[Cite as State v. Johnson, 2016-Ohio-5611.]


                                       COURT OF APPEALS
                                    RICHLAND 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-                                          :
                                              :
CARL E. JOHNSON, JR.                          :     Case No. 15-CA-114
                                              :
        Defendant-Appellant                   :     OPINION




CHARACTER OF PROCEEDING:                            Appeal from the Court of Common
                                                    Pleas, Case No. 2015CR0585




JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   August 26, 2016




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

DANIEL M. ROGERS                                    JOHN A. BOYD
38 South Park Street                                1 Marion Avenue
Mansfield, OH 44902                                 Suite 215
                                                    Mansfield, OH 44903
Richland County, Case No. 15-CA-114                                                      2

Farmer, P.J.

       {¶1}    On July 10, 2015, the Richland County Grand Jury indicted appellant, Carl

Johnson, Jr., on six counts of trafficking (cocaine, heroin, and marijuana) in violation of

R.C. 2925.03, three counts of drug possession (cocaine, heroin, and marijuana) in

violation of R.C. 2925.11, and one count of having weapons while under disability in

violation of R.C. 2923.13.    Said charges arose from controlled drug buys between

appellant and a confidential informant on March 17, and 30, 2015, and May 27, 2015,

and a subsequent search of appellant's apartment on May 28, 2015, via a search

warrant.

       {¶2}    On August 14, and September 4, 2015, appellant filed a motion to

suppress and a supplemental motion to suppress. Appellant sought to suppress the

evidence seized from the apartment and his statements made to police officers. A

hearing was held on October 30, 2015. By judgment entry filed November 10, 2015, the

trial court denied the motion, upholding the search warrant and finding appellant had

received his rights and had waived them

       {¶3}    A jury trial commenced on November 30, 2015. The jury found appellant

guilty as charged. By judgment entry filed December 4, 2015, the trial court merged

some of the counts and sentenced appellant to a total aggregate term of twenty-four

years in prison.

       {¶4}    Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:
Richland County, Case No. 15-CA-114                                      3


                                       I

      {¶5}   "MR. JOHNSON'S CONVICTIONS WERE AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE, SO THEY MUST BE REVERSED AND THE CASE

REMANDED FOR A NEW TRIAL."

                                       II

      {¶6}   "THE   TRIAL   COURT     ERRED   BY   FAILING   TO   SUPPRESS

APPELLANT'S STATEMENTS, TO WHICH OFFICERS TESTIFIED DURING THE

TRIAL, WHERE APPELLANT TESTIFIED THAT HE MADE THOSE STATEMENTS

WITHOUT HAVING BEEN READ HIS MIRANDA WARNINGS AND WHERE

APPELLANT WAS QUESTIONED BY LAW ENFORCEMENT WHILE UNDER

DETENTION."

                                      III

      {¶7}   "DEFENSE COUNSEL RENDERED INEFFECTIVE ASSISTANCE AS

FOLLOWS: 1) THE STATE'S WITNESS, DURING CROSS-EXAMINATION, WAS

PROMPTED BY DEFENSE TO READ APPELLANT'S INCULPATORY STATEMENTS

INTO THE RECORD, VERBATIM, FROM THE OFFICER'S SUPPLEMENTAL

NARRATIVE POLICE REPORT; 2) DEFENSE COUNSEL FAILED TO QUESTION THE

CONFIDENTIAL INFORMANT AS TO WHETHER THE CONFIDENTIAL INFORMANT

TAMPERED WITH THE EVIDENCE COLLECTED DURING CONTROLLED BUYS

WHEN THE VALUE OF THE DRUGS SOLICITED WAS $100 BUT THE VALUE OF

THE DRUGS COLLECTED WAS $20; 3) DEFENSE COUNSEL DID NOT MOVE FOR

SPECIFIC DISCOVERY SEEKING TEXT MESSAGES BETWEEN THE STATE AND

APPELLANT; 4) DEFENSE COUNSEL DID NOT QUESTION ANY OF THE STATE'S
Richland County, Case No. 15-CA-114                                                    4


WITNESSES CONCERNING TOUCH DNA OF THE FIREARM; 5) DEFENSE

COUNSEL CONFUSED THE JURY AND UNDERMINED THE CREDIBILITY OF THE

THEORY OF THE DEFENSE CASE DURING CLOSING ARGUMENT BY A)

REFERENCING THAT THE CHILDREN IN HIS FAMILY THINK IT'S TIME FOR HIM

TO QUIT PRACTICING LAW, B) COMPARING THE CONFIDENTIAL INFORMANT IN

THE CASE TO JUDAS, BENEDICT ARNOLD AND MATA HARI, C) MAKING

DISTRACTING LITERARY REFERENCES THROUGHOUT CLOSING ARGUMENT, D)

INSINUATING THAT THE POLICE FABRICATED EVIDENCE WITHOUT ANY PROOF

WHATSOEVER OF THE SAME, AND E) MOST SIGNIFICANTLY, BY TELLING THE

JURY THAT THEY ARE MISSING EVIDENCE – THE VERY EVIDENCE THAT THE

TRIAL JUDGE RULED WAS INADMISSIBLE – WHICH DREW AN OBJECTION BY

THE STATE DURING CLOSING ARGUMENT."

