State v. Simpson

109 N.E.3d 595, 2018 Ohio 1348
CourtCourt of Appeals of Ohio, Fourth District, Gallia County
DecidedMarch 27, 2018
DocketNo. 17CA7
StatusPublished
Cited by2 cases

This text of 109 N.E.3d 595 (State v. Simpson) is published on Counsel Stack Legal Research, covering Court of Appeals of Ohio, Fourth District, Gallia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Simpson, 109 N.E.3d 595, 2018 Ohio 1348 (Ohio Super. Ct. 2018).

Opinion

ABELE, J.

{¶ 1} This is an appeal from a Gallia County Common Pleas Court judgment of conviction and sentence. A jury found Michael Simpson, defendant below and appellant herein, guilty of (1) possession of cocaine in violation of R.C. 2929.11(A) ; (2) possession of heroin, in violation of R.C. 2925.11(A) ; (3) trafficking in cocaine, in violation of R.C. 2925.03(A)(2) ; and (4) trafficking in heroin, in violation of R.C. 2925.03(A)(2). The trial court merged the possession and trafficking charges for both drugs, found appellant to be a major drug offender, and sentenced him to serve twelve and one half years in prison.

{¶ 2} Appellant assigns one error for review:

"THE TRIAL COURT ERRED BY FINDING SIMPSON TO BE A MAJOR DRUG OFFENDER."

{¶ 3} On March 11, 2016, a Gallia County Grand Jury returned an indictment that charged appellant with (1) possession of cocaine in an amount equal to or exceeding one hundred grams (190.424 grams), in violation of R.C. 2925.11(A), a first-degree felony, (2) possession of heroin in an amount equal to or exceeding one gram, but less than five grams (1.965 grams), in violation of R.C. 2925.11(A), a fourth-degree felony, (3) trafficking in cocaine in an amount equal to or exceeding one hundred grams (190.424 grams), in violation of R.C. 2925.03(A)(2), a first-degree felony, and (4) trafficking in heroin in an amount equal to or exceeding one gram, but less than five grams (1.965 grams), in violation of R.C. 2925.03(A)(2), a fourth-degree felony. Appellant pled not guilty to all charges.

{¶ 4} During a one-day trial, Ohio State Highway Patrol Trooper Matthew Atwood testified that, on March 11, 2016, he stopped a vehicle for a headlight violation and the failure to use a turn signal. Trooper Atwood determined that Jodie Arthur, the front seat passenger, owned the vehicle. The driver, Patricia Smith, indicated to Trooper Atwood that she and Arthur had driven to Dayton to get appellant, but that she did not know appellant's name. Appellant, the backseat passenger, sat with two cell phones on his lap and his hands in the air.

{¶ 5} Arthur told Trooper Atwood that when they stopped, appellant tried to give her something and told her to hide it. Arthur also granted Trooper Atwood consent to search her vehicle. When Trooper Atwood told Smith that Arthur had consented to a vehicle search, Smith admitted that her purse contained spoons and syringes *597because she is an addict. Trooper Atwood found three syringes and two spoons with heroin residue. Near where appellant's feet had been on the backseat floor, Trooper Atwood found a yellow grocery bag that contained a bag of opened Chex Mix. Buried in the Chex Mix bag were several plastic bags that contained what Trooper Atwood immediately recognized as crack cocaine and heroin.

{¶ 6} At trial, Arthur testified that Smith is her friend and she asked to borrow her car to pick up a friend in Dayton. Arthur testified that while Trooper Atwood spoke with Smith outside the vehicle, appellant said to her "take this, put it in your vagina. It's not going to hurt you, I promise it's going to be okay." Arthur testified that she did not turn around to see what appellant was attempting to give to her, but when she told him no, he asked her once or twice more. In addition, the state played a recording of the traffic stop that contained conversations between appellant and Smith, and included appellant saying "don't say nothing Patty," as Trooper Atwood removed the Chex Mix bag from the vehicle. At trial, the state also introduced evidence regarding the weight of each drug.

{¶ 7} On April 17, 2017, after hearing the evidence and counsel's arguments, the jury found appellant guilty on all counts. At the sentencing hearing, the trial court merged counts one and three, merged counts two and four and sentenced appellant on count three (trafficking in cocaine in an amount equal to or exceeding 100 grams in violation of R.C. 2925.03(A)(2) ) and count four (trafficking in heroin in an amount equal to or exceeding 1 gram but less than 5 grams in violation of R.C. 2925.03(A)(2) ). The court determined that (1) pursuant to R.C. 2929.14(A)(1) the maximum prison term for a conviction of a first-degree felony is eleven years, (2) appellant committed his crimes while on federal felony probation, as well as probation in West Virginia, and (3) appellant has a history of drug offenses and incarceration, noting that appellant's crimes occurred two or three months after his release from prison. The court sentenced appellant to (1) serve eleven years for count three, with a R.C. 2925.03(C)(4)(g) major drug offender classification, (2) serve eighteen months for count four, and (3) serve the prison terms consecutively to one another. Finally, the court ordered five years of postrelease control on count three and up to three years on count four. This appeal followed.

{¶ 8} In his sole assignment of error, appellant asserts that the trial court erred by finding him to be a major drug offender. Appellant notes that this appeal is not premised upon a factual review, but instead a conflict in the law with respect to the major drug offender classification.

{¶ 9} The interpretation of a statute is a matter of law that an appellate court reviews de novo. State v. Straley , 139 Ohio St.3d 339, 2014-Ohio-2139, 11 N.E.3d 1175, ¶ 9. A court must first look at the language of the statute. Id. , citing Provident Bank v. Wood , 36 Ohio St.2d 101, 105, 304 N.E.2d 378 (1973). If the language is clear and unambiguous, courts must apply the language as written. Straley at ¶ 9. However, "where there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant. Id. at ¶ 10, citing State v. Young , 62 Ohio St.2d 370, 374, 406 N.E.2d 499 (1980), quoting United States v. Bass , 404 U.S. 336, 348, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971). Further, the "primary role in statutory construction is to give effect to the legislature's intention." Cline v. Ohio Bur. of Motor Vehicles ,

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Cite This Page — Counsel Stack

Bluebook (online)
109 N.E.3d 595, 2018 Ohio 1348, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-simpson-ohctapp4gallia-2018.