State v. Kalman

2016 Ohio 5013

Opinion

[Cite as State v. Kalman, 2016-Ohio-5013.]

COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. Sheila G. Farmer, P. J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. John W. Wise, J. -vs- Case No. 15 COA 041 MARK E. KALMAN

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 15 CRI 083

JUDGMENT: Affirmed in Part; Reversed in Part and Remanded

DATE OF JUDGMENT ENTRY: July 18, 2016

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CHRISTOPHER R. TUNNELL MATTHEW J. MALONE PROSECUTING ATTORNEY LAW OFFICES OF MATTHEW J. MALONE CHRISTOPHER E. BALLARD 10 East Main Street ASSISTANT PROSECUTOR Ashland, Ohio 44805 110 Cottage Street, Third Floor Ashland, Ohio 44805 Ashland County, Case No. 15 COA 041 2

Wise, J.

{¶1} Defendant-Appellant Mark E. Kalman appeals from his conviction on

several drug-related charges in the Court of Common Pleas, Ashland County. Appellee

is the State of Ohio. The relevant facts leading to this appeal are as follows:

{¶2} In the months leading up to early June 2015, law enforcement investigators

were tracking unusual purchases of pseudoephedrine by Appellant Kalman and his

girlfriend, Lorie McLaughlin, at a number of retail locations throughout northern Ohio.

Finally, on June 9, 2015, officers from the Ashland County Sheriff’s Office, Lorain County

Sheriff’s Office, and the Ohio Bureau of Criminal Investigation executed a search warrant

at 100 State Route 58 in Sullivan, Ohio. The officers suspected this address, primarily the

residence of appellant’s mother, Ruth Kalman, was also being used by appellant and his

seventeen-year-old son, B.K. The property in question included a house, a camper in the

back yard, and a beached boat with marihuana plants growing inside.

{¶3} Upon discovering items beyond the scope of the search warrant, the officers

obtained an expanded second warrant. The search resulted in, among other things,

marihuana plants, firearms, and supplies for the manufacture of methamphetamine and

hashish.

{¶4} On July 10, 2015, the Ashland County Grand Jury indicted appellant on two

counts of illegal manufacture of drugs (R.C. 2925.04), felonies of the first degree; illegal

assembly or possession of chemicals for the manufacture of drugs (R.C. 2925.041), a

felony of the second degree; illegal assembly or possession of chemicals for the

manufacture of drugs (R.C. 2925.041), a felony of the third degree; having weapons

under disability (R.C. 2923.13), a felony of the third degree; illegal cultivation of Ashland County, Case No. 15 COA 041 3

marihuana (R.C. 2925.04), a misdemeanor of the fourth degree; and possessing drug

abuse instruments (R.C. 2925.12), a misdemeanor of the second degree.

{¶5} The case proceeded to a jury trial from September 8 through September

10, 2015. At said trial, appellant did not dispute that marihuana plants, firearms, and

evidence of a meth lab were present at the State Route 58 residence; however, his

defense asserted that he did not live at said address, and that he was otherwise not

responsible for any of the alleged criminal activity at that location. The State presented

eleven witnesses: Detective Olen Martin of the Lorain County Drug Task Force; Sergeant

Timothy Kitts of the Ashland County Sheriff’s Office; Agent Jared Prill of the Ohio BCI;

Theresa Pete, manager of the Mansfield Walgreen’s store; Supervising Agent David

Posten of the Ohio BCI; Detective Sergeant David Rohn of the Ashland County Sheriff’s

Office; Detective Monica Villoria of the Ashland County Sheriff’s Office; Agent Andrew

Webb of the Ohio BCI; Krista McCormick, records custodian for Apriss, Inc.; Ruth Kalman,

appellant’s mother; and Lieutenant Scott Smart of the Ashland County Sheriff’s Office.

{¶6} During the defense phase of the trial, no witnesses were called.

{¶7} After hearing the evidence and arguments, the jury found appellant guilty

on all counts. The trial court subsequently sentenced appellant to an aggregate prison

term of twelve years and an aggregate fine of $27,500.00. See Judgment Entry of

Sentencing, November 13, 2015, at 7.

