State v. Shelby

135 N.E.3d 508

2019 Ohio 1564

STATE of Ohio, Appellee

v.Quentrell SHELBY, Appellant

No. WD-17-056

Court of Appeals of Ohio, Sixth District, Wood County.

Decided: April 26, 2019

Paul A. Dobson, Wood County Prosecuting Attorney, David T. Harold and Jim A. Hoppenjans, Assistant Prosecuting Attorneys, for appellee.

Lawrence A. Gold, Sylvania, for appellant.

DECISION AND JUDGMENT

OSOWIK, J.

Introduction

{¶ 1} This case concerns a large quantity of prescription drugs found in a vehicle after it was stopped by the Ohio State Highway Patrol, along I-75 in Wood County. One of the car's occupants, appellant Quentrell Shelby, was asleep in the backseat at the time of the stop and was observed by a state trooper to be holding a plastic bag full of drugs. Following a jury trial in the Wood County Court of Common Pleas, appellant was convicted of drug possession, drug trafficking and possession of criminal tools and sentenced to four years in prison. On appeal, appellant argues that the trial court erred in failing to give a particular jury instruction to account for the fact that appellant was asleep at the time he was seen holding the bag. He also argues that his convictions were not supported by legally sufficient evidence and were against the manifest weight of the evidence. For the reasons that follow, we affirm the judgment and sentence.

Facts and Procedural History

{¶ 2} The following evidence was offered at trial. In the early morning hours of October 22, 2015, Ohio State Highway Patrol Trooper Anthony Martin was on patrol on Interstate 75. Around 3:25 a.m., while stopped in the median of the southbound lane near Wales Road in Wood County, Trooper Martin observed a red Jeep Cherokee speeding. As the Jeep passed the trooper's vehicle, the trooper observed the Jeep change lanes and "then slowed substantially under the speed limit," both of which Trooper Martin knew to be "potential criminal indicators." Trooper Martin activated his lights and initiated a traffic stop. Trooper Martin approached the passenger-side of the Jeep where he observed a male driver (later identified as Curtis Lee Britton III), a female passenger in the front seat (later identified as Layke Holmes) and another male in the back seat, who appeared to be sleeping (appellant). The trooper observed additional criminal indicators including the fact that the Jeep was a rental vehicle that was twelve days overdue to be returned and the person who rented the vehicle was not present. In addition, the driver (Britton) parked in a haphazard manner with the blinker still activated, suggesting that he was distracted. Trooper Martin also observed the strong presence of deodorizer indicating an effort to mask another scent, an unusual amount of trash in the Jeep, and the "overly nervous" behaviors of Britton and Holmes who were "visibly shaking" and "avoiding eye contact" with him. As Trooper Martin was observing these factors, appellant continued to sleep in the back seat.

{¶ 3} Trooper Martin suspected that the occupants of the car could be involved in criminal activity, and he requested assistance from Trooper Stroud who was patrolling the same area with a drug-sniffing dog. Evidence in the record established that illegal drug activity along I-75 is common and that drugs are often transported from the Detroit area to the southern states, and the money for those drugs then flows to the north. The use of rental vehicles for the drug trade is also common.

{¶ 4} When Trooper Stroud arrived, Trooper Martin was escorting the driver (Britton) to Martin's patrol car. Trooper Stroud approached the driver's side of the vehicle to advise the remaining occupants not to get out of the vehicle, while he and the dog walked the perimeter of the Jeep so that the dog could conduct a "sniff." Trooper Stroud observed "a male in the backseat [who] appeared to be sleeping." He testified, "[a]s I looked around the vehicle, I noticed in [appellant's] hands he was holding a plastic bag. I could see plastic coming out of his right fist." Although Trooper Stroud could not see the contents of the bag in appellant's "clenched" fist, he suspected that the bag was "drug packaging" which he has "seen over and over." Trooper Stroud asked Holmes to wake appellant, and he watched as Holmes turned to reach into the back seat. Trooper Stroud testified that although he sensed Holmes' deliberate attempt to obscure his view, he did see her "push [appellant's] right hand that was holding [the] bag * * * underneath his body." Appellant then "sat up," and Trooper Stroud could see that appellant's hands were "now empty." Stroud then directed appellant to sit "directly behind the driver's seat." As appellant moved, the bag "sitting exactly underneath where he was just laying" became visible.

{¶ 5} Trooper Martin returned to the Jeep, and he too "observed the pills" which "were packaged inside of a bag knotted on the top." The pills, a mixture of green capsules and blue pills, were lying "on the back passenger seat" of the Jeep. The pills were later tested in a police lab and identified as 138 oxycodone (blue) and 79 alprazolam, a.k.a. "Xanax" (green).

