[Cite as State v. Pulley, 2016-Ohio-249.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 14-15-21
v.
ALEXANDRIA PULLEY, OPINION
DEFENDANT-APPELLANT.
Appeal from Marysville Municipal Court Trial Court No. 2015-CRB-00088
Judgment Affirmed
Date of Decision: January 25, 2016
APPEARANCES:
Adam G. Burke for Appellant
Rick Rodger for Appellee Case No. 14-15-21
ROGERS, J.
{¶1} Defendant-Appellant, Alexandria Pulley, appeals the judgment of the
Marysville Municipal Court convicting her of speeding, possession of marihuana,
and possession of drug paraphernalia. On appeal, Pulley argues that the trial court
was biased in that it had ultimately decided the merits of the case before Pulley
was finished with her case-in-chief. For the reasons that follow, we affirm the
judgment of the trial court.
{¶2} On February 7, 2015, Pulley was issued citations for possession of
drug paraphernalia in violation of R.C. 2925.141, a minor misdemeanor;
possession of marihuana in violation of R.C. 2925.11, a minor misdemeanor; and
speeding.1 Pulley entered pleas of not guilty to all three charges on February 23,
2015.
{¶3} The matter proceeded to a bench trial on May 18, 2015 where the
following testimony was heard.
{¶4} Trooper Jerrod White of the Ohio State Highway Patrol was the first
witness to testify. Trooper White testified that he was working on February 7,
2015. On that morning, Trooper White stated that he stopped Pulley’s vehicle for
1 The criminal and traffic cases were assigned different case numbers. The drug paraphernalia and marihuana possession charges were assigned case nos. 15CRB88A and 15CRB88B respectively. The speeding charge was assigned case no. 15TRD795. On appeal, Pulley only challenges her convictions in case numbers 15CRB88A and 15CRB88B. Thus, we will not consider any alleged errors regarding case no. 15TRD795.
-2- Case No. 14-15-21
a speeding violation. Specifically, he testified that she was traveling at a speed of
80 miles per hour in a 70 miles per hour zone.
{¶5} Trooper White explained that Pulley was the sole occupant of the
vehicle that morning. Moreover, he testified that Pulley seemed extremely
nervous for a seemingly minor traffic violation. He stated that her hands were
shaky and that “she just seemed overly nervous in her demeanor like she was
almost ready to cry.” Trial Tr., p. 17.
{¶6} Trooper White testified that nervousness can be an indication that
other criminal activity is afoot. Although he explained that it is normal for people
to be nervous when interacting with police, he stated that usually this nervousness
diminishes during the stop; Pulley, however, only seemed to grow more nervous
as the stop continued.
{¶7} Trooper White testified that he observed a bottle of Febreze hanging
on the back of the front seat in a pouch. He also noticed some perfume in the front
passenger compartment. Based on his observations and his training, Trooper
White stated that he called a canine unit to perform a drug sniff on Pulley’s
vehicle.
{¶8} Trooper White explained that Deputy Bob Roberts and his dog arrived
on the scene, walked around the car, and Deputy Roberts indicated that the dog
alerted on the car. Trooper White stated that Pulley was then removed from the
-3- Case No. 14-15-21
car while they performed a search of the vehicle. As a result of the search,
Trooper White testified that he found two pipes, typically used for smoking
marihuana, with what he believed to be marihuana residue inside the pipes. He
also found what he believed to be a marihuana cigarette and several pieces of
marihuana debris all throughout the console area of the vehicle. Trooper White
explained that the cigarette was found right next to Pulley’s purse, which was
within reach of the driver’s seat. Trooper White identified photographs of all the
items removed from the car (the pipes, cigarette, and debris), which were admitted
into evidence.
{¶9} Trooper White testified that he submitted the items for testing. He
identified a copy of the lab report, which was admitted into evidence. The results
came back positive for marihuana on all the items.
{¶10} Trooper White stated that Pulley had indicated that she and her
friends have smoked marihuana in the past. She also told him that although her
grandmother owns the car, Pulley was the primary driver. He added that she
possessed the keys to the car. Trooper White concluded by stating that he issued
Pulley citations for the violations and let her go on her way.
