State v. Turner

2023 Ohio 441

• Court: Ohio Court of Appeals
• Decided: February 15, 2023
• Docket: 2022 CA 00040
• Status: Published

Opinion

[Cite as State v. Turner, 2023-Ohio-441.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. John W. Wise, P.J. Plaintiff-Appellee Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J. -vs- Case No. 2022 CA 00040 LAWRENCE J. TURNER

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 21CR416

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: February 15, 2023

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

WILLIAM C. HAYES WILLIAM T. CRAMER PROSECUTING ATTORNEY 470 Olde Worthington Road ROBERT N. ABDALLA Suite 200 ASSISTANT PROSECUTOR Westerville, Ohio 43082 20 South Second Street Newark, Ohio 43055 Licking County, Case No. 2022 CA 00040 2

Wise, P. J.

{¶1} Defendant-Appellant Lawrence J. Turner appeals his convictions and

sentences entered in the Licking County Court of Common Pleas following a bench trial.

{¶2} Appellee is the state of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶3} On July 29, 2021, Defendant-Appellant Lawrence J. Turner was indicted on

four drug-related counts: Counts 1 and 2: Aggravated Trafficking in Methamphetamine,

in amounts exceeding five times bulk but less than fifty times bulk, in violation of R.C.

§2925.03(A)(1)(C)(1)(d), both charged as first degree felonies based on an allegation that

the transactions occurred in the vicinity of a juvenile; Count 3: Aggravated Possession of

Methamphetamine, in violation of R.C. §2925.11(A)(1)(C)(1)(a), a fifth degree felony; and

Count 4: Aggravated possession of psilocybin in violation of R.C.

§2925.11(A)(1)(C)(1)(a), a fifth degree felony. The indictment contained a Forfeiture

Specification (U.S. Currency) for violation of R.C. §2981.02(A)(1)(B) and R.C.

§2941.1417(A), and two Forfeiture Specifications (Firearms) for violation of R.C.

§2981.02(A)(1)(C) and R.C. §2941.1417(A).

{¶4} Appellant waived his right to a jury trial and on April 4, 2022, the matter

proceeded to a bench trial where the following testimony was presented:

{¶5} Joshua McDonald testified that after he got caught with drugs, he agreed to

work with law enforcement and assisted the police in controlled buys. (T. at 9). The police

arranged for McDonald to make two buys and told him what to do. McDonald signed a

contract as an informant and was told that he would face criminal consequences if he did

not cooperate. (T. at 23). McDonald participated in controlled buys on June 29, 2021, and Licking County, Case No. 2022 CA 00040 3

July 15, 2021. (T. at 9). McDonald testified that he had previously purchased drugs from

Appellant Lawrence Turner, and met with Appellant on June 29, 2021, in order to

purchase drugs. Id. Prior to meeting with Appellant, law enforcement officers outfitted

McDonald with recording devices which recorded the June 29 purchase transaction. (T.

at 11). The audio recording was introduced as State's exhibit 7 (T. at 11-14). After

purchasing the drugs from Appellant, McDonald returned to law enforcement officers to

hand off the audio recording and purchased drugs, which included two ounces of

methamphetamine. (T. at 14).

{¶6} McDonald also testified regarding the controlled buy on July 15, 2021. (T.

at 15). Once again, prior to meeting with Appellant, McDonald met with law enforcement

officers who outfitted McDonald with recording equipment and provided him the

necessary cash to make the purchases. (T. at 15-16). The State introduced the audio

recording as Exhibit 14. (T. at 16-20). McDonald testified that on July 15, 2021, he

purchased approximately four ounces of methamphetamine from Appellant. (T. at 17). He

testified that Appellant's wife and child were present at the transaction and identified their

voices on the audio recording. (T. at 19). Following the transaction, McDonald met with

law enforcement officers and turned over the recording and purchased drugs. (T. at 20).

