[Cite as State v. Parker, 2018-Ohio-3302.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                    Court of Appeals No. L-17-1052

        Appellee                                 Trial Court No. CR0201601776

v.

Robert D. Parker, III                            DECISION AND JUDGMENT

        Appellant                                Decided: August 17, 2018

                                             *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

        George J. Conklin, for appellant.

                                             *****

        OSOWIK, J.

        {¶ 1} This is an appeal from a January 25, 2017 judgment of the Lucas County

Court of Common Pleas, finding appellant guilty of five felony offenses. This case stems

from the discovery of a significant quantity of unlawful drugs and a firearm in appellant’s
possession following a lawful traffic stop of a motor vehicle in which appellant was a

passenger. For the reasons set forth below, we affirm the judgment of the trial court.

       {¶ 2} On April 26, 2016, appellant was indicted on five counts: Count 1—having

a weapon while under a disability, in violation of R.C. 2923.13(A)(2), a third-degree

felony, Count 2—possession of heroin, in violation of R.C. 2925.11(A), a fourth-degree

felony, Count 3—trafficking in heroin, in violation of R.C. 2925.03(A)(2), a fourth-

degree felony, Count 4—possession of cocaine, in violation of R.C. 2925.11(A), a fourth-

degree felony, and Count 5—trafficking in cocaine, in violation of R.C. 2925.03(A)(2), a

fourth-degree felony.

       {¶ 3} On August 15, 2016, appellant filed a motion to suppress the evidence

recovered during the search of his person and the vehicle during the traffic stop. On

November 7, 2016, the motion was denied. An evidentiary hearing determined that the

search conducted by the police was warranted.

       {¶ 4} On January 23, 2017, a three-day jury trial commenced. Appellant’s charges

for cocaine possession and trafficking (Counts 4 and 5) were amended to fifth-degree

felonies, in order to be in compliance with the newest Ohio Supreme Court standards in

Gonzales. On January 25, 2017, appellant was found guilty on all five charges.

       {¶ 5} On February 9, 2017, appellant was sentenced to an 18-month term of

incarceration for the weapon under a disability charge. The court merged the possession

and trafficking of heroin charges and sentenced appellant to a 12-month term of

incarceration. Likewise, the court merged the possession and trafficking of cocaine




2.
charges and sentenced appellant to a 12-month term of incarceration. The sentences were

ordered to be served concurrently.

         {¶ 6} Appellant, Robert D. Parker, sets forth the following seven assignments of

error:

                I. The trial court erred in failing to grant the appellant’s pre-trial

         motion to suppress.

                II. The failure of the court to grant the appellant’s motion to

         suppress prior to trial resulted in additional evidence and the statements of

         the appellant, which should be considered the fruit of the poisonous tree, to

         be admitted at the time of the trial thereby denying appellant a fair trial

         under the United States Constitution.

                III. Appellant’s convictions were not supported by a sufficiency of

         evidence.

                IV. The prosecution failed to prove the weight of the controlled

         substances involved in counts two through five of the indictment.

                V. The appellant was denied effective assistance of counsel, further

         denying him the right to due process, equal protection under the law and the

         right to a fair trial as guaranteed by the United States Constitution and the

         Fifth Amendment, Sixth Amendment, Eighth Amendment, Ninth

         Amendment, and Fourteenth Amendment, and those guaranteed under the

         Ohio Constitution.




3.
              VI. The cumulative effect of the errors committed by the trial court

       violated the appellant’s right to a fair trial and his constitutional rights to

       due process, the right to confront evidence and the right to be free from

       arbitrary, cruel and unusual punishment in contradiction to U.S.

       Constitution, Amendments V, VI, VII, IX and XIV and the privileges

       granted in the Ohio Constitution.

              VII. The jury verdict form was defective and as a consequence the

       failure results in reduction of the drug offenses to the lowest level of the

       offense charged.

       {¶ 7} The following undisputed facts are relevant to this appeal. On December 29,

2015, two Toledo police officers on patrol witnessed a vehicle unlawfully, abruptly

change lanes, cutting off another vehicle at a busy intersection in West Toledo. The

driver of the other vehicle was forced to slam on the brakes, screech the tires, and honk

his horn in a successful effort to avoid a collision. The officers initiated a traffic stop

given the marked lane violation that they witnessed.

