State v. Zaragoza

2017 Ohio 7944

STATE OF OHIO Plaintiff-Appellee v. SAUL ALVERAZ ZARAGOZA Defendant-Appellant

Appellate Case No. 27290

COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

September 29, 2017

Trial Court Case No. 2014-CR-493/1

(Criminal Appeal from Common Pleas Court)

OPINION

MATHIAS H. HECK, JR., by MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

JON PAUL RION, Atty. Reg. No. 0067020, JASON NORWOOD, Atty. Reg. No. 0096306 130 West Second Street, Suite 2150, P.O. Box 10126, Dayton, Ohio 45402 Attorneys for Defendant-Appellant

TUCKER, J.

{¶ 1} Defendant-appellant, Saul Alveraz Zaragoza, appeals from his conviction for one count of possession of more than 40,000 grams of marijuana, a second degree felony under R.C. 2925.11(A) and (C)(3)(g). His appeal includes challenges to the trial court's decision of July 1, 2014, overruling the motion to suppress he filed on March 5, 2014; as well as the court's decision of November 10, 2014, overruling the supplemental motion to suppress he filed on October 17, 2014. Raising three assignments of error, he argues that he did not receive a fair trial as the result of inadequate translation; that the trial court erred by overruling his motions to suppress because racial bias prompted the underlying investigation by law enforcement officers; and that the jury's verdict was not supported by sufficient evidence, or alternatively, that his conviction was against the manifest weight of the evidence. The State argues that the trial record includes no evidence of any significant errors made by the interpreter; that law enforcement officers were not motivated by racial bias; and that the jury had sufficient evidence to support a finding of guilt. We find that Appellant's arguments lack merit, and therefore, we affirm.

I. Facts and Procedural History

{¶ 2} On February 7, 2014, law enforcement officers attached to the Bulk Smuggling Task Force (the "Task Force") conducted surveillance at several locations on Miller Lane in Dayton, an area associated with traffic in illicit drugs. Tr. of Proceedings vol. I, 13-14, May 23 & Oct. 22, 2014 [hereinafter Tr. vol. I]; Tr. of Proceedings vol. III 388-389, Sept. 20, 2016 [hereinafter Tr. vol. III]. The surveillance included the Americas Best Value Inn at 7130 Miller Lane, where a vehicle with a temporary Indiana license plate attracted officers' interest. Tr. vol. I 125; Tr. vol. III 390. After checking the vehicle'sregistration number, Task Force officers found that the vehicle's owner of record was an auto dealership in Indiana;¹ continued observation and an examination of the inn's guest registry revealed that the vehicle was in the possession of Joseph Feliciano Mejias ("Feliciano"), who held a California driver's license. Id. at 125-130 and 181; Tr. vol. III 391-392. A search of the National Crime Information Center database indicated that Feliciano had a criminal record, including a narcotics-related arrest in Florida. Tr. vol. I 130; Tr. vol. III 392-393.

{¶ 3} When Feliciano left the inn, accompanied by another man, Task Force officers followed in unmarked vehicles. Id. at 131; Tr. vol. III 397. They noticed that Feliciano took measures to avoid being followed, such as "pulling quickly in and out of * * * parking lots, driving erratically, [and] making u-turns," which heightened the officers' suspicions. Tr. vol. I 131. Feliciano eventually travelled to a residence on Runyon Avenue in Trotwood, after making a number of stops en route. Id. at 132; Tr. vol. III 394-396.

{¶ 4} There, Task Force officers saw another vehicle, parked in the driveway, bearing a Washington license plate. Tr. vol. I 135-136; Tr. vol. III 397-398. According to that vehicle's registration information, its owner was "Saul Alvarez," and the National Crime Information Center reported an arrest warrant from Florida for Saul Jimenez Alvarez in connection with a narcotics-related offense. Tr. vol. I 25, 67 and 136-137. Although Appellant owned the vehicle, the officers learned later that the subject identified in the arrest warrant from Florida was another man with a coincidentally similar name anddate of birth.² Id. at 135-143; Tr. vol. III 397-398 and 408.