{¶7} On cross-examination, McDonald stated he has been twice convicted of

felonies and had several convictions for theft. (T. at 21). McDonald testified that he was

ordered to make the two controlled buys by law enforcement detectives under threat of

additional criminal consequences. (T. at 23). McDonald testified that he was currently out

on bond for a felony theft charge, and he believed that if he did not testify, that his bond

would be revoked. (T. at 24). Licking County, Case No. 2022 CA 00040 4

{¶8} Detective Sergeant Alan Thomas of the Licking County Sheriff’s

Department also testified regarding the controlled buys which took place on June 29,

2021, and July 15, 2021. Det. Thomas was in charge of overseeing the controlled

purchases. (T. at 30). Det. Thomas testified that he listened to the audio recording as the

informant McDonald completed the purchase from Appellant. (T. at 31). Det. Thomas

testified that he heard children on the recording, specifically an infant crying, while

McDonald purchased the drugs from Appellant. (T. at 33). Following the controlled buy,

Det. Thomas recovered the methamphetamine and recording device and debriefed the

informant. Id. Det. Thomas also testified regarding the July 15, 2021, controlled buy,

where he again had a supervisory role. (T. at 35).

{¶9} Detective Kyle Boerstler of the Licking County Sheriff’s Department also

testified regarding the controlled buys from Appellant. Det. Boerstler testified that he was

assigned to the Central Ohio Drug Enforcement Task Force ("CODE"). (T. at 41). Det.

Boerstler testified that he met with McDonald prior to the June 29, 2021, controlled buy,

and that he searched McDonald and provided him with the money to make the buy. (T.

at 43). Det. Boerstler testified that following the controlled buy, he recovered some cash

and two ounces of methamphetamine which McDonald had purchased from Appellant.

Id.

{¶10} Det. Boerstler testified that he also similarly participated in the July 15,

2021, controlled buy. (T. at 50-51). Det. Boerstler testified that Appellant lived with his

girlfriend, Sydney McElfresh, and their daughter. (T. at 52). Det. Boerstler testified that

the juvenile heard in the recording crying in the background during the second controlled

buy is Appellant's daughter. (T. at 53). Licking County, Case No. 2022 CA 00040 5

{¶11} Det. Boerstler testified that on July 16, 2021, he obtained and executed a

search warrant for Appellant's residence located at 999 South 30th Street. (T. at 55). Det.

Boerstler testified that law enforcement officers recovered two firearms, psilocybin

mushrooms, a clear plastic container of methamphetamine, and currency from

Appellant's residence. (T. at 56). Det. Boerstler noted that Mrs. McElfresh and Appellant's

juvenile daughter were present at the execution of the search warrant. Id.

{¶12} The court next heard from Mark Hiatt, a lab director at the Central Ohio

Regional Crime Lab. (T. at 75). Hiatt tested the containers of the substances recovered

from the controlled buys, and found that they contained 50.676 grams of

methamphetamine from the June 29, 2021, purchase, and 55.895 grams and 51.510

grams of methamphetamine from the July 15, 2021, purchase. (T. at 79-82). Hiatt also

tested items recovered from the execution of the search warrant and found a bag

containing mushrooms had 1.796 grams of psilocybin mushrooms and a bag of .078

grams of methamphetamine. (T. at 83).

{¶13} Detective Jarod Conley of the Newark Police Department testified that he

was assigned to the CODE, and assisted in the execution of the search warrant. (T. at

90). He testified that he took photographs of Appellant's residence and seized items,

which the State introduced as evidence. (T. at. 90-94).

{¶14} Detective Adam Hoskinson of the Licking County Sheriff's Office testified

that he was also assigned to CODE and that he participated in the search of Appellant's

apartment, wherein he recovered an assault rifle from behind the headboard in the

bedroom, and a handgun under the bed. (T. at 95-97). Licking County, Case No. 2022 CA 00040 6

{¶15} Detective Justin Woodyard of the Licking County Sheriff’s Office, also

assigned to CODE, testified that he assisted in the search of the residence, and that he

recovered currency from an Isaiah Dooley who was in the process of exiting Appellant's

residence, and the recovered currency included pre-marked money from the controlled

buys. (T. at 101-102).

{¶16} Following Det. Woodyard's testimony the State rested. Appellant moved for

a directed verdict under Criminal Rule 29 as to all counts. (T. at 105). The trial court

denied Appellant's Rule 29 motion. (T. at 113).

{¶17} Appellant did not testify or call any witnesses. (T. at 115).

{¶18} After the close of evidence, the trial court found Appellant guilty on all

counts. The trial court granted the Forfeiture Specification (U.S. Currency), and denied

the Forfeiture Specifications for Firearms. (Judgment Entry, April 5, 2022).

{¶19} The court deferred sentencing pending the preparation of a presentence

investigation report.