       {¶ 8} Upon completing the traffic stop, the officers observed three men in the

vehicle. One officer approached the driver to inform him of the violation and request his

information, while another officer approached appellant in the passenger’s seat. The

officers noted this approach was a common safety precaution when stopping vehicles

with multiple passengers.




4.
       {¶ 9} Although appellant did not have any identification on his person, he

voluntarily disclosed his name and other personal information to the officer. The officers

ran a check on the names of everyone in the vehicle and discovered active felony arrest

warrants for appellant. Accordingly, the officers arrested and detained appellant.

       {¶ 10} Subsequently, additional officers arrived as backup. Appellant was

removed from the vehicle. A search of appellant’s person, incident to the arrest,

recovered a significant quantity of unlawful drugs and $484 in cash in his possession.

Multiple baggies of cocaine and heroin were found on appellant’s person, each about the

size of a golf ball.

       {¶ 11} One of the responding officers asked the driver for permission to search the

vehicle, which was voluntarily granted. Beneath appellant’s seat, the police found a

loaded .25 caliber firearm and a scale used in weighing and selling drugs. A dash camera

recording confirmed that the driver properly consented to the search, which resulted in

the discovery of the above-described items.

       {¶ 12} At trial, the testimony of two police officers established the propriety of the

underlying traffic stop, providing clear evidence of the traffic violation they had

observed. Additionally, their testimony demonstrated that all information provided by

appellant, as well as consent to search the vehicle, were given voluntarily.

       {¶ 13} Next, a detective testified regarding appellant’s interview subsequent to his

arrest. After being informed of his Miranda rights, appellant admitted to selling and




5.
possessing the unlawful drugs. Appellant further admitted that the gun found in the

vehicle belonged to him.

       {¶ 14} An analyst from the Toledo Police Crime Lab testified that the substances

found were heroin and cocaine. The bags with heroin weighed 2.76 and 2.06 grams, and

the bag of cocaine weighed 6.42 grams. Furthermore, an administrator from the Toledo

Police Crime Lab testified that the firearm recovered in the vehicle was operable.

       {¶ 15} At the conclusion of the trial, appellant’s Crim.R. 29 motion for acquittal

was denied. Thereafter, the jury returned a verdict finding appellant guilty on all five

charges. This timely appeal ensued.

       {¶ 16} In the first assignment of error, appellant asserts that the trial court erred in

denying his motion to suppress. Appellant suggests that there was impropriety in the

stopping of the vehicle, contending that the officers had, “no articulable reason to believe

any probable cause existed.” We do not concur.

       {¶ 17} Appellate review of a motion to suppress presents mixed questions of law

and fact. When considering a motion to suppress, the trial court assumes the role of trier

of fact. State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, ¶ 100.

The appellate court applies a de novo standard of review to determine whether the facts

satisfy the applicable legal standard, and must accept the trial court’s findings of fact so

long as the facts are supported by competent, credible evidence. Id.

       {¶ 18} When an officer can reasonably conclude one is committing a marked lanes

violation, the officer is justified in stopping the vehicle. State v. Mays, 119 Ohio St.3d




6.
406, 894 N.E.2d 1204, 2008-Ohio-4539, syllabus. When stopping such a vehicle, a

police officer is able to request identification and complete a computer check to verify

that information. State v. Debrossard, 4th Dist. Ross No. 13CA3395, 2015-Ohio-1054,

¶ 14. These actions do not constitute an unreasonable search and seizure, as a request for

identification is not facially unconstitutional, and is typically characterized as a

consensual encounter, not a custodial search. Id., citing State v. Osborne, 2d Dist.

Montgomery No. 15151, 1995 Ohio App. LEXIS 5452 (Dec. 13, 1995).

       {¶ 19} Here, the officers provided clear and convincing evidence that the driver

had committed a marked lane traffic violation through their testimony and the recording

corroborating the events. The officers lawfully stopped the vehicle and requested

information from appellant at the scene, which was voluntarily disclosed. Having

ascertained appellant’s identity and outstanding felony warrants, a lawful search led to

the discovery of appellant’s unlawful drugs and firearm. The trial court’s denial of

appellant’s motion to suppress was proper. Accordingly, appellant’s first assignment of

error is not well-taken.

