State v. Daboni

2018 Ohio 4155

STATE OF OHIO, Plaintiff-Appellee, v. JACQUES GOERGES K. DABONI, Defendant-Appellant.

Case No. 18CA3

Case No. 18CA4

Case No. 18CA5

COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT MEIGS COUNTY

October 5, 2018

DECISION AND JUDGMENT ENTRY

APPEARANCES:

Timothy Young, Ohio State Public Defender, and Katherine R. Ross-Kinzie, Assistant Ohio State Public Defender, Columbus, Ohio, for Appellant.

Jacques Goerges K. Daboni, Toledo, Ohio, Appellant, Pro Se.

James K. Stanley, Meigs County Prosecuting Attorney, Pomeroy, Ohio, for Appellee.

McFarland, J.

{¶1} Jacques Goerges K. Daboni appeals from the trial court's decision sentencing him to maximum and consecutive prison terms totaling thirty-two years after a jury found him guilty of six counts of trafficking in heroin in violation of R.C. 2925.03(A)(1) (which included five fifth-degree felony counts and one second-degree felony count), one count of trafficking in heroin in violation of R.C. 2925.03(A)(2), a second-degree felony, one count of possession of heroin in violation of R.C. 2925.11(A) and (C)(6)(a), a second-degree felony, and two counts of engaging in a pattern of corrupt activity in violation of R.C. 2923.32(A)(1), constituting one second-degree felony and one first-degree felony. On appeal, Appellant contends, through counsel, that 1) the trial court erred in failing to merge, for purposes of sentencing, offenses that had a similar import, arose from the same conduct, and were not committed separately or with a separate animus; 2) the verdicts on the counts of engaging in a pattern of corrupt activity were not supported by sufficient evidence; 3) his right to a fair trial and due process of law was violated; and 4) the imposition of maximum possible sentences on all counts is not clearly and convincingly supported by the record. Appellant also raises four additional pro se assignments of error, identified as pro se assignments of error five through eight, contending that 5) his trial counsel was ineffective for either waiving or failing to finish the suppression hearing; 6) his Fourth Amendment rights were violated when officers searched a residence located at 303 5^th Street, Racine, Ohio, without probable cause for Appellant's arrest and without a search warrant or consent to search; 7) the trial court erred and abused its discretion by failing to ensure Appellant had a full suppression hearing and that his constitutional rights were protected; and 8) he is actually innocent.

{¶2} After review, we find no merit to any of the pro se assignments of error raised by Appellant. Thus, they are all overruled. Further, with respect to the arguments raised by appellate counsel, because we find the trial court erred in failing to merge count four in case no. 14CR173, possession of heroin, with the already merged trafficking in heroin counts, identified as count three in case no. 14CR173 and count five in case no. 14CR232, Appellant's first assignment of error is sustained. Accordingly, we reverse the trial court's imposition of sentence on the second-degree possession of heroin count in case no. 14CR173 and remand this matter to the trial court with instructions as set forth below. Because we find Appellant's engaging in a pattern of corrupt activity convictions were supported by sufficient evidence and because we find the trial court did not commit plain error in failing to instruct the jury on the monetary threshold required in order to prove all of the elements of the offenses, Appellant's second assignment of error is overruled.

{¶3} Further, as we found no abuse of discretion on the part of the trial court in denying Appellant's multiple motions for mistrial, and found no cumulative error, Appellant's third assignment of error is overruled. Finally, in light of our determination that Appellant's combined sentences, which constituted the maximum possible sentence of thirty-two years in prison, were not contrary to law and were supported by the record, Appellant's fourth and final assignment of error is overruled. Our resolution of Appellant's fourth assignment of error is, however, qualified by our disposition of Appellant's first assignment error, which reversed the imposition of the eight-year prison term imposed for the sole count of possession of heroin. Thus, after remand, the total length of Appellant's combined sentences will be reduced from thirty-two years to twenty-four years. Accordingly, this matter is affirmed in part, reversed in part, and remanded with instructions.

FACTS

{¶4} The record reveals that Appellant, Jacques Goerges K. Daboni, was indicted on September 23, 2014, in case no. 14CR173 in the Meigs County Court of Common Pleas on multiple felonies, which included three counts of trafficking in heroin, one count of possession of heroin, and one count of engaging in a pattern of corrupt activity. Another indictment was filed in the Meigs County Court of Common Pleas on December 18, 2014, case no. 14CR232, charging Appellant with the commission of five additional felonies, which included five more counts of trafficking in heroin. Thereafter, an additional indictment was filed on March 17, 2015, case no. 15CR023, charging Appellant with an additional count of engaging in a pattern of corrupt activity, a second-degree felony.