{¶8} On November 24, 2015, appellant filed a notice of appeal. He herein raises

the following two Assignments of Error:

{¶9} “I. APPELLANT'S TRIAL COUNSEL RENDERED INEFFECTIVE

ASSISTANCE OF COUNSEL. Ashland County, Case No. 15 COA 041 4

{¶10} “II. APPELLANT'S CONVICTIONS WERE AGAINST THE MANIFEST

WEIGHT AND SUFFICIENCY OF THE EVIDENCE.”

{¶11} We will address these assigned errors in reverse order.

II.

{¶12} In his Second Assignment of Error, appellant argues his convictions are not

supported by sufficient evidence and are against the manifest weight of the evidence. We

agree in part and disagree in part.

Sufficiency of the Evidence

{¶13} In reviewing a defendant’s claim of insufficient evidence, “[t]he 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 (1991), 61 Ohio St.3d 259, 574 N.E.2d 492,

paragraph two of the syllabus.

The Drug Convictions

{¶14} In the case sub judice, appellant first argues, concerning the sufficiency of

the evidence going to the drug manufacturing and cultivation charges, that “the State

could not place appellant at the property at the time of [the] offenses.” Appellant’s Brief at

6. We note the record reveals Detective Olen Martin’s testimony that despite the officers’

search of the location in question on June 9, 2015, appellant was not present. Trial Tr. at

66. Sergeant Kitts similarly conceded during his testimony that he was aware that

appellant did not live at the State Route 58 property at the pertinent times and that he

was “not sure where he was living at, at that time.” Tr. at 93. Furthermore, Agent Jared

Prill, who conducted “spot surveillance” of the property four or five times, stated he had Ashland County, Case No. 15 COA 041 5

never seen appellant present. Tr. at 103. Agent David Posten conceded that although he

saw appellant’s mother, her apparent boyfriend, and appellant’s son during his search,

he never saw appellant around the seized contraband. See Tr. at 166-167. Finally,

appellant’s mother testified, regarding whether appellant lived at her residence during the

relevant time frame, that “[i]t's been probably a couple years since he's stayed there.” Tr.

at 266.

{¶15} Nonetheless, it is well-established in Ohio that circumstantial evidence has

the same probative value as direct evidence. See, e.g., State v. Pryor, 5th Dist. Stark No.

2007CA00166, 2008–Ohio–1249, ¶ 34, citing Jenks, supra. In the case sub judice, a

number of items discovered at the State Route 58 property circumstantially tied appellant

to being physically present at the drug manufacturing and cultivation site. For example,

Detective Martin described a CVS Pharmacy prescription ibuprofen bottle, with

appellant’s name on the label, found in the house during the search. See Tr. at 77-78.

Sergeant Kitts described another prescription bottle listing appellant’s name, found in the

camper. Tr. at 97. Sergeant Kitts also told the jury that paperwork with appellant’s name

was found in the basement of the house, including “car title work, gas bills, and other

items.” Tr. at 97. Agent Posten recounted some of the paperwork he discovered in the

basement, including mail addressed to appellant and auto insurance policies belonging

to appellant’s girlfriend, Lorie. See Tr. at 163-164. Granted, the documents referenced

by Posten utilized an Ashland city address, but we find it was not necessary in these

circumstances for the State to demonstrate continuous residence by appellant, only that

he frequented the property and possessed or exercised control over the drug operations

on the premises. Ashland County, Case No. 15 COA 041 6

{¶16} Finally, and most importantly, the State presented clear evidence that

appellant and Lorie had recently been engaged in purchasing unusual amounts of

pseudoephedrine, thus providing another circumstantial nexus to appellant’s

methamphetamine operation at the site. For example, Agent Prill testified that a package

of pseudoephedrine he found on the property should have contained, based on the

recent date of the purchase, a much larger remaining amount of tablets if the package

had been consumed under a proper dosage. See Tr. at 141. We find the jurors could

have reasonably treated the evidence of pseudoephedrine purchases as a “smoking gun”

to tie together the remaining circumstantial evidence of appellant’s connection to the State

Route 58 property.

