State v. Pulley

2013 Ohio 1624

• Court: Ohio Court of Appeals
• Decided: April 24, 2013
• Docket: C-120444
• Status: Published

Opinion

[Cite as State v. Pulley, 2013-Ohio-1624.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-120444 TRIAL NO. B-1105552 Plaintiff-Appellee, :

vs. : O P I N I O N.

ERIKA PULLEY, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: April 24, 2013

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Roger W. Kirk, for Defendant-Appellant.

Please note: we have removed this case from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS

DEWINE, Judge.

{¶1} Erika Pulley was convicted of trafficking in marijuana and sentenced

to three years of community control. In this appeal, she raises the following

arguments in challenge to her conviction: (1) she was denied her Sixth Amendment

right to counsel when the trial court refused to appoint new counsel on the day of

trial, (2) her conviction was based in part on the testimony of witnesses who had

violated the court’s separation order, (3) the state violated the rules of discovery by

failing to timely disclose a drug lab report, (4) a police officer was improperly

allowed to testify about her silence following her arrest, (5) the trial court improperly

denied her motion to suppress, and (6) the evidence of her guilt was insufficient. She

also contends that her sentence was contrary to law because the trial court failed to

advise her concerning the potential of postrelease-control supervision. We find none

of these arguments to be persuasive, and affirm the judgment of the trial court.

{¶2} According to evidence adduced at her trial, Ms. Pulley was the

passenger in a car that police officers stopped because it was following another car

too closely. When Officers Scott Hughes and Matt Wilcher approached the car, they

detected a very strong odor of raw marijuana. Ms. Pulley and the driver were asked

to exit from the car, and were placed in separate police cruisers. A search of the car

uncovered only small “crumbs” of marijuana, which according to Officer Hughes,

could not have caused the strong odor that the officers had detected. The driver of

the car was searched, and no drugs were found on him. Upon returning to the

cruiser where Ms. Pulley had been placed, Officer Wilcher again smelled a strong

aroma of marijuana. Officer Katie Long was called to conduct a search of Ms. Pulley.

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{¶3} Officer Long found two stacks of money in Ms. Pulley’s bra and two

large bundles of what appeared to be marijuana in her crotch area. During the

search, Ms. Pulley was verbally combative with Officer Long and generally

uncooperative. After the search was completed, Officer Hughes undertook a count of

the money and announced that there was approximately $4500 present. Ms. Pulley

volunteered that it was $5000, and that the money came from a Columbus hair salon

she owned and the sale of 2004 Dodge car. Officer Wilcher was unable to verify the

existence of either the business or the car.

{¶4} Upon returning to the police station, Officer Hughes weighed both

bundles and found that they totaled 91 grams. One of the bundles was later

analyzed by the crime laboratory and found to consist of 42 grams of marijuana.

{¶5} Ms. Pulley was indicted for trafficking in marijuana in an amount less

than 200 grams, a felony of the fifth degree. She moved to suppress evidence

discovered during the search of her person and statements that she had made to the

officers prior to being informed of her Miranda rights. The trial court denied the

motion to suppress, and the case was tried before a jury. The jury returned a guilty

verdict, and the trial court imposed the community-control sentence.

{¶6} In her first assignment of error, Ms. Pulley asserts that the trial court

erred by failing to advise her about the possibility of postrelease-control supervision

and the attendant penalities for violation of the terms of postrelease control. A court

is required to inform a defendant about postrelease-control supervision “if the

sentencing court determines at the sentencing hearing that a prison term is

necessary or required.” R.C. 2929.19(B)(2); see also State v. Russell, 5th Dist. No.

06 CA 12, 2006-Ohio-4450, ¶ 26. Here, because the trial court did not impose a

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prison term, there was no need to provide any notification relating to postrelease

control. The first assignment of error is overruled.

{¶7} Ms. Pulley argues in her second assignment of error that the trial

court abused its discretion when it denied her request for new counsel. On the first

day of trial, Ms. Pulley made an oral motion to have a new attorney appointed. She

expressed displeasure that her attorney had filed a tardy motion to suppress and that

her attorney’s preparation for the trial had suffered due to a broken arm. The trial

court inquired about the attorney’s state of preparedness and noted that although the

motion to suppress had been filed late, it would be heard prior to the start of the

trial. Other than the issue with the filing of the motion to suppress, Ms. Pulley did

not explain why she believed her counsel was not ready to proceed. Moreover,

nothing in her colloquy with the trial court demonstrated that there had been a

complete breakdown in communication between her and her counsel. See State v.

Murphy, 91 Ohio St.3d 516, 747 N.E.2d 765 (2001); State v. Gordon, 149 Ohio

App.3d 237, 2002-Ohio-2761, 776 N.E.2d 1135 (1st Dist.). Accordingly, the trial

court did not abuse its discretion in refusing to appoint new counsel. We overrule

the second assignment of error.

{¶8} Ms. Pulley’s next assignment of error is that that the trial court erred

by failing to sanction the state’s police witnesses for violating the court’s separation

order. A hearing on Ms. Pulley’s motion to suppress was held prior to jury selection.

