State v. Harrell

238 N.E.3d 243

2024-Ohio-981

STATE of Ohio, Appellee

v.Othello HARRELL, Appellant

C.A. No. 2022-CA-50

Court of Appeals of Ohio, Second District, Clark County.

Rendered on March 15, 2024

(Criminal Appeal from Common Pleas Court), Trial Court Case No. 21-CR-0408(A).

CARLO C. MCGINNIS, Dayton, Attorney for Appellant.

ROBERT C. LOGSDON, Attorney for Appellee.

OPINION

LEWIS, J.

{¶ 1} Defendant-Appellant Othello Harrell appeals from his conviction in the Clark County Common Pleas Court, following a jury trial, for engaging in a pattern of corrupt activity and two counts of aggravated trafficking in drugs. For the following reasons, we will reverse the judgment of the trial court.

I. Procedural History and Brief Statement of Facts

{¶ 2} Detectives from the Springfield Police Department received information in June 2020 that Harrell was dealing methamphetamine out of his apartment. An investigation ensued, including using a confidential informant ("CI") to purchase drugs from Harrell on two occasions in July 2020. On August 10, 2020, police obtained a search warrant for Harrell’s apartment, and it was executed the following day. Immediately prior to the execution of the search warrant, officers detained Harrell during a traffic stop and confiscated his cell phone. Pursuant to the issuance of a subsequent search warrant, officers obtained the contents of Harrell’s cell phone, including numerous text messages between Harrell and other individuals believed to be engaged in the sale and possession of methamphetamines.

{¶ 3} On June 29, 2021, Harrell was indicted by a Clark County grand jury on one count of engaging in a pattern of corrupt activity, in violation of R.C. 2923.32(A)(1), a felony of the first degree ("Count One"); one count of aggravated trafficking in drugs, in violation of R.C. 2925.03(A)(2), a felony of the second degree ("Count Two"); one count of aggravated possession of drugs, in violation of R.C. 2925.11(A), a felony of the second degree ("Count Three"); one count of aggravated trafficking in drugs, in violation of R.C. 2925.03(A)(2), a felony of the third degree ("Count Four"); and one count of aggravated possession of drugs, in violation of R.C. 2925.11(A), a felony of the third degree ("Count Five"). The indictment also included a forfeiture specification attached to Counts Two through Five for $3,455 in U.S. currency. These charges were based on the investigation that occurred in the summer of 2020. In total, the indictment contained 122 various counts for eight co-defendants.

{¶ 4} On August 13, 2021, the State filed a certification of non-disclosure of material in accordance with Crim.R. 16(D), identifying certain material, including redacted information in the discovery packet, that would not be disclosed due to the risk of physical harm, intimidation, or coercion of confidential informants. A bill of particulars was also filed by the State.

{¶ 5} On January 21, 2022, Harrell filed a motion to suppress challenging the ad- missibility of evidence obtained from the searches of his home and cell phone and the lawfulness of his traffic stop and detention, which led to statements allegedly obtained in violation of Harrell’s lights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Following a hearing on the motion to suppress, the trial court overruled Harrell’s motion in its entirety.

{¶ 6} On March 10, 2022, Harrell filed a motion to disclose information regarding cooperating witnesses and informants. The trial court sustained in part and denied in part Harrell’s motion. The portions that were denied included information involving the CI and disclosure of the identity of the CI. In particular, any evidence of audio, video, or electronic recordings of the controlled drug purchase, which was alleged in the affidavit for the search warrant involving the CI, was not required to be disclosed to defense counsel until the day of trial.

{¶ 7} On May 2, 2022, Harrell filed a motion for disclosure of the CI and related information, requesting that the State disclose the information at least two weeks prior to trial. That same day, Harrell filed a supplemental motion to suppress regarding pretrial identification. The State filed a response to Harrell’s motion for disclosure of the CI and related information. The trial court ruled that the State was not required to disclose the identity of the CI until the day of trial. The trial court also overruled Harrell’s supplemental motion to suppress without a hearing on May 20, 2022, finding that it was untimely and that it would not be in the best interest of justice to extend the time limit for filing a pretrial motion to suppress to accommodate the supplemental motion.

{¶ 8} On June 15, 2022, Harrell filed a motion in limine to prohibit the State from introducing any evidence of alleged misconduct involving criminal convictions, alleged criminal conduct, or any other ongoing investigations for which Harrell had not yet been indicted. That same day, Harrell filed a second motion in limine to prevent the State from introducing testimony of four witnesses the State had listed in its amended witness list, including alleged co-defendants.