{¶ 6} After observing the pills, Trooper Martin escorted Holmes to his vehicle, where she joined Britton. Appellant was taken to the other patrol car. Dashcam audio from Martin's patrol car recorded the conversation between Holmes and Britton, during which Holmes can be heard saying, "[w]hen they pulled you out, I was sweatin the shit out of him, and he was like ‘leave me alone,’ " and "I didn't know where they was at or I would have grabbed them."

{¶ 7} Holmes, who entered into a Cooperation Agreement with the state, testified on behalf of the prosecution. Holmes testified that she had known appellant for about three months before their arrest and that the two had a "fling." On three previous occasions, appellant had asked Holmes to accompany him down to Tennessee, presumably for "illegally-related" purposes, but she had always declined, until that night. Soon after Holmes got into the Jeep, she fell asleep. She claimed to be "tipsy" from alcohol and Xanax. She awoke when they picked up Britton, whom she did not know. Once the trip resumed, with Britton driving and appellant in the back seat, she fell back to sleep. Holmes testified, "[a]fter we picked [Britton] up, I dozed off for a moment. [Appellant] woke me up and asked me to get in the back seat with him. I told him no. Went back to sleep. And next thing you know, [appellant] was telling * * * [me to] hand him some baggies, which I later recall I did. * * * I handed him some baggies and fell back asleep. And then next thing you know, [we] got pulled over." According to Holmes, the baggies were in an unopened pack, which she described as "those like - - Good Sense plastic bags."

{¶ 8} Appellant testified in his own defense. He disputed the state's case, that the purpose of the trip was drug-related, and he specifically denied any knowledge that drugs were in the vehicle that evening or how they wound up in his hand. He did not dispute Trooper Stroud's testimony that Stroud, in fact, observed a knotted plastic baggie in his clenched right hand, but he added that, "I was asleep, sir, so I don't know what [the trooper] observed."

{¶ 9} The Wood County Grand Jury indicted appellant on November 19, 2015 on five criminal counts: "Aggravated Possession of Drugs," in violation of R.C. 2925.11(A) and (C)(1)(c), a felony of the second degree (Count 1); "Aggravated Trafficking in Drugs," in violation of R.C. 2925.03(A)(2) and (C)(1)(d), a felony of the second degree (Count 2); "Possession of Drugs," in violation of R.C, 2925.11(A) and (C)(2)(b), a felony of the fourth degree (Count 3); "Trafficking in Drugs," in violation of R.C. 2925.03(A)(2) and (C)(2)(c), a felony of the fourth degree (Count 4); and "Possessing of Criminal Tools," in violation of R.C. 2923.24(A) and (C), a felony of the fifth degree (Count 5).

{¶ 10} Following a two day jury trial beginning on July 25, 2017, appellant was convicted on all counts. The state argued that Counts 1 and 2 were allied offenses of similar import that merged for purposes of sentencing, as were Counts 3 and 4. The state requested that the court sentence appellant as to Counts 2, 4 and 5. The court sentenced appellant to a mandatory term of 4 years in prison as to Count 2; 12 months as to Count 4, and 12 months as to Count 5. The court ordered that the terms be served concurrently. Appellant appealed, and through counsel, asserts three assignments of error for our review:

FIRST ASSIGNMENT OF ERROR: The trial court erred in failing to give a requested jury instruction regarding Appellant being asleep.

SECOND ASSIGNMENT OF ERROR: The trial court erred in denying Appellant's Rule 29 motion.

THIRD ASSIGNMENT OF ERROR: The jury's verdict was against the manifest weight of the evidence presented at trial.

{¶ 11} In his first assignment of error, appellant argues that the trial court erred in failing to provide the jury with Ohio Jury Instruction CR 417.07, entitled "Coma, blackout." The instruction provides,

1. DEFINED. Where a person commits an act while unconscious as in a (coma) (blackout) (convulsion) due to (heart failure) (disease) (sleep) (injury), such act is not a criminal offense even though it would be a crime if such act were the product of a person's (will) (volition).

2. CONCLUSION. If you have a reasonable doubt whether the defendant was conscious at the time of such act, you must find that he is not guilty. If you find that the defendant was conscious, such finding does not relieve the state of its burden of establishing by the required weight of the testimony (all elements of the crime charged) (any lesser included offense) [that the act was (purposely) (knowingly) committed].

3. STATUTE. Reflexes, convulsions, body movements during unconsciousness or sleep, and body movements that are not otherwise a product of the actor's (will) (volition), are involuntary acts. R.C.

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