State v. Smith

97 N.E.3d 1068

2017 Ohio 7740

STATE of Ohio, Plaintiff–Appellee,

v.James E. SMITH, Jr., Defendant–Appellant.

No. 16AP–772

Court of Appeals of Ohio, Tenth District, Franklin County.

Rendered on September 21, 2017

On brief: Ron O'Brien, Prosecuting Attorney, and Barbara A. Farnbacher, Columbus, for appellee. Argued: Barbara A. Farnbacher.

On brief: Dennis W. McNamara, Columbus, for appellant. Argued: Dennis W. McNamara.

DECISION

SADLER, J.

{¶ 1} Defendant-appellant, James E. Smith, Jr., appeals from the judgment entry of the Franklin County Court of Common Pleas finding appellant guilty of two counts of possession of cocaine and two counts of trafficking in cocaine. For the following reasons, we affirm the decision of the trial court.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} On August 21, 2015, a Franklin County Grand Jury indicted appellant on two counts of possession of cocaine, in violation of R.C. 2925.11, and two counts of trafficking in cocaine, in violation of R.C. 2925.03. All four counts charged that the amount of cocaine was equal to or greater than 100 grams, elevating those counts to first-degree felonies. Appellant did not file a pre-trial affidavit of indigence. On August 26, 2015, represented by counsel, appellant pled not guilty to all counts. Appellant posted a $100,000 surety or appearance bond, and the case proceeded to a jury trial beginning on October 11, 2016, where the following pertinent facts were presented.

{¶ 3} On August 11, 2015, law enforcement officials were notified of a FedEx package that possibly contained a controlled substance. The package was addressed to "Jesica Aviles" at 921 Chittenden Avenue in Columbus from a sender located on Veronica Drive in Coachella, California; the FedEx tracking number indicated that the package was shipped from a Kinko's in LaQuinta, California. Within the FedEx package, officers found six kilos of cocaine encased within a karaoke machine. The officers placed one package of cocaine, several packages of fake cocaine, and a GPS transmitter and another electronic device back into the karaoke machine, resealed the karaoke machine in the FedEx box, and obtained authorization to conduct a controlled delivery of the package to the Chittenden Avenue residence.

{¶ 4} The next day, a special agent for a drug traffic force, posing as a FedEx delivery person and equipped with electronic recording devices, approached the Chittenden Avenue residence. Surveillance and tactical teams positioned nearby the home monitored the delivery. Three men unknown to the special agent were on the front porch to the home: appellant, George Spencer, and Mark Chafin. The special agent stated that he had a package for "Jesica," and appellant responded, "Yeah, yeah." (Tr. Vol. I at 86.) Appellant told the agent his name was Burt Johnson and was a resident of the house, signed for the package, and indicated that he did not think the box needed to be signed for. A later search of the home produced no evidence indicating that appellant actually lived there; rather, evidence showed Spencer's girlfriend, whose last name is not Aviles, rented the home and lived there with her child. The special agent told appellant that the package could be stolen if left on the front porch, and appellant moved the package from the porch to inside the doorway of the house. The special agent left the property. The electronic recording of the delivery was played for the jury.

{¶ 5} A few minutes after the controlled delivery, Chafin removed the FedEx box from the home, placed it into the backseat of a Mercury Sable, and returned to the porch. The Sable is titled to TSF Investment Company, LLC, a company for which appellant is the CEO. Shortly thereafter, appellant and Chafin got into the Sable. Appellant drove the Sable down Chittenden Avenue with Chafin in the front passenger seat. Approximately seven to ten minutes elapsed from the time the special agent arrived with the FedEx truck to the time the Sable drove away.

{¶ 6} Uniformed detectives stopped the Sable at the end of the street. Officers found the unopened FedEx package sitting on the back seat of the Sable behind the passenger seat. Officers seized $1,014 in cash and three cell phones from appellant's person. During inventory of the Sable, officers recovered from the trunk a second, virtually identical karaoke machine containing an additional six kilos of cocaine. Testimony conflicted as to whether the karaoke machine in the truck was found within a FedEx package. No fingerprints matching appellant or Chafin were found on the karaoke machine recovered from the truck.

{¶ 7} Eight days later, pursuant to a warrant, officers searched a business owned by appellant named "The Speed Factory" located at 4555 Groves Road, Unit 35, in Columbus. The officers did not find controlled substances, large amounts of money, or valuables such as jewelry. The officers seized, among other items, a cell phone from the garage area and a cell phone from a bag hanging on a coat rack.

