State v. Walker

217 N.E.3d 79

STATE of Ohio, Plaintiff-Appellee,

v.Paris D. WALKER, Defendant-Appellant.

CASE NOS. 2022-L-077

2022-L-078

Court of Appeals of Ohio, Eleventh District, Lake County.

Decided: June 12, 2023

Charles E. Coulson, Lake County Prosecutor, and Jennifer A. McGee, Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).

Brian A. Smith, Brian A. Smith Law Firm, LLC, 123 South Miller Road, Suite 250, Fairlawn, OH 44333 (For Defendant-Appellant).

OPINION

EUGENE A. LUCCI, J.

{¶1} Walker appeals his sentencing entries issued in two separate cases. We affirm.

{¶2} The first case, Case No. 2021 CR 001101, stems from a traffic stop of Walker in June 2021. At that time, Walker was driving a 2004 Dodge Stratus registered in his name. During the stop, Walker was searched, and officers located a pill bottle containing suspected crack cocaine and four small baggies containing suspected powder cocaine in his pockets. Officers arrested Walker, and, upon booking him into jail, located $165 in cash on his person.

{¶3} Walker was charged with trafficking in cocaine, in an amount exceeding 20 grams but less than 27 grams, a second-degree felony, in violation of R.C. 2925.03(A)(2), with attendant forfeiture specifications for the cocaine, pill bottle, plastic baggies, Dodge Stratus, and $165 in cash; and possession of cocaine in an amount equaling 20 grams but less than 27 grams, a second-degree felony, in violation of R.C. 2925.11.¹

{¶4} Walker pleaded not guilty, and the case was scheduled for jury trial. On the date first set for jury trial, Walker appeared at the court and, prior to commencement of trial, requested a continuance because he was unhappy with his current representation and had obtained new counsel, who was not then present. The court denied the continuance and informed Walker that the jury trial would proceed on that date as scheduled. Thereafter, the court held an off-record discussion with counsel in chambers. When the court returned on the record, it stated that Walker had left the courthouse, and, when defense counsel contacted him by telephone, Walker advised counsel that he would not be returning for trial that day. The court revoked Walker's bond and issued a warrant for his arrest.

{¶5} Thereafter, Walker was arrested and detained, and the case proceeded to jury trial. The jury found Walker guilty on both counts and found that the vehicle was subject to forfeiture, but not the cash. The court referred the case for a presentence report and investigation ("PSI") and indicated that a proportionality hearing regarding the vehicle would be held at the same time as sentencing.

{¶6} The second case, Case No. 2021 CR 001234, stems from a traffic stop of Walker in September 2021, while he was initially on bond in the first case. At that time, a police officer was investigating an animal complaint and observed Walker drive a vehicle into the driveway of a house that was under investigation for suspected drug activity. Walker remained there for one to two minutes, during which time a resident came out to the car, leaned into Walker's window, and then returned to the residence. Walker then pulled out of the driveway. As Walker drove by the officer, the officer ran Walker's plates and determined that the vehicle was registered to Walker, and his license was suspended. The officer further observed that neither Walker nor a passenger in his car were wearing safety belts. The officer initiated a traffic stop and ultimately searched the vehicle, Walker, and his passenger. In the passenger's pocket, the officer located a pill bottle bearing Walker's name containing crack cocaine. Walker informed the officer that he had been handed crack cocaine at the residence he had just left, and Walker put the drugs in his pill bottle. The search of the vehicle revealed baggies of powder cocaine between the driver's seat and center console and loose crack cocaine rocks inside the center console and underneath the floor mats.

{¶7} Thereafter, Walker was charged with three counts of possession of cocaine in an amount less than five grams, fifth-degree felonies, in violation of R.C. 2925.11, with forfeiture specifications attendant to each count for the cocaine, prescription bottle, and plastic baggie. After initially pleading not guilty, Walker changed his plea to guilty on all three counts. The court accepted the pleas and deferred sentencing for a PSI to be completed in conjunction with Case No. 2021 CR 001101.