At that time, the trial court issued a separation order for all witnesses. At the end of

jury selection on the following day, Ms. Pulley told the court that she had seen

Officers Hughes, Wilcher, and Long discussing the case. The officers acknowledged

that they had discussed Officer Long’s testimony about her search of Ms. Pulley. The

4 OHIO FIRST DISTRICT COURT OF APPEALS

assistant prosecuting attorney professed that she had not been aware that the officers

had discussed the case, and the officers explained that they had been under the

impression that the separation of witnesses was for purposes of the motion to

suppress. The court explained that the separation order applied not only to the

motion hearing but to the entire trial, and proceeded to conduct a detailed inquiry of

the officers as to what had been discussed. After hearing from the officers, the court

determined that the discussion between the officers would not impact their trial

testimony. Defense counsel did not make any specific motion for a mistrial or

exclusion of witnesses, but instead made a generic request that “sanctions be

imposed against the state and their witnesses.” The trial court denied the request.

{¶9} We do not believe the trial court made any error in this regard. The

remedy for the violation of a separation order is generally within the sound

discretion of the trial court. State v. Taylor, 1st Dist. No. C-020475, 2004-Ohio-

1494, ¶ 32. Before the court may exclude a witness, there must be a demonstration

that the party calling the witness “consented to, connived in, procured or had

knowledge of the witness’ disobedience.” State v. Smith, 49 Ohio St.3d 137, 142, 551

N.E.2d 190 (1990). Here no such demonstration was made, and the trial court

acted within its discretion in its handling of the matter. The third assignment of

error is overruled.

{¶10} In her fourth assignment of error, Ms. Pulley argues she was deprived

of a fair trial due to prosecutorial misconduct. Specifically, she contends that the

assistant prosecutor violated Crim.R. 16 by failing to disclose the state’s entire

laboratory report prior to trial. The record does not support this assertion. One of

the two bundles that Ms. Pulley was arrested with was analyzed by the crime

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laboratory and found to consist of 42 grams of marijuana. The record is perfectly

clear that this laboratory report—the only laboratory report that was prepared—was

provided to the defense prior to trial.

{¶11} Ms. Pulley’s real objection seems to be that Officer Hughes was

allowed to testify that the two bundles together weighed 91 grams based upon his

having weighed them at the station despite the fact that the crime lab only weighed

and analyzed one of the bundles. Officer Hughes did not prepare a report, and

there is nothing in Crim.R. 16 that required the state to notify Ms. Pulley that Officer

Hughes had weighed the marijuana. Moreover, it is clear from the record that the

marijuana packages were available to Ms. Pulley’s counsel prior to trial, and she had

ample opportunity to weigh the evidence. We overrule the fourth assignment of

error.

{¶12} In the fifth assignment of error, Ms. Pulley asserts that the trial court

impermissibly allowed Officer Wilcher to testify as to Ms. Pulley’s exercise of her

constitutional right to remain silent. Specifically, she complains that Officer Wilcher

was allowed to testify that she initially didn’t answer when he asked how much

money she had. A review of the record, however, reveals that Ms. Pulley never

invoked her right to remain silent. Ms. Pulley was quite vocal—in fact, she

repeatedly insulted Officer Long—during the search of her body. When the cash was

discovered, she apparently did not respond when asked how much money was

present. But later, after the money was counted, she volunteered an account of

where the money came from. A defendant’s invocation of her right to remain silent

must be unequivocal. State v. Murphy, 91 Ohio St.3d 516, 520, 747 N.E.2d 765

(2001), citing Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d

6 OHIO FIRST DISTRICT COURT OF APPEALS

362 (1994). In these circumstances, it is evident that she did not invoke her right to

remain silent, and nothing precluded the state from offering Officer Wilcher’s

narrative of the investigation following the stop of the car. The fifth assignment of

{¶13} Ms. Pulley asserts in the sixth assignment of error that the trial court

erred when it overruled her motion to suppress. She maintains that the search of her

person was illegal, and that the trial court should not have admitted testimony about

her statements to police officers because she had not been Mirandized at the time of

the statements.

{¶14} The police officers had probable cause to search the car based on the

strong smell of raw marijuana emanating therefrom. State v. Steadman, 1st Dist.

No. C-110751, 2012-Ohio-3135. As a passenger of the car with no expectation of

privacy in the car, Ms. Pulley had no standing to contest the car’s search. See State v.

Seay, 1st Dist. No. C-040763, 2005-Ohio-5964. When Officer Wilcher continued to

smell the strong scent in the cruiser where Ms. Pulley was waiting during the search

of the car, probable cause existed to search her.

{¶15} Ms. Pulley contends that all the statements that she made to the

officers should have been suppressed. But none of her statements were in response

to questioning by the police officers. Rather, she made unprompted remarks during

Officer Long’s body search, and volunteered an explanation of the source of the

money after it had been counted. We conclude that the trial court did not err in

overruling the motion to suppress. The sixth assignment of error is overruled.

{¶16} Ms. Pulley’s final assignment of error is that her conviction was based

on insufficient evidence and was against the manifest weight of the evidence. She

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argues that, at most, she should have been convicted of possession because the

marijuana was for her personal use. But the evidence offered by the state—including

the amount of the marijuana, the large amount of money, and the way in which Ms.

Pulley had hidden the bundles—was sufficient to support a conviction for trafficking.

See State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). And having

reviewed the record, we are unable to conclude that the jury lost its way in finding

Ms. Pulley guilty of the offense. Id. at 387. The seventh assignment of error is

overruled, and we affirm the judgment of the trial court.

Judgment affirmed.

HENDON, P.J., and DINKELACKER, J., concur.

Please note:

The court has recorded its own entry on the date of the release of this opinion.