       {¶ 20} In the second assignment of error, appellant asserts that the court’s denial

of the motion to suppress resulted in further dissemination of evidence that is “fruit of the

poisonous tree.” We do not concur.

       {¶ 21} Given our determination above, appellant’s second assignment of error,

which is contingent upon the propriety of the first assignment of error, is likewise found

not well-taken.




7.
       {¶ 22} In the third assignment of error, appellant asserts that his convictions were

not supported by sufficient evidence. We do not concur.

       {¶ 23} Whether there is sufficient evidence to support a conviction is a matter of

law. State v. Thompkins, 78 Ohio St.3d, 380, 386, 678 N.E.2d 541 (1997). In evaluating

a sufficiency of the evidence claim, “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.” State v.

Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. The

appellate court’s function is to examine the evidence admitted at trial such that, if it is

believed, it would reasonably convince the average mind of the defendant’s guilt. Id.

       {¶ 24} We now consider whether the evidence presented at trial was sufficient to

convict appellant. R.C. 2923.13 (A)(2) defines the offense of having a weapon while

under disability charge as, “Knowingly acquire, have, carry, or use any firearm or

dangerous ordnance, if: (2) the person is under indictment for or has been convicted of

any felony offense of violence * * *.”

       {¶ 25} The evidence is uncontested that appellant was under disability at the time

of his arrest. The police testified that the firearm was found under the seat where

appellant had been sitting. Consistently, appellant admitted that the firearm belonged to

him. The firearm was also found to be operable by the Toledo Police Crime Lab. Thus,

ample evidence was presented at trial to convince a reasonable juror of appellant’s guilt.




8.
       {¶ 26} R.C. 2925.11(A) establishes that, “No person shall knowingly obtain,

possess, or use a controlled substance * * *.” R.C. 2925.03(A)(2) establishes that,

              No person shall knowingly: (2) Prepare for shipment, ship,

       transport, deliver, prepare for distribution, or distribute a controlled

       substance * * * when the offender knows or has reasonable cause to believe

       that the controlled substance * * * is intended for sale or resale by the

       offender or another person.

       {¶ 27} The record reflects that the officers’ testimony, dash cam recording,

physical evidence removed from appellant’s person and the vehicle, and appellant’s

confession constituted ample evidence of drug possession and trafficking. The Toledo

Police Crime Lab verified that the substances were heroin and cocaine. The detective

testified that 2.76 and 2.06 grams of heroin and 6.42 grams of cocaine were packaged for

sale and vastly exceeded a personal use amount.

       {¶ 28} The record reflects that the evidence presented at trial was ample and

sufficient. Accordingly, appellant’s third assignment of error is not well-taken.

       {¶ 29} In the fourth assignment of error, appellant asserts that the prosecution

failed to prove the weight of the controlled substances involved in Counts 2 through 5 of

the indictment. Appellant suggests this resulted in an improper classification of the

offenses. We do not concur.




9.
       {¶ 30} Gonzales I required the state to prove the amounts and weight for cocaine

separate from any filler materials. State v. Gonzales, 150 Ohio St.3d 261, 2016-Ohio-

8319, 81 N.E.3d 405 (“Gonzales I”). Gonzales II vacated this ruling, returning to the

prior standard. Now, as it was before these cases, the total weight of the mixture of

substances controls the appropriate felony level. State v. Gonzales, 150 Ohio St.3d 276,

2017-Ohio-777, 81 N.E.3d 466. (“Gonzales II”).

       {¶ 31} This case arose during the time period between these two rulings.

Therefore, the cocaine offenses were initially charged in compliance with the incorrect

standard. The charges were later amended to become fifth-degree felonies, the lowest

possible degree for this offense, so as to prevent any non-compliance with the continuing

evolution of this standard. Charging these offenses at the lowest level was proper under

either Gonzales I or Gonzales II. Lastly, the Gonzales rulings only pertained to cocaine

offenses and have no bearing on the degree classification of heroin offenses, which were

correctly not amended from the original indictment.

       {¶ 32} Based upon the foregoing, we find that appellant’s charges for cocaine and

heroin possession and trafficking were properly classified. Accordingly, appellant’s

fourth assignment of error is not well-taken.