{¶ 8} An expert in mobile device forensics testified to analyzing the five cell phones recovered: the Nokia found in a bag on the coat rack of appellant's business; the Samsung M260 recovered in the garage area of appellant's business, and two LG phones and a Samsung Galaxy recovered from appellant's person. One of the LG phones found on appellant contained records of calls to the same southern California number at least 11 times from August 4 to August 12, 2015. Text messages recovered from the phones found on appellant contained tracking numbers that matched the FedEx records of other packages sent between Columbus and California. At least one of those phones had accessed FedEx.com to track three packages between Columbus and California. Screenshots of texts from the Nokia phone taken from the coat rack of appellant's business included California addresses related to locations of five other FedEx packages shipped between Columbus and California coupled with texts relaying the Chittenden Avenue address.

{¶ 9} According to testimony from the officers involved, narcotics smugglers seldom ship drugs to their own residence but rather typically ship drugs to another residence with a fictitious name listed; likewise, the sender information listed on such a package is fictitious in a high percentage of cases.

{¶ 10} Sometime later but before trial, Chafin allegedly executed an affidavit stating he placed both boxes in the Sable, believed the boxes contained auto parts, and that appellant did not know anything about the boxes. The affidavit is not a part of the record of appeal. At trial, appellant attempted to call Chafin to testify as a defense witness and enter Chafin's affidavit into evidence. A discussion out of the jury's presence occurred whereby counsel for Chafin stated that he had advised Chafin to assert his right against self-incrimination under the Fifth Amendment to the U.S. Constitution. The trial court agreed that taking the stand posed a genuine risk to Chafin's Fifth Amendment rights, noting that by carrying the box to the car Chafin arguably held equal possession of the narcotics. The trial court stated that, procedurally, "I am not going to do this question by question. It's my opinion that once he decides to take the Fifth, he takes the Fifth. It's not a smorgasbord event." (Tr. Vol. III at 411–12.) Defense counsel recognized that there could be a Fifth Amendment issue but objected to not being able to ask him multiple questions and mentioned that he would like to question Chafin about whether officers threatened him to not testify, and whether that had an impact on his decision to invoke the Fifth Amendment. Defense counsel did not proffer for the record questions that he would have asked Chafin.¹

{¶ 11} The jury then returned, and defense counsel called Chafin to the stand. After being sworn in, Chafin provided identifying information. Defense counsel then handed Chafin his affidavit and asked whether he recognized it. Acting on his own counsel's advice, Chafin invoked his right against self-incrimination under the Fifth Amendment. Chafin further indicated that at his counsel's instruction, he would "plead the fifth" in response to any question. Counsel for Chafin confirmed that he advised Chafin to invoke the Fifth Amendment in response to any further questioning. The trial court noted defense counsel's objection and instructed the jury not to draw any inference either for or against appellant on the basis of Chafin's failure to testify. On the objection of plaintiff-appellee, State of Ohio, the trial court did not admit Chafin's affidavit into evidence on the basis that appellant was an unavailable witness, and the affidavit did not fall within any exception in Evid.R. 804(B). Appellant did not testify in his own defense or call any other witness.

{¶ 12} On October 13, 2016, the jury returned verdicts finding appellant guilty of all counts. Several weeks later, appellant filed an affidavit, pursuant to R.C. 2929.18(B)(1), setting forth his indigence.

{¶ 13} The trial court conducted a sentencing hearing on November 2, 2016, whereby it merged Count 1 with Count 2, merged Count 3 with Count 4, and imposed a sentence of 11 years each as to Counts 2 and 4 to be served concurrent with each other. Regarding a fine, appellant reminded the trial court of the affidavit of indigence filed, pursuant to R.C. 2929.18(B)(1), and asserted that while he may have enough money to cover the $1,000 court costs, he had no ability to pay a mandatory fine of $10,000 considering he will be incarcerated and have no income. Nevertheless, the trial court imposed a mandatory fine of $10,000 on each of the two counts and deferred collection of the fine and costs until appellant is released from prison. Appellant again pointed out the affidavit of indigence, and the trial court responded "I know, and I'm not making that finding at this time." (Sentencing Hearing Tr. at 16.) Appellant asked whether the trial court is...