                                            I

      {¶8}   Appellant claims his convictions were against manifest weight of the

evidence as the testimony of the confidential informant was not credible, and there was

no proof that he was a resident of the searched premises. We disagree.

      {¶9}   On review for manifest weight, a reviewing court is to examine the entire

record, weigh the evidence and all reasonable inferences, consider the credibility of

witnesses and determine "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 a new trial ordered." State v. Martin, 20 Ohio App.3d 172, 175 (1st

Dist.1983). See also, State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. The

granting of a new trial "should be exercised only in the exceptional case in which the
Richland County, Case No. 15-CA-114                                                    5

evidence weighs heavily against the conviction." Martin at 175. We note circumstantial

evidence is that which can be "inferred from reasonably and justifiably connected facts."

State v. Fairbanks, 32 Ohio St.2d 34 (1972), paragraph five of the syllabus.

"[C]ircumstantial evidence may be more certain, satisfying and persuasive than direct

evidence." State v. Richey, 64 Ohio St.3d 353, 1992-Ohio-44. It is to be given the

same weight and deference as direct evidence. State v. Jenks, 61 Ohio St.3d 259

(1991).

                                 COUNTS 1, 3, AND 8

      {¶10} Appellant was convicted on Counts 1, 3, 8 of trafficking in cocaine, heroin,

and marijuana in violation of R.C. 2925.03(A)(2) which states:



      (A) No person shall knowingly do any of the following:

      (2) Prepare for shipment, ship, transport, deliver, prepare for distribution,

      or distribute a controlled substance or a controlled substance analog,

      when the offender knows or has reasonable cause to believe that the

      controlled substance or a controlled substance analog is intended for sale

      or resale by the offender or another person.



      {¶11} These counts stem from the execution of the search warrant at 373

Jennings Avenue, Apartment C, Mansfield, Ohio.          Numerous items found on the

premises were items generally associated with drug trafficking. T. at 233-243, 246-248,

251-252, 330-349, 565-571. Appellant admitted to the police officers that he was the

sole resident of the apartment, and his personal items were located throughout the
Richland County, Case No. 15-CA-114                                                    6


apartment.    T. at 244, 246-247, 303-304, 498-504; State's Exhibits 59 and 60.

Appellant also sent a letter to a friend, Brianna Daniels, encouraging her to lie about

where he lived. T. at 620-621, 623; State's Exhibit 48.

                                 COUNTS 4, 5, AND 6

      {¶12} Appellant was convicted on Counts 4, 5, and 6 of trafficking in heroin in

violation of R.C. 2925.03(A)(1) which states: "[n]o person shall knowingly do any of the

following:***[s]ell or offer to sell a controlled substance or a controlled substance

analog."

      {¶13} These counts stem from the controlled buys to the confidential informant,

Bobbi Stone, on March 17, and 30, 2015, and May 27, 2015. Appellant specifically

challenges the informant's credibility. Bobbi Stone testified to the procedures used for

the controlled buys, and testified she purchased heroin from appellant on the

aforementioned dates. T. at 389-406, 410-421, 425-426, 441-447. The telephone calls

between appellant and Ms. Stone, as well as the controlled buys, were recorded, and

the recordings were played to the jury. State's Exhibits 32-34 and 63-66. Each time,

Ms. Stone identified appellant as the individual who sold her the heroin. T. at 393, 403,

410, 414, 425-426; State's Exhibit 49.

      {¶14} Ms. Stone's testimony was corroborated by the police officers. Mansfield

Police Department Sergeant Steve Blust and Ashland Police Department Officer Brian

Evans, both working for the Metrich Enforcement Unit, a drug task force, testified to the

procedures used and to listening to and observing the telephone calls between

appellant and Ms. Stone and monitoring the controlled buys between the two. T. at

205-219, 223-226, 317-328.
Richland County, Case No. 15-CA-114                                                    7


                                        COUNT 10

       {¶15} Appellant was convicted on Count 10 of having weapons under disability

in violation of R.C. 2923.13(A)(3) which states:



       (A) Unless relieved from disability under operation of law or legal process,

       no person shall knowingly acquire, have, carry, or use any firearm or

       dangerous ordnance, if any of the following apply:

       (3) The person is under indictment for or has been convicted of any felony

       offense involving the illegal possession, use, sale, administration,

       distribution, or trafficking in any drug of abuse or has been adjudicated a

       delinquent child for the commission of an offense that, if committed by an

       adult, would have been a felony offense involving the illegal possession,

       use, sale, administration, distribution, or trafficking in any drug of abuse.



