant fell and broke his ankle. At this time Officer

Miller placed Appellant in custody.

{¶10} Officer Miller then returned to the vehicle and began to search the vehicle.

Inside the vehicle, Officer Miller found a pharmaceutical bottle of pills from Medicap

Pharmacy, a crowbar, and multiple cell phones inside the vehicle.

{¶11} Next, the State called Officer Nathan Rosenberg to testify. Officer

Rosenberg testified that as he was following Officer Miller during the foot pursuit of

Appellant, Officer Rosenberg discovered a red backpack. The backpack was found less

than 100 feet from where Officer Miller apprehended Appellant.

{¶12} Inside the backpack were pharmaceutical drugs, both pill and liquid, from

Medicap Pharmacy. While searching the area after Appellant was apprehended, Officer

Rosenberg also found a pair of gloves near where Appellant had been arrested.

{¶13} The State also called Kristine Kingsbury to testify. Kingsbury testified she is

the owner of Medicap Pharmacy in Massillon, Ohio. Kingsbury testified Promethazine

with codeine, clonazepam, oxycodone with acetaminophen, percocet, Endocet and

Ascomp with codeine were all stolen from the pharmacy. Stark County, Case No. 2020 CA 00149 4

{¶14} Under cross examination Kingsbury testified the bottles recovered by police

were all stolen from her store except for one, a bottle of ibuprofen. The bottle of ibuprofen

was from Kroger pharmacy and had the name Allison Roach on it.

{¶15} Next, the State called Allison Roach to testify. Roach testified she was

involved in the incident on November 23, 2019. She disclosed she agreed to testify at the

trial in return for a plea to a lesser charge.

{¶16} Roach testified that she knew Appellant through a mutual friend. She

testified the relationship was mainly for drugs, and she knew that he could get her drugs.

She was addicted to opiates at the time.

{¶17} Roach testified that she picked Appellant and a friend, Mike, up in Columbus

to drive up to Massillon to get drugs. Mike, identified as Michael Nigro, brought a red

backpack with him when they left Columbus. Upon arriving in Massillon, they went to

another man’s, Tony’s, house and waited awhile before heading to the neighborhood

where the pharmacy was. Tony was identified as Anthony Scipione. Mike left the red

backpack in the car when they went to pick up Tony.

{¶18} Roach then drove Appellant and two other men to the neighborhood where

the incident took place. They all left the car and were gone three to four minutes. Upon

returning one of the men told Roach to get into the passenger seat, and they hurried into

the car and pealed out. Roach said the man turned down a dead-end road, put the car in

park, and then all the men fled. Roach stayed in the passenger seat until arrested by

officers. Stark County, Case No. 2020 CA 00149 5

{¶19} Next, the State called criminologist Alexis Gram to testify. Gram testified the

pills recovered during the arrest and investigation contained different concentrations of

oxycodone.

{¶20} The State then called Detective Shaun Dadisman to testify. Detective

Dadisman testified that during the investigation he received a dump on two of the phones

and was able to access Appellant’s text and voice messages. On the night of the incident,

Appellant texted an individual named Andy. In the text message, Appellant tells Andy he

is about to hit a pharmacy. Detective Dadisman determined Appellant had planned to rob

the pharmacy that evening. Detective Dadisman spoke with Appellant for an interview.

{¶21} Detective Dadisman testified that while in jail Appellant made several jail

calls. Those calls are recorded and logged under his name. The prosecution introduced

the jail calls made by Appellant. Appellant objected to the introduction of these jail calls,

as the custodian of the business records was not called to authenticate the records.

Therefore, these calls were hearsay without an exception. The trial court overruled the

objection because Detective Dadisman had spoken with Appellant during an interview

and identified the voice on the jail calls as Appellant’s voice.

{¶22} Detective Dadisman testified that on the jail calls, Appellant said that they

were going to break into a location. In a call to a person referred to as Rico, Appellant told

Rico to get the female involved in the incident stop and not to talk. Appellant also said

that there were four people involved in the incident and not three because of the female

who accompanied them. Stark County, Case No. 2020 CA 00149 6

{¶23} Detective Dadisman also testified that when speaking to a resident near the

pharmacy, the resident offered video which showed three individuals enter the pharmacy

and quickly exit around the time of the break in.

{¶24} The State then rested its case.

{¶25} Appellant motioned for acquittal under Criminal Rule 29. The trial court

overruled Appellant’s motion. Appellant rested its case without calling a witness.

{¶26} On August 26, 2020, a jury found Appellant guilty of the crimes: one count

of Aggravated Possession of Drugs in violation of R.C. 2925.11(A)(C)(1)(d), two counts

Aggravated Possession of Drugs in violation of R.C. 2925.11(A)(C)(1)(c), one count of

Theft of Drugs in violation of R.C. 2913.02(A)(1)(B)(6), one count of Breaking and

Entering in violation of R.C. 2911.13(A)(C), and one count of Possession of Drugs in

violation of R.C. 2925.11(A)(C)(2)(b).