{¶11} On cross-examination, Trooper White testified that it was uncommon
to find Febreze hanging on the back pouch of the front seat, but admitted that it
was common to find perfume in a woman’s vehicle. He also admitted that neither
-4- Case No. 14-15-21
the odor of fresh marihuana nor burnt marihuana was present in the vehicle or on
Pulley’s person.
{¶12} Deputy Bob Roberts of the Union County Sheriff’s office was the
last witness to testify on behalf of the State. Deputy Roberts testified that he
served as a drug canine handler. He stated that he responded to a call made by
Trooper White to perform a drug sniff around a person’s vehicle.
{¶13} Upon arriving at the scene, Deputy Roberts testified that he and his
dog approached Pulley, he explained why they were there and what they were
going to do, and asked Pulley if she wanted to admit to anything that was in the
car. After this brief conversation, Deputy Roberts stated that his dog positively
alerted on the passenger door.
{¶14} On cross-examination, Deputy Roberts admitted that none of the
incriminating items could be seen from a plain view search.
{¶15} At the conclusion of Deputy Roberts’s testimony, the State rested.
{¶16} Brian Pulley (“Brian”), Pulley’s father, was the first witness to testify
on Pulley’s behalf. Brian testified that Pulley’s car was a complete mess on
February 7, 2015. He added that he knew Pulley would give different people rides
to work or the grocery store.
-5- Case No. 14-15-21
{¶17} When Pulley’s counsel attempted to ask Brian who Pulley gave rides
to, the following exchange occurred between the court, the prosecutor, and defense
counsel:2
D: All right. Who was she giving rides to work to?
P: Objection. One, relevance. But two, it has nothing to do with what we’re doing here.
C: Sustained. Sustained.
D: Your Honor, I think this is relevant to who’s in possession of the - - the drugs and the paraphernalia.
P: We’ve already had that testimony that she was in possession of the vehicle that day.
C: Correct. So I’m going to sustain the objection.
D: Your Honor, is there - - is there any point in having the rest of the trial? It sounds like you’ve already made a ruling. If the - -
C: I think - -
D: If basically what we’re saying is if the marijuana - - if - - and the paraphernalia is in her vehicle, then she’s guilty. And I don’t believe the case law supports that, your Honor. But if that’s your ruling, then we might as well call an end to the hearing.
C: It’s up to you.
D: Okay.
C: Do what you want.
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[Cite as State v. Pulley, 2016-Ohio-249.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 14-15-21
v.
ALEXANDRIA PULLEY, OPINION
DEFENDANT-APPELLANT.
Appeal from Marysville Municipal Court Trial Court No. 2015-CRB-00088
Judgment Affirmed
Date of Decision: January 25, 2016
APPEARANCES:
Adam G. Burke for Appellant
Rick Rodger for Appellee Case No. 14-15-21
ROGERS, J.
{¶1} Defendant-Appellant, Alexandria Pulley, appeals the judgment of the
Marysville Municipal Court convicting her of speeding, possession of marihuana,
and possession of drug paraphernalia. On appeal, Pulley argues that the trial court
was biased in that it had ultimately decided the merits of the case before Pulley
was finished with her case-in-chief. For the reasons that follow, we affirm the
judgment of the trial court.
{¶2} On February 7, 2015, Pulley was issued citations for possession of
drug paraphernalia in violation of R.C. 2925.141, a minor misdemeanor;
possession of marihuana in violation of R.C. 2925.11, a minor misdemeanor; and
speeding.1 Pulley entered pleas of not guilty to all three charges on February 23,
2015.
{¶3} The matter proceeded to a bench trial on May 18, 2015 where the
following testimony was heard.
{¶4} Trooper Jerrod White of the Ohio State Highway Patrol was the first
witness to testify. Trooper White testified that he was working on February 7,
2015. On that morning, Trooper White stated that he stopped Pulley’s vehicle for
1 The criminal and traffic cases were assigned different case numbers. The drug paraphernalia and marihuana possession charges were assigned case nos. 15CRB88A and 15CRB88B respectively. The speeding charge was assigned case no. 15TRD795. On appeal, Pulley only challenges her convictions in case numbers 15CRB88A and 15CRB88B. Thus, we will not consider any alleged errors regarding case no. 15TRD795.