       {¶16} Appellant admitted to being the sole resident of the apartment. T. at 244.

A firearm was found in a bedroom, and appellant's prior conviction for a felony drug

trafficking offense was stipulated to in the record. T. at 249, 514-517, 529, 595-598;

State's Exhibit 30.

       {¶17} Upon review, we find sufficient credible evidence to support the

convictions and find no manifest miscarriage of justice.

       {¶18} Assignment of Error I is denied.
Richland County, Case No. 15-CA-114                                                           8


                                               II

       {¶19} Appellant claims the trial court erred in denying his motion to suppress

statements made to police officers, as the trial court erred in finding he was advised of

his constitutional rights to remain silent and waived those rights. We disagree.

       {¶20} There are three methods of challenging on appeal a trial court's ruling on a

motion to suppress. First, an appellant may challenge the trial court's findings of fact.

In reviewing a challenge of this nature, an appellate court must determine whether said

findings of fact are against the manifest weight of the evidence. State v. Fanning, 1

Ohio St.3d 19 (1982); State v. Klein, 73 Ohio App.3d 486 (4th Dist.1991); State v.

Guysinger, 86 Ohio App.3d 592 (4th Dist.1993). Second, an appellant may argue the

trial court failed to apply the appropriate test or correct law to the findings of fact. In that

case, an appellate court can reverse the trial court for committing an error of law. State

v. Williams, 86 Ohio App.3d 37 (4th Dist.1993).          Finally, assuming the trial court's

findings of fact are not against the manifest weight of the evidence and it has properly

identified the law to be applied, an appellant may argue the trial court has incorrectly

decided the ultimate or final issue raised in the motion to suppress. When reviewing

this type of claim, an appellate court must independently determine, without deference

to the trial court's conclusion, whether the facts meet the appropriate legal standard in

any given case. State v. Curry, 95 Ohio App.3d 93 (8th Dist.1994); State v. Claytor, 85

Ohio App.3d 623 (4th Dist.1993); Guysinger. As the United States Supreme Court held

in Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 1663 (1996), "…as a general matter

determinations of reasonable suspicion and probable cause should be reviewed de

novo on appeal."
Richland County, Case No. 15-CA-114                                                     9


       {¶21} The gravamen of this assignment is whether there were sufficient credible

facts to substantiate the trial court's decision that appellant received his Miranda

warnings and waived them. In its November 10, 2015 judgment entry denying the

motion to suppress, the trial court found the following:



              As to the second issue. Detective Steven Blust and Detective Brian

       Evans both testified that the defendant was given his Miranda warnings

       and testified that the defendant indicates that he understood his rights

       prior to speaking to Detective Blust. The defendant testified and denied

       being read his Miranda warnings and denied saying anything incriminating

       to the officers. The court heard the testimony and finds Detective Blust

       and Detective Evans to be credible. Accordingly, the court finds that the

       defendant was given his Miranda warnings.

              As to the issue of voluntariness of the defendant's statements the

       court finds those statements were given voluntarily by the defendant after

       considering a totality of the circumstances including, but not limited to, the

       age of the defendant, his prior criminal experience with law enforcement,

       the fact that he did not appear to be intoxicated or under the influence,

       and the lack of any evidence of threats, or physical deprivation or

       mistreatment by the officers.



       {¶22} During the suppression hearing, both Sergeant Blust and Officer Evans

testified appellant was read his Miranda rights, he acknowledged he understood them,
Richland County, Case No. 15-CA-114                                                     10


and he waived his rights as he was willing to talk to the officers. October 30, 2015 T. at

6-8, 18-19, 22-27. Appellant testified he was not read his rights, and he did not make

any statements to the police officers other than stating he did not live in the apartment,

he was on his way out to buy coffee, and he asked for a cigarette.           Id. at 33-35.

Appellant admitted he was not under the influence of anything, he did not have any

problems understanding what people are saying to him, and he understood everything

that was happening that day. Id. at 34-35.

       {¶23} We note the weight to be given to the evidence and the credibility of the

witnesses are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d 182 (1990).

The trier of fact "has the best opportunity to view the demeanor, attitude, and credibility

of each witness, something that does not translate well on the written page." Davis v.

Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260.

       {¶24} We find the testimonies of Sergeant Blust and Officer Evans support the

trial court's conclusions.

       {¶25} Upon review, we find the trial court did not err in denying appellant's

motion to suppress his statements to police officers.

       {¶26} Assignment of Error II is denied.