{¶20} On May 19, 2022, the trial court sentenced Appellant to indeterminate

prison terms of five (5) to seven and one half (7 ½ ) years on Counts One and Two, a

prison term of one (1) year on Count Three, and a prison term of one (1) year on Count

Four, all of which were ordered to run concurrently, for an aggregate indeterminate prison

term of five (5) to seven and one half (7 ½ ) years in the state penitentiary. (Judgment

Entry, May 19, 2022). The court also imposed a mandatory term of post-release control

of two (2) to five (5) years.

{¶21} Appellant did not object to his indeterminate prison sentence at sentencing.

{¶22} Appellant now appeals, raising the following assignments of error: Licking County, Case No. 2022 CA 00040 7

ASSIGNMENTS OF ERROR

{¶23} “I. APPELLANT'S DUE PROCESS RIGHTS WERE VIOLATED WHEN A

DRUG TRAFFICKING CONVICTION WAS ELEVATED TO A FIRST DEGREE FELONY

BASED ON A FINDING THAT THERE WAS A JUVENILE IN THE VICINITY THAT WAS

NOT SUPPORTED BY SUFFICIENT EVIDENCE

{¶24} “II. APPELLANT'S CONVICTIONS FOR AGGRAVATED DRUG

TRAFFICKING IN COUNTS ONE AND TWO WERE NOT SUPPORTED BY THE

WEIGHT OF THE EVIDENCE

{¶25} “II. INDEFINITE PRISON TERMS IMPOSED UNDER THE REAGAN

TOKES LAW VIOLATE THE JURY TRIAL GUARANTEE, THE DOCTRINE OF

SEPARATION OF POWERS, AND DUE PROCESS PRINCIPLES UNDER THE

FEDERAL AND STATE CONSTITUTIONS.”

I., II.

{¶26} In his first and second Assignments of Error, Appellant argues his drug

trafficking convictions were against the manifest weight and sufficiency of the evidence.

We disagree.

{¶27} The legal concepts of sufficiency of the evidence and weight of the evidence

are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380,

1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review for

a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio St.3d

259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio Supreme

Court held, “An appellate court's function when reviewing the sufficiency of the evidence

to support a criminal conviction is to examine the evidence admitted at trial to determine Licking County, Case No. 2022 CA 00040 8

whether such evidence, if believed, would convince the average mind of the defendant's

guilt beyond a reasonable doubt. The 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.”

{¶28} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “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 overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387.

Reversing a conviction as being against the manifest weight of the evidence and ordering

a new trial should be reserved for only the “exceptional case in which the evidence weighs

heavily against the conviction.” Id.

{¶29} Appellant herein is challenging his convictions on two counts of Aggravated

Trafficking in Methamphetamine, in violation of R.C. §2925.03(A)(1)(C)(1)(d), which

provides, in relevant part:

{¶30} (A) No person shall knowingly do any of the following:

(1) Sell or offer to sell a controlled substance or a controlled

substance analog;

***

(C) Whoever violates division (A) of this section is guilty of one of the

following: Licking County, Case No. 2022 CA 00040 9

(1) If the drug involved in the violation is any compound, mixture,

preparation, or substance included in schedule I or schedule II, with the

exception of marihuana, cocaine, L.S.D., heroin, any fentanyl-related

compound, hashish, and any controlled substance analog, whoever violates

division (A) of this section is guilty of aggravated trafficking in drugs. The

penalty for the offense shall be determined as follows:

(d) Except as otherwise provided in this division, if the amount of the

drug involved equals or exceeds five times the bulk amount but is less than

fifty times the bulk amount, aggravated trafficking in drugs is a felony of the

second degree, and the court shall impose as a mandatory prison term a

second degree felony mandatory prison term. If the amount of the drug

involved is within that range and if the offense was committed in the vicinity

of a school, in the vicinity of a juvenile, or in the vicinity of a substance

addiction services provider or a recovering addict, aggravated trafficking in

drugs is a felony of the first degree, and the court shall impose as a

mandatory prison term a first degree felony mandatory prison term.

{¶31} Pursuant to R.C. §2925.01(BB),

An offense is “committed in the vicinity of a juvenile” if the offender

commits the offense within one hundred feet of a juvenile or within the view

of a juvenile, regardless of whether the offender knows the age of the

juvenile, whether the offender knows the offense is being committed within Licking County, Case No. 2022 CA 00040 10

one hundred feet of or within view of the juvenile, or whether the juvenile

actually views the commission of the offense.