-2- Case No. 14-15-21
a speeding violation. Specifically, he testified that she was traveling at a speed of
80 miles per hour in a 70 miles per hour zone.
{¶5} Trooper White explained that Pulley was the sole occupant of the
vehicle that morning. Moreover, he testified that Pulley seemed extremely
nervous for a seemingly minor traffic violation. He stated that her hands were
shaky and that “she just seemed overly nervous in her demeanor like she was
almost ready to cry.” Trial Tr., p. 17.
{¶6} Trooper White testified that nervousness can be an indication that
other criminal activity is afoot. Although he explained that it is normal for people
to be nervous when interacting with police, he stated that usually this nervousness
diminishes during the stop; Pulley, however, only seemed to grow more nervous
as the stop continued.
{¶7} Trooper White testified that he observed a bottle of Febreze hanging
on the back of the front seat in a pouch. He also noticed some perfume in the front
passenger compartment. Based on his observations and his training, Trooper
White stated that he called a canine unit to perform a drug sniff on Pulley’s
vehicle.
{¶8} Trooper White explained that Deputy Bob Roberts and his dog arrived
on the scene, walked around the car, and Deputy Roberts indicated that the dog
alerted on the car. Trooper White stated that Pulley was then removed from the
-3- Case No. 14-15-21
car while they performed a search of the vehicle. As a result of the search,
Trooper White testified that he found two pipes, typically used for smoking
marihuana, with what he believed to be marihuana residue inside the pipes. He
also found what he believed to be a marihuana cigarette and several pieces of
marihuana debris all throughout the console area of the vehicle. Trooper White
explained that the cigarette was found right next to Pulley’s purse, which was
within reach of the driver’s seat. Trooper White identified photographs of all the
items removed from the car (the pipes, cigarette, and debris), which were admitted
into evidence.
{¶9} Trooper White testified that he submitted the items for testing. He
identified a copy of the lab report, which was admitted into evidence. The results
came back positive for marihuana on all the items.
{¶10} Trooper White stated that Pulley had indicated that she and her
friends have smoked marihuana in the past. She also told him that although her
grandmother owns the car, Pulley was the primary driver. He added that she
possessed the keys to the car. Trooper White concluded by stating that he issued
Pulley citations for the violations and let her go on her way.
{¶11} On cross-examination, Trooper White testified that it was uncommon
to find Febreze hanging on the back pouch of the front seat, but admitted that it
was common to find perfume in a woman’s vehicle. He also admitted that neither
-4- Case No. 14-15-21
the odor of fresh marihuana nor burnt marihuana was present in the vehicle or on
Pulley’s person.
{¶12} Deputy Bob Roberts of the Union County Sheriff’s office was the
last witness to testify on behalf of the State. Deputy Roberts testified that he
served as a drug canine handler. He stated that he responded to a call made by
Trooper White to perform a drug sniff around a person’s vehicle.
{¶13} Upon arriving at the scene, Deputy Roberts testified that he and his
dog approached Pulley, he explained why they were there and what they were
going to do, and asked Pulley if she wanted to admit to anything that was in the
car. After this brief conversation, Deputy Roberts stated that his dog positively
alerted on the passenger door.
{¶14} On cross-examination, Deputy Roberts admitted that none of the
incriminating items could be seen from a plain view search.
{¶15} At the conclusion of Deputy Roberts’s testimony, the State rested.
{¶16} Brian Pulley (“Brian”), Pulley’s father, was the first witness to testify
on Pulley’s behalf. Brian testified that Pulley’s car was a complete mess on
February 7, 2015. He added that he knew Pulley would give different people rides
to work or the grocery store.
-5- Case No. 14-15-21
{¶17} When Pulley’s counsel attempted to ask Brian who Pulley gave rides
to, the following exchange occurred between the court, the prosecutor, and defense
counsel:2
D: All right. Who was she giving rides to work to?
P: Objection. One, relevance. But two, it has nothing to do with what we’re doing here.
C: Sustained. Sustained.
D: Your Honor, I think this is relevant to who’s in possession of the - - the drugs and the paraphernalia.
P: We’ve already had that testimony that she was in possession of the vehicle that day.
C: Correct. So I’m going to sustain the objection.