                                             III

       {¶27} Appellant claims he was denied the effective assistance of trial counsel as

his counsel caused appellant's inculpatory statements to be read into the record, failed

to effectively cross-examine the informant on tampering with the controlled buys, failed

to request discovery on text messages between appellant and the informant, failed to
Richland County, Case No. 15-CA-114                                                    11


question the lack of DNA evidence on the weapon, and failed to cohesively argue during

closing argument. We disagree.

      {¶28} The standard this issue must be measured against is set out in State v.

Bradley, 42 Ohio St.3d 136 (1989), paragraphs two and three of the syllabus. Appellant

must establish the following:



             2. Counsel's performance will not be deemed ineffective unless and

      until counsel's performance is proved to have fallen below an objective

      standard of reasonable representation and, in addition, prejudice arises

      from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2

      O.O.3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S.

      668, 104 S.Ct. 2052, 80 L.Ed.2d 674, followed.)

             3. To show that a defendant has been prejudiced by counsel's

      deficient performance, the defendant must prove that there exists a

      reasonable probability that, were it not for counsel's errors, the result of

      the trial would have been different.



      {¶29} This court must accord deference to defense counsel's strategic choices

made during trial and "requires us to eliminate the distorting effect of hindsight." State

v. Post, 32 Ohio St.3d 380, 388 (1987).

                            INCULPATORY STATEMENTS

      {¶30} Appellant argues his counsel erred in causing his inculpatory statements

to be read into the record by Sergeant Blust via his supplemental report. On direct,
Richland County, Case No. 15-CA-114                                                       12


Sergeant Blust testified to observing cocaine and heroin being removed from appellant's

person as "he was stuffing it down his butt." T. at 240-241, 242; State's Exhibit 17 and

18. On cross-examination, defense counsel questioned Sergeant Blust on this issue

because of some discrepancies between his trial testimony and his testimony during the

suppression hearing e.g., whether some drugs were removed from appellant's "butt" or

from his pants as he tried to stuff a bag down his pants. T. at 273-279; October 30,

2015 T. at 6-7, 19. On recross-examination, defense counsel asked Sergeant Blust to

read from his report regarding his observations of appellant and a large shopping bag

he was attempting to stuff down his pants. T. at 310-311. It involved a legitimate

discrepancy going to the witness's credibility. The reading of the report provided no

new testimony to the case, as Sergeant Blust had already testified to appellant's

statements therein. T. at 244.

                        CROSS-EXAMINATION ON TAMPERING

       {¶31} Appellant argues his counsel failed to effectively cross-examine the

informant on tampering with the controlled buys.        It is important to note the actual

transactions were recorded and played to the jury. State's Exhibits 32-34 and 63-66.

Sergeant Blust, who prepared the informant for the buys and heard and observed the

buys, testified to the procedures used during the controlled buys and the actual buys

involving appellant and Ms. Stone. T. at 205-219, 223-226. Appellant also challenges

the informant's credibility by claiming she was using "Craigslist" in a prostitution sting. A

review of the record demonstrates defense counsel cross-examined Ms. Stone on this

issue. T. at 437-438.
Richland County, Case No. 15-CA-114                                                    13


                            DISCOVERY ON TEXT MESSAGES

       {¶32} Appellant argues his counsel failed to request discovery on text messages

between he and the informant. Evidence was presented that the text messages were

not preserved. T. at 227.

                                DNA ON THE WEAPON

       {¶33} Appellant argues his counsel should have pursued the issue of DNA

evidence on the firearm. Defense counsel cross-examined Sergeant Blust on the lack

of any evidence testing on the firearm and any evidence as to ownership, as the firearm

was discovered inside a purse. T. at 279, 282-283.

                                CLOSING ARGUMENT

       {¶34} Appellant argues his counsel did not present a cohesive closing argument.

The defense theory of the case was that appellant was but a guest in Apartment C and

he did not have any knowledge of the drugs and the firearm found in the apartment, and

the informant gave contrived testimony. T. at 179. Defense counsel's closing argument

centered on the basic premise of the defense's case e.g., the lack of credibility or

forthrightness of the informant, an attack on Mansfield Police Officer Perry Wheeler

collecting critical evidence when he arrived at the apartment a half-hour after the search

had started, the issue of concealed drugs on appellant's person, and the lack of proof

that appellant lived in Apartment C. T. at 714-718, 722-727, 728-729, 731-732, 734-

735, 737-739.

       {¶35} Defense counsel's reference to his discussion with his adult daughters

resulted in his argument that he (defense counsel) was there "to try to do, the right

thing." T. at 714.
Richland County, Case No. 15-CA-114                                           14


      {¶36} Upon review, we fail to find any deficiency by defense counsel as

complained herein.

      {¶37} Assignment of Error III is denied.

      {¶38} The judgment of the Court of Common Pleas of Richland County, Ohio is

hereby affirmed.

By Farmer, P.J.

Hoffman, J. and

Delaney, J. concur.




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