{¶27} On September 1, 2020, the trial court held a Sentencing Hearing. At the

hearing the trial court sentenced Appellant to serve an indefinite minimum prison term of

seven years to a maximum prison term of ten and a half years on Count 1, Aggravated

Possession of Drugs in violation of R.C. 2925.11(A)(C)(1)(d), a prison term of twelve

months on Count 2, Theft of Drugs in violation of R.C. 2913.02(A)(1)(B)(6), a prison term

of twelve months on Count 3, Breaking and Entering in violation of R.C. 2911.13(A)(C),

an indefinite mandatory minimum prison term of two years up to a maximum of three

years on Count 5 and Count 6, two counts of Aggravated Possession of Drugs in violation

of R.C. 2911.11(A)(C)(1)(c), and a prison term of twelve months on Count 4, Possession

of Drugs in violation of R.C. 2925.11(A)(C)(2)(b). The prison term for Count 3 is to be

served consecutively to Count 1, and all other terms are to be served concurrent for an Stark County, Case No. 2020 CA 00149 7

aggregated mandatory minimum prison term of eight years up to a maximum prison term

of ten and a half years.

ASSIGNMENTS OF ERROR

{¶28} On October 16, 2020, Appellant filed a notice of appeal. He herein raises

the following three Assignments of Error:

{¶29} “I. THE TRIAL COURT COMMITED (SIC) PREDJUCIAL (SIC) ERROR

WHEN IT DENIED APPELLANT’S MOTION TO MERGE THE MULTIPLE COUNTS OF

AGGRAVATED POSSESSION OF DRUGS IN COUNTS ONE (SIC) FIVE AND SIX, AS

ALLIED OFFENSES OF SIMILAR IMPORT, IN VIOLATION OF O.R.C. 2941.25(A).

{¶30} “II. THE TRIAL COURT ERRED IN FAILING TO SENTENCE COUNTS

ONE, FIVE AND SIX CONCURRENTLY.

{¶31} “III. THE TRIAL COURT ERRED WHEN IT ADMITTED EVIDENCE

WITHOUT AUTHENTICATION OR IDENTIFICATION AS A CONDITION PRECEDENT

TO ADMISSABILITY (SIC), REQUIRED BY EVIDENCE RULE 901(A).”

{¶32} For the purpose of judicial economy, we will address Appellant’s

assignments of error out of order.

III.

{¶33} In Appellant’s Third Assignment of Error, Appellant argues the trial court

erred by admitting recorded jail calls without authentication. We disagree.

{¶34} “Ordinarily, a trial court is vested with broad discretion in determining the

admissibility of evidence in any particular case, so long as such discretion is exercised in

line with the rule of procedure and evidence.” Rigby v. Lake Cty, 58 Ohio St.3d 269, 271

(1991). The appellate court must limit its review of the trial court’s admission or exclusion Stark County, Case No. 2020 CA 00149 8

of evidence to whether the trial court abused its discretion. Id. The abuse of discretion

standard is more than an error of judgment; it implies the court ruled arbitrarily,

unreasonably, or unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983).

{¶35} Evid.R. 901 provides:

(A) General Provision. The requirement of authentication or

identification as a condition precedent to admissibility is satisfied by

evidence sufficient to support a finding that the matter in question is what

its proponent claims.

{¶36} The threshold for authenticating evidence is low. State v. Wiley, 2d Dist.

Darke No. 2011 CA 8, 2012-Ohio-512, ¶11. To be admissible, a tape recording must be

authentic, accurate, and trustworthy. State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762,

890 N.E.2d 263, ¶109, citing State v. Rogan, 94 Ohio App.3d 140, 148, 640 N.E.2d 535,

540 (2nd Dist.1994). There are two theories upon which sound recordings may be

admissible under Evid.R. 901. State v. Maurent, 5th Dist. Delaware No. 12 CAA 05 0055,

2013-Ohio-3799, ¶50, citing State v. Tyler, 4th Dist. Ross No. 10CA3183, 196 Ohio App.3d

443, 2011-Ohio-3937, 964 N.E.2d 12, ¶25-26. First, Evid.R. 901(B)(5) provides, “Voice

Identification. Identification of a voice, whether heard firsthand or through mechanical or

electrical transmission or recording, by opinion based upon hearing the voice at any time

under circumstances connecting it with the alleged speaker.” Second, Evid.R. 901(B)(9)

provides, “Process or system. Evidence describing a process or system used to produce

a result and showing that process or system produces an accurate result.” Therefore, “a

sound recording may be authenticated through evidence that demonstrates a process or

system used that produces an ‘accurate result.’ ” Maurent at ¶50. Stark County, Case No. 2020 CA 00149 9

{¶37} In Maurent, this Court found the trial court had sufficient foundational

evidence to admit a telephone recording. At trial Detective Riehle testified he listened to

original calls, created a recording of the call, and recognized defendant’s voice on the jail

call. Maurent at ¶51.