       {¶ 33} In the fifth assignment of error, appellant asserts a claim of ineffective

assistance of counsel for failure to effectuate meaningful plea agreements, failure to

properly conduct cross-examination, and failure to challenge the admissibility of the

evidence presented at trial. We do not concur.




10.
       {¶ 34} To establish ineffective assistance of counsel, appellant must demonstrate,

“(1) deficient performance by counsel, i.e., performance falling below an objective

standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability

that, but for counsel’s errors, the proceeding’s result would have been different.” State v.

Martin, 151 Ohio St.3d 470, 2017-Ohio-7556, 90 N.E.3d 857, ¶ 8, citing Strickland v.

Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

       {¶ 35} Trial counsel’s discretion to make objections and cross-examine witnesses

are regarded as trial strategy, and alone is not enough to establish ineffective assistance of

counsel. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 103;

State v. Hanna, 95 Ohio St.3d 285, 2002-Ohio-2221, 767 N.E.2d, 678, ¶ 118. Similarly,

an inability to effectuate meaningful plea negotiations does not constitute ineffective

assistance of counsel per se, as the state is not obliged to make any plea agreements. See

State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48.

       {¶ 36} The failure to make meritless objections on the admission of evidence

would not have resulted in a different outcome. Likewise, trial counsel’s tactical

determinations on plea agreements and cross-examination do not constitute deficient

actions that could arguably have altered the outcome. Accordingly, appellant’s fifth

assignment of error is not well-taken.

       {¶ 37} In the sixth assignment of error, appellant asserts that the cumulative effect

of the assigned errors, while perhaps insufficient to overturn convictions individually,




11.
violates his right to a fair trial and constitutes cause for reversal on a cumulative error

basis. We do not concur.

       {¶ 38} Under the doctrine of cumulative error, a conviction will be reversed when

the overall effect of errors in a trial deprives a defendant of a fair trial even though each

of the many instances of error does not individually necessitate reversal. State v. Powell,

132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 1211, ¶ 223.

       {¶ 39} Given our determinations above that appellant has failed to demonstrate

errors, cumulative error cannot be established in this case. Accordingly, appellant’s sixth

assignment of error is not well-taken.

       {¶ 40} In the seventh and final assignment of error, appellant asserts that the jury

verdict form was defective, as it did not state the degree of the offenses charged.

Appellant contends these improper classifications prejudiced him. We do not concur.

       {¶ 41} When there is no objection to a jury verdict form at trial, the issue is

subject to a plain error standard of review. State v. Eafford, 132 Ohio St.3d 159, 2012-

Ohio-2224, 970 N.E.2d 891, ¶ 11. It must be shown that this error resulted in a different

trial outcome, which would have been different but for the error. Id. at ¶ 19.

       {¶ 42} R.C. 2945.75(A)(2) establishes that when an element exists that would

make an offense of a more serious degree, “A guilty verdict shall state either the degree

of the offense * * *, or the element raising the degree. Otherwise, a guilty verdict

constitutes a finding of guilty of the least degree of the offense charged.”




12.
       {¶ 43} In the present case, the jury verdict form used in the trial court explicitly

cited the applicable subsections of code for each offense, which provided clarity as to the

degree of the offense. The cocaine possession and trafficking offenses were charged as

fifth-degree felonies, the lowest that can be charged. The heroin possession and

trafficking offenses cited to R.C. 2925.03 (C)(6)(c), in which a fourth-degree felony was

the lowest possible offense degree, was charged. Likewise, the having weapons under a

disability offense cited R.C. 2923.13, establishing the offense as a third-degree felony.

       {¶ 44} The verdict form cited the proper code subsections and thereby sufficiently

conveyed the degree classifications of the offenses. Appellant has failed to establish

prejudice as a result of the disputed jury verdict form. Accordingly, appellant’s seventh

assignment of error is not well-taken.

       {¶ 45} Based upon the foregoing, the judgment of the Lucas County Court of

Common Pleas is hereby affirmed. Appellant is ordered to pay the costs of this appeal

pursuant to App.R. 24.


                                                                         Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




13.
                                                                     State v. Parker
                                                                     C.A. No. L-17-1052




Thomas J. Osowik, J.                          _______________________________
                                                          JUDGE
James D. Jensen, J.
                                              _______________________________
Christine E. Mayle, P.J.                                  JUDGE
CONCUR.
                                              _______________________________
                                                          JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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