State v. Rainey

1

2023-Ohio-4666

STATE OF OHIO, Plaintiff-Appellee, v. MELOGRO RAINEY, Defendant-Appellant.

No. C-230055

Court of Appeals of Ohio, First District, Hamilton

December 22, 2023

Criminal Appeal From: Hamilton County Court of Common Pleas Trial No. B-2100811-B

Melissa A. Powers, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Arenstein & Gallagher, Hal Arenstein and Elizabeth Conkin, for Defendant-Appellant.

OPINION

BOCK JUDGE.

{¶1} For about a year, based on community complaints about drug activity, police had been investigating a building in Cincinnati, as well as those entering and leaving the building. Defendant-appellant Melogro Rainey was one of the people entering and leaving the building.

{¶2} Eventually, police arrested Rainey on multiple drug- and gun-related charges. Following a jury trial, Rainey was convicted of drug trafficking and possession of drugs. Rainey appeals, asserting that the trial court misstated the law in its constructive-possession jury instruction, he received the ineffective assistance of counsel, and his convictions were not supported by sufficient evidence and were contrary to the manifest weight of the evidence.

{¶3} We hold that (1) the jury instructions were in accordance with Ohio law, (2) it is not apparent that counsel's performance fell below the standard of reasonable legal assistance, and (3) Rainey's convictions were supported by sufficient evidence and the jury did not lose its way or create a manifest injustice in finding Rainey guilty. Therefore, we affirm the trial court's judgment.

I. Facts and Procedure

A. The state indicted Rainey on multiple drug-related charges

{¶4} In February 2021, the state indicted Rainey, along with codefendant Kendall Tye, on five counts of drug trafficking in violation of R.C. 2925.03(A)(2), five counts of drug possession in violation of R.C. 2925.11(A), and having a weapon while under a disability ("WUD") in violation of R.C. 2923.13(A)(3). Counts one and two included major-drug-offender specifications. Counts five and six also included major-drug-offender specifications, and the drug involved was a fentanyl-related compound.

1. The Trial

{¶5} Rainey was tried by a jury on all charges other than the WUD, on which he waived his right to a jury trial. After a bench trial, the trial court acquitted Rainey of the WUD charge.

Officers conducted multiple traffic stops on Rainey

{¶6} Cincinnati Police Officer Tom Weigand testified that Cincinnati police had received complaints from the community about drug transactions taking place at 1842 Baltimore Avenue ("the Baltimore property") in Cincinnati, Ohio. In response, police officers began surveilling the Baltimore property. Over the course of about a year, Weigand and other officers observed Rainey and two other people going into and leaving the Baltimore property, using a key to enter.

{¶7} In January 2020, Cincinnati Police Officer Cian McGrath made a traffic stop on Rainey on Baltimore Avenue at the request of a plain-clothes officer conducting surveillance in the area. While Rainey received a citation, the sole purpose of the stop was to identify him. McGrath found no contraband. Rainey's driver's license showed he lived one to two miles from the Baltimore property.

{¶8} In May 2020, Cincinnati Police Sergeant Christopher Clarkson, a member of the "Place-Based Investigations of Violent Offender Territories" unit, made a traffic stop on Rainey per a "gang unit" officer's request. Clarkson did not see the violation and found no contraband. Clarkson gave Rainey a warning and let him go.

{¶9} In October 2020, Cincinnati Police Officer Joshua Condon pulled over Rainey about a block from the Baltimore property after receiving a report from the "Gun Crime Task Force" and the "Gang Unit," which work hand-in-hand, that Rainey had committed a traffic violation. Condon saw marijuana "shake" (the loose substance that remains after separating marijuana seeds from leaves) in the console of the car, but he did not arrest Rainey because the amount was "unrecoverable." He found no other contraband or money.

Police observed the Baltimore property

{¶10} Weigand testified that the police had been surveilling the Baltimore property "off and on," about 30 times over the course of a year, as the "goal [was] to get a search warrant for that residence to go in there and see what's going on." Investigators passing the Baltimore property would stop and watch from a church parking lot if they saw activity. If not, they would keep driving.

{¶11} Weigand conducted a search to determine who owned the Baltimore property-it was not in Rainey's name. He did not investigate who paid rent or taxes at the Baltimore property.