{¶38} In the case sub judice, Detective Dadisman testified he spoke with Appellant

during an attempted interview and was familiar with Appellant’s voice. Detective

Dadisman then listened to the jail call recordings, identified Appellant’s voice on the jail

calls, and testified as to the content of the conversation. The jail calls were properly

authenticated.

{¶39} Appellant’s Third Assignment of Error is overruled.

I.

{¶40} In Appellant’s First Assignment of Error, Appellant argued the trial court

committed prejudicial error when it failed to merge counts one, five, and six as allied

offenses of similar import. The State concedes this assignment of error in its brief. We

agree.

{¶41} “The first assignment of error should be sustained and remanded to the trial

court for the sole purpose of sentencing on Counts 1, 5, and 6.” Brief of Appellee,

December 11, 2009, page 6.

{¶42} R.C. 2941.25 states:

(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. Stark County, Case No. 2020 CA 00149 10

{¶43} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892,

syllabus, the Supreme Court of Ohio held:

1. In determining whether offenses are allied offenses of similar

import within the meaning of R.C. 2841.25, courts must evaluate three

separate victims or if the harm that results from each offense is separate

and identifiable.

2. Two or more offenses of dissimilar import exist within the

meaning of R.C. 2841.25(B) when the defendant’s conduct constitutes

offenses involving separate victims or if the harm that results from each

offense is separate and identifiable.

3. Under R.C. 2941.25(B), a defendant whose conduct supports

multiple offenses may be convicted of all offenses if any one of the

following is true: (1) the conduct constitutes offenses of dissimilar import,

(2) the conduct shows that the offenses were committed separately, or (3)

the conduct shows that the offenses were committed with separate animus.

{¶44} In paragraph 26 of the opinion, the Ruff court stated:

At its heart, the allied-offense analysis is dependent upon the facts

of a case because R.C. 2941.25 focuses on the defendant's conduct. The

evidence at trial or during a plea or sentencing hearing will reveal whether

the offenses have similar import. When a defendant's conduct victimizes

more than one person, the harm for each person is separate and distinct,

and therefore, the defendant can be convicted of multiple counts. Also, a

defendant's conduct that constitutes two or more offenses against a single Stark County, Case No. 2020 CA 00149 11

victim can support multiple convictions if the harm that results from each

offense is separate and identifiable from the harm of the other offense. We

therefore hold that two or more offenses of dissimilar import exist within the

meaning of R.C. 2941.25(B) when the defendant's conduct constitutes

offenses involving separate victims or if the harm that results from each

offense is separate and identifiable. Id.

{¶45} “[T]rafficking in a controlled substance under R.C. 2925.03(A)(2) and

possession of the same substance under R.C. 2925.11(A) are allied offenses of similar

import because commission of the first offense necessarily results in commission of the

second.” State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, ¶30.

Even though the Ohio Supreme Court’s decision in Ruff renders the rationale set forth in

Cabrales obsolete, the conclusion reached by the Ohio Supreme Court in Cabrales

survives the application of Ruff. State v. Bradley, 8th Dist. No. 102727, 2015-Ohio-5421,

55 N.E.3d 580, ¶42.

{¶46} In the case sub judice, the parties agree that the trial court erred by imposing

multiple sentences on allied possession of drugs offenses and allied trafficking in drugs

offenses in violation of R.C. 2941.25 and the state and federal constitutional protections

against double jeopardy. The State of Ohio concedes these are allied offenses of similar

import and should have been merged.

{¶47} Appellant’s First Assignment of Error is, therefore, sustained.

II.

{¶48} In his Second Assignment of Error, Appellant claims the trial court illegally

sentenced him to consecutive sentences for counts one, five, and six. Given the fact that Stark County, Case No. 2020 CA 00149 12

the matter is remanded to the trial court for resentencing, we find this assignment to be

premature.

{¶49} Appellant’s Second Assignment of Error is overruled.

{¶50} For the foregoing reasons, the judgment of the Court of Common Pleas of

Stark County, Ohio, is hereby affirmed in part and reversed in part. The sentence is

vacated and the matter is remanded to the trial court for rehearing on the issue of merging

allied offenses of similar import.

By: Wise, J.

Baldwin, P. J., and

Gwin, J., concur.

JWW/br 0602