{¶ 9} Following the State’s response to each of Harrell’s motions in limine, the trial court overruled the motions as it related to the four potential witnesses and indicated it would need additional information to rule on whether Harrell’s prior convictions were expected to be used before the trial court would issue a ruling. The trial court further indicated it would consider any of Harrell’s objections at trial as to any alleged improper testimony, thus reserving any ruling on the admissibility of other evidence.

{¶ 10} On June 28, 2022, a jury trial commenced detailing the investigation of the Springfield Police Department, including evidence of the two drug buys, the contents of Harrell’s cell phone, and testimony from the CI, co-defendants, and law enforcement. Harrell was found guilty as charged on all counts.

{¶ 11} Harrell was sentenced on July 11, 2022. The court merged Count Three into Count Two and merged Count Five into Count Four based on the State’s election. Harrell was sentenced to an indefinite prison term of 11 to 16½ years for Count One (engaging in a pattern of corrupt activity); an indefinite prison term of 8 to 12 years for Count Two (second-degree aggravated trafficking in drugs); and a definite prison term of 3 years for Count Four (third-degree aggravated trafficking in drugs). The trial court ordered the sentences to be served consecutively for a total indefinite prison term of 22 to 27½ years. The trial court also imposed a man- datory minimum fine for the second-degree felony of $7,500 and a mandatory minimum fine for the third-degree felony of $5,000. Finally, the trial court ordered that $3,455 be forfeited in accordance with the forfeiture specification.

{¶ 12} Harrell filed a timely appeal and raises the following four assignments of error:

I. APPELLANT WAS DENIED HIS DUE PROCESS RIGHTS TO A FAIR TRIAL UNDER OHIO AND FEDERAL CONSTITUTIONS.

II. APPELLANT’S CONVICTIONS FOR COUNT TWO AND COUNT THREE FOR AGGRAVATED TRAFFICKING AND POSSESSION OF DRUGS SHOULD BE REVERSED BECAUSE THEY WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND/OR THE EVIDENCE WAS INSUFFICIENT.

III. APPELLANT’S CONVICTION UNDER OHIO RICO STATUTE SHOULD BE REVERSED BECAUSE IT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND/OR THE EVIDENCE WAS INSUFFICIENT.

IV. CUMULATIVE EFFECT OF THE MULTIPLE ERRORS IN THIS CASE VIOLATED APPELLANT’S CONSTITUTIONALLY GUARANTEED RIGHT TO A FAIR TRIAL.

II. First Assignment of Error

{¶ 13} In his first assignment of error, Harrell raises five sub-arguments under the umbrella claim that he was denied his due process right to a fair trial. These arguments include: 1) the trial court erred in overruling his motions to suppress evidence; 2) the trial court erred in denying his motions requesting disclosure of the CI and additional discovery associated with the CI; 3) the trial court erred in admitting certain evidence at trial; 4) the trial court erred in overruling his motion for a mistrial and Crim.R. 29 motion for acquittal; and 5) the trial court failed to provide adequate jury instructions and responses to jury questions. Because we conclude that the trial court erred in failing to grant one of Harrell’s motions to suppress, we need not address his additional due process arguments except for his Crim.R. 29 claim, which we will address as part of his sufficiency of the evidence assignments of error.

{¶ 14} Harrell’s first motion to suppress concerned the lawfulness of Harrell’s warrantless detention and the seizure of his cell phone. The second motion concerned a pretrial identification of Harrell. We will begin our analysis with the trial court’s decision overruling Harrell’s January 21, 2022 motion to suppress concerning Harrell’s warrantless detention.

a. Motion to Suppress Regarding the Warrantless Seizure

{¶ 15} On January 21, 2022, Harrell filed a motion to suppress challenging the admissibility of evidence obtained from searches of his home and cell phone and the lawfulness of his traffic stop and detention, which led to the seizure of his cell phone and statements allegedly obtained in violation of his Miranda rights. A hearing was held on the motion to suppress on April 21, 2022, at which Detective Calvin Burch and Officer Paige Rector of the Springfield Police Department testified on behalf of the State. The following is a summary of the testimony and evidence that was presented at the suppression hearing.

{¶ 16} Detective Burch was a seven-year veteran of the Springfield Police Department and was involved in the Drug Investigation Unit in June 2020. Around June 15, 2020, Detective Burch met with a CI, later identified at trial as Amber Yeager, who informed him of a methamphetamine supplier by the name of "Cuz," later identified as Harrell. On June 25, 2020,...