{¶17} Therefore, upon review of the aforesaid, we find sufficient circumstantial

evidence existed for reasonable fact finders to conclude beyond a reasonable doubt that

appellant engaged in the drug manufacturing, assembly, and cultivation activities as

charged in the indictment. We thus hold said convictions were supported by the

sufficiency of the evidence.1

The Weapons Conviction

{¶18} Appellant secondly argues, concerning the sufficiency of the evidence going

to the weapons under disability charge, that there was a paucity of evidence as to

ownership or possession of the firearms found in the house and the camper. He correctly

notes there was no testimony that the firearms were registered to appellant, and no

1 However, appellant also urges that there was no evidence that any of the drug manufacturing or cultivation offenses occurred in the presence of a juvenile on the property. The State concedes that this specification was not supported by sufficient evidence, and we will direct that appellant be resentenced accordingly. Ashland County, Case No. 15 COA 041 7

fingerprint evidence was presented to the jury. Furthermore, Detective Villoria indicated

that she would not be surprised if there had been multiple owners of the firearms, and “it

could be” that they were owned by Ruth Kalman. See Tr. at 234-235. The State attempted

to utilize Ruth to prove who the guns belonged to; however, other than her “guessing”

reference to the trailer sometimes being used by appellant (Tr. at 269), she provided little

of probative value in the State’s favor on this point. Ruth testified: “The firearms are guns

that have been around. Farmers have guns, you know. And I would say the guns were –

just have been there like, forever, too. They were my ex’s or – and I know the one gun

was my youngest daughter’s. ***.” Tr. at 273. Furthermore, on cross-examination by

defense counsel, Ruth testified that she and her friend, Cecil Clark, both own firearms

and have their CCW licenses, and that firearms belonging to herself, Clark, Lorie

McClaughlin, and Ruth's daughter, as well as others, have been stored over time at the

property. See Tr. 294-295.

{¶19} Accordingly, upon review, we find insufficient evidence was presented for

reasonable fact finders to convict appellant on the weapons under disability charges,

beyond a reasonable doubt. Appellant’s conviction under Count VI of the indictment is

therefore vacated.

Manifest Weight of the Evidence

{¶20} In regard to appellant’s manifest weight challenge to his convictions, our

standard of review is stated as follows: “The court, 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 Ashland County, Case No. 15 COA 041 8

a new trial ordered.” State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717.

See also, State v. Thompkins (1997), 78 Ohio St.3d 380, 678 N.E.2d 541. The granting

of a new trial “should be exercised only in the exceptional case in which the evidence

weighs heavily against the conviction.” Martin at 175, 485 N.E.2d 717.

{¶21} Appellant’s focus is again on the issues of placing appellant at the residence

in question and the ownership or possession of the firearms found at the property.2 As

appellant correctly notes, there was testimony from at least one law enforcement officer

that some of the mail seized at the State Route 58 location was addressed to appellant

at a Main Street address in Ashland. See Tr. at 145-146.

{¶22} However, in the interest of justice we have reviewed the record under the

standard of Martin, and we find the jury did not clearly lose its way and create a manifest

miscarriage of justice requiring that appellant's convictions be reversed and a new trial

ordered. Appellant’s drug-related convictions were not against the manifest weight of the

evidence.

{¶23} Appellant's Second Assignment of Error is therefore overruled in part and

sustained in part.

I.

{¶24} In his First Assignment of Error, appellant contends he was deprived of the

effective assistance of trial counsel. We disagree.

{¶25} Our standard of review for ineffective assistance claims is set forth in

Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Ohio

2 Based on our determinations as to the insufficiency of the evidence regarding the weapons charge(s), the issue of manifest weight is now limited to the drug manufacturing and cultivation counts. Ashland County, Case No. 15 COA 041 9

adopted this standard in the case of State v. Bradley (1989), 42 Ohio St.3d 136, 538

N.E.2d 373. These cases require a two-pronged analysis: First, we must determine

whether counsel's assistance was ineffective; i.e., whether counsel's performance fell

below an objective standard of reasonable representation and was violative of any of his

or her essential duties to the client. If we find ineffective assistance of counsel, we must

then determine whether or not the defense was actually prejudiced by counsel's

ineffectiveness such that the reliability of the outcome of the trial is suspect. This requires

a showing that there is a reasonable probability that but for counsel's unprofessional error,

the outcome of the trial would have been different. Id. Trial counsel is entitled to a strong

presumption that all decisions fall within the wide range of reasonable professional

assistance. State v. Sallie (1998), 81 Ohio St.3d 673, 675, 693 N.E.2d 267.