D: Your Honor, is there - - is there any point in having the rest of the trial? It sounds like you’ve already made a ruling. If the - -
C: I think - -
D: If basically what we’re saying is if the marijuana - - if - - and the paraphernalia is in her vehicle, then she’s guilty. And I don’t believe the case law supports that, your Honor. But if that’s your ruling, then we might as well call an end to the hearing.
C: It’s up to you.
D: Okay.
C: Do what you want.
2 For ease of discussion, “C” indicates when the trial court was speaking, “P” indicates when the prosecutor was speaking, and “D” indicates when Pulley’s counsel was speaking.
-6- Case No. 14-15-21
Id. at p. 54. After speaking with her counsel, Pulley decided to continue with the
trial.
{¶18} Brian testified that approximately a week prior to Pulley’s traffic
stop, Austin Hanks was a passenger in Pulley’s car.
{¶19} On cross-examination, Brian testified that nobody else drives
Pulley’s vehicle other than her.
{¶20} Austin Hanks was the next witness to testify, but invoked his right
against self-incrimination.
{¶21} Pulley was the final witness to testify. Pulley admitted that she was
speeding on February 7, 2015 when she was pulled over by Trooper White. Pulley
testified that she was nervous because she had just recently received a speeding
ticket the previous month. Pulley stated that she was unaware that any marihuana
was present in the car.
{¶22} Pulley testified that Hanks was a passenger in her car a couple of
times during the week leading up to this traffic stop. She added that Hanks
smokes marihuana. She explained that Hanks had indicated to her that he would
admit to the possession of the marihuana and paraphernalia.
{¶23} On cross-examination, Pulley testified that she had no knowledge of
anyone smoking marihuana in her car other than herself. At the conclusion of
Pulley’s testimony, the defense rested.
-7- Case No. 14-15-21
{¶24} The court found Pulley guilty on all three counts. The case
proceeded immediately to sentencing. In case no. 15TRD95, the court imposed a
fine of $58 and court costs. In case no. 15CRB88A, the court imposed a fine of
$150 and court costs. Additionally, the court ordered that Pulley’s driver’s license
be suspended for 180 days. Finally, in case no. 15CRB88B, the court imposed a
fine of $150 and court costs. The court ordered that her license be suspended for
the same 180 day period as case no. 15CRB88A.
{¶25} Upon Pulley’s oral motion, the trial court stayed the execution of the
sentence pending an appeal.
{¶26} Pulley filed this timely appeal, presenting the following assignment
of error for our review.
Assignment of Error
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT A FAIR TRIAL.
{¶27} In her sole assignment of error, Pulley argues that she was denied a
fair trial. Specifically, she argues that the trial court was biased. Pulley bases her
argument on the theory that the trial court impermissibly sustained the State’s
objection to Brian’s testimony regarding passengers in Pulley’s car. According to
Pulley, by doing so, the trial court had “already decided the merits of the case to
the extent that [Pulley] by necessity proceeded with her futile trial solely to
preserve the record for the instant appeal.” Appellant’s Brief, p. 11. We disagree.
-8- Case No. 14-15-21
{¶28} “ ‘A judge is presumed not to be biased or prejudiced, and a party
alleging bias or prejudice must present evidence to overcome the presumption.’ ”
Cline v. Mtge. Electronic Registration Sys., Inc., 10th Dist. Franklin No. 13AP-
240, 2013-Ohio-5706, ¶ 33, quoting Wardeh v. Altabchi, 158 Ohio App.3d 325,
2004-Ohio-4423, ¶ 20 (10th Dist.), citing In re Disqualification of Kilpatrick, 47
Ohio St.3d 605, 606 (1989) and Eller v. Wendy’s Internatl., Inc., 142 Ohio App.3d
321, 340 (10th Dist.2000). “ ‘The existence of prejudice or bias against a party is
a matter that is particularly within the knowledge and reflection of each individual
judge and is difficult to question unless the judge specifically verbalizes prejudice
toward a party.’ ” Cline at ¶ 33, quoting Wardeh at ¶ 20. “A judge’s rulings of
law are legal issues, subject to appeal, and are not by themselves evidence of bias
or prejudice.” Id., citing Okocha v. Fehrenbacher, 101 Ohio App.3d 309, 322 (8th
Dist.1995).