{¶5} The charges stemmed from the execution of an arrest warrant upon Jeremy Burgess at 303 5^th Street, Racine, Ohio, on September 4, 2014, at a residence believed to be owned by Chad Diddle and leased to Appellant. Upon entering the residence to arrest Burgess, law enforcement observed multiple baggies of what appeared to be heroin laying in plain view on a table inside the residence in the room where Burgess was located. A search warrant was subsequently issued and a search of the entire residence was conducted, which yielded additional drugs. According to the "More Particular Bill of Particulars" filed in case no. 14CR173, two controlled buys of heroin took place between confidential informants and Chad Diddle, who was working for Appellant. The bill further described the search of the residence owned by Diddle, but rented by Appellant, which occurred on September 4, 2014, and which resulted in the discovery of 45.84 grams of heroin, part of which had been individually packaged for sale and part of which was in ball form. One of the trafficking in heroin charges as well as the possession of heroin charges stemmed from the results of this search. The bill further described the basis for the engaging in a pattern of corrupt activity charge as follows:

"The purpose of the illicit enterprise is to make money for Jacques Daboni, a.k.a. "Jock." Daboni set up a drug ring in Meigs County, Ohio to distribute heroin. Daboni recruited local heroin users and other individuals to become his 'runners' and sell heroin on his behalf. Members of the enterprise include, but are not limited to, Jacques Daboni, Chad Diddle, Amber Duffy, Jeremy Burgess, and Theodore Brown.

Daboni would purchase heroin in bulk from areas like Columbus, Ohio and transport to it [sic] Meigs County, Ohio. Once in Meigs County, the heroin would then be divided up into smaller quantities for re-selling.

Daboni recruited Chad Diddle to sell heroin for Daboni. Diddle, in return, would get heroin as payment for selling on behalf of Daboni. Chad Diddle owns a house located at 303 5^thStreet, Racine, Ohio 45771. Daboni rented that residence as a primary spot to distribute heroin to his runners to be resold throughout Meigs County, Ohio. Daboni would also have Diddle pay some of the utility bills on his behalf. Daboni purchased cattle with his drug money and kept them on Diddle's land. On or about 7.28.14 Diddle sold .22g of heroin for Daboni. On or about 8.16.14 Diddle sold 1.99g of heroin for Daboni.

Daboni had an electronic key code lock put on the door of the residence so his runners could access the heroin and continue to sell it on his behalf.

On 9/04/14, law enforcement searched Daboni's residence at 303 5^th st. [sic] Racine, Ohio, 45771 and found 36 individually wrapped baggies of heroin totaling 11.04 grams inside a black case downstairs, along with 17 individually wrapped baggies of heroin totaling 9.86 grams on the table. Also in the room with the heroin were two scales and scissors used for packaging. An additional 24.94 grams of heroin was found in the upstairs-bedroom-closet in a secret compartment crafted into the side of the closet.

Daboni recruited Amber Duffy to sell heroin for Daboni. Duffy, in return, would get heroin as payment for selling on behalf of Daboni. Those transactions include, but are limited to: on or about 5/01/14 Duffy sold 1g of heroin for Daboni, on or about 5/23/14 Duffy sold .93g of heroin on behalf of Daboni; and or about 4/08/14 Duffy sold .46g of heroin for Daboni. Also, Daboni would have Duffy pay some of the utility bills on his behalf.

Daboni recruited Jeremy Burgess to sell heroin for Daboni. Burgess, in return, would get heroin as payment for selling on behalf of Daboni.

Daboni recruited Theodore Brown, a.k.a. "Teddy" to sell heroin for Daboni. Brown, in return, would get heroin as payment for selling on behalf of Daboni. The incidents forming the pattern of corrupt activity are the other charges in this indictment: counts one through four. They include, but are not limited to, two or more incidents of corrupt activities, whether or not there has been a prior conviction, that are related to the affairs of the same enterprise, are not isolated and are not so closely related to each other and connected in time and place that they constituted a single event by engaging in, attempting to engage in, soliciting, coercing, or intimidating another to engage in any of the previous counts."

{¶6} According to the "More Particular Bill of Particulars" filed in case no. 14CR232, three controlled buys of heroin took place between confidential informants and Amber Duffy, and one controlled buy of heroin took place between...