A neighbor's camera captured Rainey accessing the Baltimore property

{¶12} Police eventually learned the community center next door had an exterior camera pointing in the direction of the Baltimore property. The community center let the police "view their cameras and observe Rainey coming and going from the place using a key."

{¶13} The state introduced only one instance of the community center's surveillance camera footage, from January 21, 2021. The footage showed Rainey sitting in his car. Within five to ten minutes apart from each other, Rainey and co-defendant Tye used a key to access the Baltimore property. After a few minutes, the men left at the same time, Tye on foot and Rainey by vehicle.

{¶14} Weigand testified that officers attempted to approach Tye after he left the Baltimore property on January 21, 2021. Tye, however, fled on foot after throwing a bag that he had been carrying, which contained $50,000 and scales.

Officers conducted a final traffic stop on Rainey

{¶15} Weigand testified that another officer, Taylor Howard, witnessed Rainey engage in a hand-to-hand drug transaction around the corner from the Baltimore property on January 21, 2021. But Howard testified, "They radioed for us to stop his vehicle for a hand-to-hand drug transaction that they observed." Howard and his partner stopped Rainey after they saw Rainey make an illegal U-turn and searched him and the vehicle.

{¶16} In Rainey's car, Howard found a receipt book containing what he believed were various addresses from locations that Rainey claimed he either owned or managed. He found $3,500 in cash that was "stack[ed]" according to denomination in a bag sitting in the front seat. Officers found no drugs other than marijuana "shake." Officers let him go with a warning for the U-turn after about ten minutes.

Officers obtained a warrant and searched the Baltimore property

{¶17} Officers obtained a search warrant for the Baltimore property. Rainey was not identified on the warrant. With the help of a S.W.A.T. team, officers searched the Baltimore property the same evening that they attempted to approach Tye and stopped Rainey for the final time.

{¶18} The main area of the Baltimore property contained a kitchen, a living area, and a back room. The basement was not accessible from the main part of the house. When Weigand walked into the Baltimore property, he saw that the kitchen counter was "covered with different kinds of drugs and drug-processing equipment and drug scales."

{¶19} During the search, officers found a large amount of contraband throughout the kitchen, including on the stove, the kitchen table, the counters, under the sink, and in a drawer. Specifically, officers found digital scales with drug residue, money, foil, fentanyl packaged in foil, cocaine, and marijuana. On the kitchen table were three unloaded, but operable, guns, one with an extended magazine. In a kitchen cabinet, they located cocaine, ammunition, two guns and a magazine with five rounds. In another kitchen cabinet, officers found false-bottom food containers filled with bags of drugs. In a kitchen drawer, officers found five bags of drugs. On the kitchen counters, they found more drugs, money, and blenders caked with white residue. Under the kitchen sink were more drugs.

{¶20} In the living room, officers found a drum magazine (used to hold a large number of bullets), more drugs, a digital scale, bullets, and photographs of Rainey and Tye. And in the back room, officers found marijuana, a large amount of ammunition, money, boxes for the guns, and "cut," a powder used to mix cocaine and fentanyl. Officers recovered a total of $7,254 from the Baltimore property. Further, alone in the Baltimore property was a Cane Corso dog "about the size of a tiger" named "Rambo."

{¶21} And the state introduced paperwork found at the Baltimore property bearing Rainey's name, such as articles of organization for two limited liability companies of which Rainey was an owner, an accident report in which Rainey was involved, a letter to Rainey from the housing inspector, and a 2020 dog license for a Cane Corso signed by Rainey and listing the Baltimore property as the address.

2. Rainey objected to the court's jury instructions

{¶22} The trial court's instruction stated, "Constructive possession will be established where the accused was able to exercise dominion or control over the contraband." Rainey objected to the court's proposed jury instruction involving constructive possession, arguing that the court should follow State v. Mitchell, 190 Ohio App.3d 676, 2010-Ohio-5430, 943 N.E.2d 1072 (1st Dist). Citing Mitchell, Rainey's proffered jury instruction stated, "Constructive possession occurs when an individual exercises dominion and control over an object, even though that object may not be within his immediate physical possession." See id. at ¶ 5.

{¶23} The trial court's instructions to the jury read, in part Possession may be actual or constructive. While mere...