{¶29} Trial courts have broad discretion in determining whether to admit or
exclude evidence. State v. Heft, 3d Dist. Logan No. 8-09-08, 2009-Ohio-5908, ¶
62, citing State v. Issa, 93 Ohio St.3d 49, 64 (2001), citing State v. Maurer, 15
Ohio St.3d 239 (1984). Accordingly, a trial court’s ruling on the admissibility of
evidence will not be disturbed on appeal absent an abuse of discretion. Id. A trial
court will be found to have abused its discretion when its decision is contrary to
law, unreasonable, not supported by the evidence, or grossly unsound. State v.
-9- Case No. 14-15-21
Boles, 187 Ohio App.3d 345, 2010-Ohio-278, ¶ 16-18 (2d Dist.). When applying
the abuse of discretion standard, a reviewing court may not simply substitute its
judgment for that of the trial court. State v. Slappey, 3d Dist. Marion No. 9-12-58,
2013-Ohio-1939, ¶ 12.
{¶30} In the case before us, Pulley argues that the trial court’s bias was
evidenced by the court’s decision to exclude relevant evidence regarding
passengers in Pulley’s car and by remarks the court made after it granted the
State’s objection to that testimony.
Testimony Regarding Passengers
{¶31} Pulley’s first argument is that the trial court showed a bias by
excluding the relevant testimony of Brian who was about to testify as to whom
Pulley would give rides. The State objected on the grounds of relevancy, which
was immediately granted by the trial court. Defense counsel argued that it was
relevant because it went to who possessed the drugs and paraphernalia. The State
responded that the officers had already testified that Pulley was in sole possession
of the vehicle on the day in question. The trial court agreed with the State and
sustained the objection.
{¶32} It is clear from the record that Pulley’s defense was that the
marihuana and paraphernalia belonged to Hanks. Although the identity of recent
passengers could have been relevant in establishing the owner of the drugs and
-10- Case No. 14-15-21
paraphernalia, defense counsel initially failed to relate his line of questioning to
the relevant date of the traffic stop.
{¶33} Defense counsel tried, several times, to elicit testimony from Brian to
establish that Hanks had been a passenger in Pulley’s vehicle in the days
preceding the traffic stop. At the time the State’s objection was sustained, defense
counsel had failed to establish a time frame for when any passengers, including
possibly Hanks, were in Pulley’s car. After the State’s objection was sustained,
the trial court sustained several more State objections based on the same grounds.
See Trial Tr., p. 55-57. When defense counsel tied his questions to the relevant
date, Brian was able to testify that Hanks was a passenger in Pulley’s car some
time a week before the traffic stop.
{¶34} Because defense counsel failed to identify a time period for when
passengers were in Pulley’s car, the trial court did not abuse its discretion by
excluding testimony at that time. Further, even if the court did err, Brian was
ultimately able to testify that Hanks had been a passenger in Pulley’s car. Thus,
any error that may have occurred would have been harmless.
Trial Court’s Statements
{¶35} Specifically, Pulley claims that the following exchange proved that
the trial court had already decided the merits of the case:
D: Your Honor, is there - - is there any point in having the rest of the trial? It sounds like you’ve already made a ruling. If the - -
-11- Case No. 14-15-21
D: If basically what we’re saying is if the marijuana - - if - - and the paraphernalia is in her vehicle, then she’s guilty. And I don’t believe the case law supports that, your Honor. But if that’s your ruling, then we might as well call an end to the hearing.
Trial Tr., p. 54.
{¶36} The trial court’s statements “It’s up to you” and “Do what you want”
did not evidence a predisposition of the merits of the case. The trial court never
indicated or stated that it had determined that Pulley was guilty. Rather, the trial
court was responding to the comments made by defense counsel as to whether
Pulley should continue with her case-in-chief. The court informed counsel that the
decision as to whether to continue with its case-in-chief was up to Pulley.
{¶37} Accordingly, we overrule Pulley’s sole assignment of error.
{¶38} Having found no error prejudicial to Pulley, in the particulars
assigned and argued, we affirm the judgment of the trial court.
SHAW, P.J. and PRESTON, J., concur.
/jlr
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