{¶32} Appellant herein argues that the state of Ohio failed to prove that the

transactions occurred within view of a juvenile, or that the juvenile actually viewed the

transactions, or that the juvenile was within one hundred feet of the transaction.

(Appellant’s Brief at 6-7).

{¶33} Upon review of the record, we find that the State presented testimony from

the confidential informant, Det. McDonald, Det. Thomas and Det. Boerstler with regard to

both the June 29th and July 15th controlled buys. The audio recordings made during both

transactions were played for the trial court during which a child could be heard crying.

The witnesses identified the crying child as Appellant’s infant daughter.

{¶34} The juvenile-in-the-vicinity cases cited by Appellant each deal with

situations where the child was present when a search warrant or an arrest was made but

not when the drug transactions occurred. We therefore find they are inapplicable to the

instant case as the child herein was present in the apartment when the drug transactions

were taking place.

{¶35} We further find that the confidential information clearly identified Appellant

as the person from whom he purchased the methamphetamine. While Appellant argues

that the informant was not a reliable witness, having a long criminal history, issues relating

to the credibility of the witnesses and the weight to be given to the evidence are primarily

for the trier of fact. Seasons Coal v. Cleveland, 10 Ohio St.3d 77, 461 N.E.2d 1273 (1984).

{¶36} Finally, we find that the lab director testified as to the bulk weights of the

drugs, 50.675 grams in the June 29th buy and 107.405 grams in the July 15th buy. Licking County, Case No. 2022 CA 00040 11

{¶37} Based on the foregoing, we find that the state of Ohio presented sufficient

evidence to support a conviction in this matter. We further find that the trial court did not

lose its way or create a miscarriage of justice in finding Appellant guilty of aggravated

trafficking of methamphetamine with enhancements.

{¶38} Appellant’s first and second assignments of error are overruled.

III.

{¶39} In his third assignment of error, Appellant challenges the constitutionality of

the Reagan Tokes Act, specifically R.C. §2967.271, which codified hybrid indefinite prison

terms for first and second-degree felonies. Appellant argues that the Act violates the

separation of powers doctrine, the constitutional right to trial by jury, due process and

equal protection.

{¶40} We first note that pursuant to State v. Maddox, Ohio St.3d, 2022-Ohio-764,

N.E.3d, the Ohio Supreme Court held that constitutional challenges to the Reagan Tokes

Act are ripe for review on direct appeal.

{¶41} In State v. Householder, 5th Dist. Muskingum No. CT2021-0026, 2022-

Ohio-1542, this Court set forth its position on the arguments raised in Appellant's fourth

Assignment of Error:

For the reasons stated in the dissenting opinion of The Honorable W.

Scott Gwin in State v. Wolfe, 5th Dist. Licking No. 2020CA00021, 2020-

Ohio-5501, we find the Reagan Tokes Law does not violate Appellant's

constitutional rights to trial by jury and due process of law, and does not

violate the constitutional requirement of separation of powers. We hereby

adopt the dissenting opinion in Wolfe as the opinion of this Court. In so Licking County, Case No. 2022 CA 00040 12

holding, we also note the sentencing law has been found constitutional by

the Second, Third, Sixth, and Twelfth Districts, and also by the Eighth

District sitting en banc. See, e.g., State v. Ferguson, 2nd Dist. Montgomery

No. 28644, 2020-Ohio-4153; State v. Hacker, 3rd Dist. Logan No. 8-20-01,

2020-Ohio-5048; State v. Maddox, 6th Dist. Lucas No. L-19-1253, 2022-

Ohio-1350; State v. Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-

Ohio-3837; State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-

470. Further, we reject Appellant's claim the Reagan Tokes Act violates

equal protection for the reasons stated in State v. Hodgkin, 12th Dist.

Warren No. CA2020-08-048, 2021-Ohio-1353.

{¶42} Based on the forgoing authority, the trial court did not err in sentencing

Appellant to an indefinite non-life term.

{¶43} Appellant’s third assignment of error is overruled.

{¶44} The judgment of the Court of Common Pleas of Licking County, Ohio, is

affirmed

By: Wise, P. J. Delaney, J., and Baldwin, J., concur.

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