{¶8} The cases proceeded to sentencing at the same hearing. In Case No. 2021 CR 001101, the court ordered merger of the two counts as allied offenses of similar import, and the state elected to proceed to sentencing on the trafficking count. The court sentenced Walker to an indefinite prison term of five to seven and one-half years, to be served consecutively to the sentence imposed in Case No. 2021 CR 001234. The court further found that the value of the Dodge Stratus was proportionate to the severity of the offense, and ordered the Dodge, cocaine, pill bottle, and plastic baggies forfeited. In Case No. 2021 CR 001234, the court merged the first and third counts of possession of cocaine as allied offenses of similar import. The state elected to proceed to sentencing on the first count. The court sentenced Walker to nine months of imprisonment on each of the first and second counts of possession of cocaine to be served concurrently with each other but consecutively to the sentence imposed in Case No. 2021 CR 001101. The court further ordered the cocaine, prescription bottle, and plastic baggie forfeited.

{¶9} In his first assigned error, Walker argues:

{¶10} "Appellant's convictions in case number 2021 CR 001101 were against the manifest weight of the evidence."

{¶11} The "[w]eight of the evidence concerns ‘the inclination of the greater amount of credible evidence * * * to support one side of the issue rather than the other.’ " (Emphasis sic.) State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting Black's Law Dictionary 1594 (6th Ed.1990). When considering challenges to the weight of the evidence, the appellate court reviews " ‘the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.’ " Thompkins at 387, 678 N.E.2d 541, quoting State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). "When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a ‘ " ‘thirteenth juror’ " ’ and disagrees with the factfinder's resolution of the conflicting testimony." Thompkins at 387, 678 N.E.2d 541, quoting Tibbs v. Florida , 457 U.S. 31, 42, 102 S.Ct. 2211, 2218, 72 L.Ed.2d 652 (1982). "The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction." Thompkins at 387, 678 N.E.2d 541, quoting Martin at 175, 485 N.E.2d 717.

{¶12} Here, Walker maintains that the "convictions" for trafficking in cocaine and possession of cocaine are against the manifest weight of the evidence. However, as set forth in our recitation of the procedural history above, the trial court merged these counts in this case, and the state elected to proceed to sentencing on the trafficking charge. Because the possession count merged into the trafficking count, no sentence was imposed on the possession charge, and "therefore there is no conviction on that charge[,]" and any error with regard to the possession charge in this case "is not relevant." State v. Whetstone , 11th Dist. Lake No. 2015-L-114, 2016 WL 5637253, ¶ 26, citing In re J.C. , 11th Dist. Lake No. 2012-L-083, 2013-Ohio-1292, 2013 WL 1294642, ¶ 22.

{¶13} Accordingly, we proceed to review the weight of the evidence regarding the trafficking charge only. Walker was convicted of trafficking in cocaine in an amount exceeding 20 grams but less than 27 grams, in violation of R.C. 2925.03(A)(2). R.C. 2925.03(A)(2) provides:

No person shall knowingly * * * [p]repare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance or a controlled substance analog, when the offender knows or has reasonable cause to believe that the controlled substance or a controlled substance analog is intended for sale or resale by the offender or another person.

{¶14} Pursuant to R.C. 2901.22(B) :

A person acts knowingly, regardless of purpose, when the person is aware that the person's conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when the person is aware that such circumstances probably exist. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person subjectively believes that there is a high probability of its existence and fails to make inquiry or acts with a conscious purpose to avoid learning the fact.

{¶15} In support of the trafficking charge, at trial, the state first elicited testimony from the officers involved in the stop and search of Walker and his vehicle. The testimony indicated that, at approximately 3:39 p.m. on the afternoon of June 28, 2021, an officer stopped Walker after he turned left at a red light in a residential neighborhood in Eastlake. After determining that Walker had a suspended license, another officer came to the scene per the police department's protocol. Walker informed the officers that he had occupational driving privileges. Although no driving privileges were indicated in the officers’ system, they assisted Walker in looking for the paperwork granting the privileges,...