{¶26} In the case sub judice, appellant emphasizes that although his trial counsel

did enter three objections during the trial (Tr. at 20, 292, 319), trial counsel specifically

failed to object to the following: (1) Detective Olen Martin’s reference at trial to Ruth

Kalman's property as "Mr. Kalman's residence" (Tr. at 53); (2) Detective Monica Villoria's

testimony that the center downstairs bedroom in the basement of the house was

"[determined] [t]o be Mark Kalman's" (Tr. at 181); and (3) to Detective Scott Smart's

testimony that Ruth Kalman had told him that appellant and Lorie McClaughlin owned

the camper on the property (Tr. at 310). Specifically, appellant urges that the first two

instances above were objectionable because the State failed to lay a proper foundation

for Detective Martin's statement regarding appellant’s residency in the house and

Detective Villoria's conclusion that appellant lived in the basement. See Evid.R. 602. Ashland County, Case No. 15 COA 041 10

Furthermore, appellant maintains that Detective Smart's testimony about ownership of

the camper on the property was hearsay. See Evid.R. 801.

{¶27} Appellant maintains that because his defense at trial was that he did not live

at his mother's home and that he was not present for any criminal activity, trial counsel's

failure to object to the aforesaid testimony fell below an objective standard of

reasonableness. Appellant also contends he was prejudiced because this testimony was

the only direct evidence presented that he lived at the property during the timeframe in

question.

{¶28} It is well-established that “[c]ompetent counsel may reasonably hesitate to

object [to errors] in the jury's presence because objections may be considered

bothersome by the jury and may tend to interrupt the flow of a trial.” State v. Rogers, 9th

Dist. Summit No. 19176, 1999 WL 239100, citing State v. Campbell (1994), 69 Ohio St.3d

38, 53, 630 N.E.2d 339 (internal quotations omitted). Moreover, the United States

Supreme Court and the Ohio Supreme Court have held a reviewing court “need not

determine whether counsel's performance was deficient before examining the prejudice

suffered by the defendant as a result of the alleged deficiencies.” Bradley at 143, 538

N.E.2d 373, quoting Strickland at 697.

{¶29} We first note appellant does not appear to challenge Agent Prill’s statement

on cross that “it was known that he was using that address [100 S.R. 58] as his current

address.” See Tr. at 145. Nonetheless, the record reveals that Ruth Kalman testified to

appellant having grown up and lived on the property, and that he had stayed in a room in

the basement. Tr. at 265, 269. Ruth also testified regarding appellant's use of the camper:

"Well I guess Mark did. I don't know. I don't think anybody really used it. It was there." Tr. Ashland County, Case No. 15 COA 041 11

at 269. She also recalled that appellant used to visit his son, B.K., before he went into

rehab care, "two or three maybe times a week." Tr. at 270.

{¶30} We reiterate that it was not necessary for the State to show appellant

continuously resided at the property in question in order to prove he was involved with

the drug operations at the site. In light of the foregoing, and in conjunction with the

circumstantial evidence analyzed previously herein, we find appellant has failed to

demonstrate a reasonable probability that but for counsel's alleged error in failing to object

at the points cited, the outcome of the trial would have been different.

{¶31} Appellant's First Assignment of Error is therefore overruled.

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

Ashland County, Ohio, is hereby affirmed in part, reversed in part, and remanded with

directions to vacate appellant’s weapons under disability conviction and any “vicinity of a

juvenile” specifications in the remaining counts, and to resentence him accordingly.

By: Wise, J.

Farmer, P. J., and

Hoffman, J., concur.

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