{¶ 5} Feliciano, and the man who had accompanied him from the Americas Best Value Inn, departed from the Runyon Avenue residence approximately 15 minutes after they arrived, with Task Force officers following. Tr. vol. I 134; Tr. vol. III 397. Subsequently, a Montgomery County sheriff's deputy in a marked cruiser stopped Feliciano for a traffic violation. Tr. vol. III 399. The Task Force officers monitored the stop from a distance and heard by radio that the deputy found a "large amount of currency" on Feliciano's person—roughly $5,000.00. Tr. vol. I 134-135 and 191; Tr. vol. III 399. At that point, the officers decided to return to Runyon Avenue for further investigation. Tr. vol. III 399. Three members of the Task Force wearing tactical vests, a representative of the Montgomery County Sheriff's Office, and a uniformed Trotwood Police Department officer initiated a consensual encounter by knocking on the side-door of the residence—a type of encounter referred to as a "knock-and-talk." Tr. vol. I 20-23 and 49; Tr. vol. III 399-400.

{¶ 6} Appellant opened the door in response, and when he did so, the officers were greeted with the "pungent odor of raw marijuana." Tr. vol. I 24; see also Tr. vol. III 401-402. The side-door opened into the kitchen, and Appellant allowed the officers to enter. Tr. vol. III 401-403, 412-413 and 500-501; Tr. of Proceedings vol. IV 713, Sept. 22-23 & Oct. 5, 2016 [hereinafter Tr. vol. IV]; Decision, Order and Entry Overruling Defs.' Mots. to Suppress 8-9, July 1, 2014 [hereinafter Decision on Mot. to Suppress].³ As they steppedinside, the officers smelled air freshener. Tr. vol. I 24-25; Tr. vol. III 402. A second man in the house, Teodulo Corona Cervantes ("Corona"), joined them in the kitchen shortly afterward. Tr. vol. III 403-404 and 500-501.

{¶ 7} One of the officers glanced into the living room and saw blankets on the floor but no furniture. Id. at 402. The officer then asked Appellant how many occupants were in the house, and Appellant answered that he and Corona were the only two. Id. at 403-404. Nevertheless, at almost the same time, officers heard a noise from the back of the house that they believed might be a third occupant. Id. at 404 and 502. Two officers looked out of the kitchen into the adjacent corridor, and as they did so, they saw a man—identified later as Martin Diaz Alvarez ("Diaz")—run out of a bedroom, across the corridor and into the bathroom. Id. at 503. After the officers sequestered Diaz in the living room, they performed a protective sweep of the house. Id. at 505.

{¶ 8} Having quickly obtained a search warrant, Task Force officers undertook a full search of the house. Tr. vol. I 177-178; Tr. vol. III 506-507. Among other things, they discovered 503 pounds of marijuana, Appellant's cellular telephone, and Appellant's wallet, which contained California and Washington-issued identification in Appellant's name. Tr. vol. III 506-530 and 548.

{¶ 9} Appellant's instant conviction followed his third trial, the previous two having ended in mistrials.⁴ Appellant's Br. 5-6; Appellee's Br. 1. In advance of his first trial, Appellant filed a motion to suppress all evidence obtained as a result of the search and seizure of the house on Runyon Avenue, and shortly after the trial's conclusion, he filed a supplemental motion to suppress directed specifically to evidence obtained from aforensic search of his cellular telephone. The trial court overruled these motions in decisions dated July 1, 2014 and November 10, 2014. Appellant's third trial began on September 19, 2016, and after the jury found him guilty, he appeared for sentencing on October 5, 2016.

II. Analysis

{¶ 10} Assignment of Error Number One:

MIR. [sic] ALVAREZ'S CONSTITUTIONAL RIGHTS, INCLUDING HIS RIGHT TO A FAIR TRIAL, WERE VIOLATED BECAUSE HE WAS DEPRIVED OF ADEQUATE AND ACCURATE TRANSLATION DURING HIS TRIAL[.]

{¶ 11} In his first assignment of error, Appellant argues that his "trial was inundated with [translation] errors and mis-communication [sic] which affected [his] ability to communicate, testify or defend against the evidence," such that he "was essentially excluded from the proceedings." Appellant's Br. 8. He insists that these "issues with the [interpreter] permeated [his] trial," while acknowledging that "the severity of the [alleged] errors in the translation are not fully developed or recognized" in the trial record. Id. at 10; Appellant's Reply Br. 1. Because Appellant offered no objection to the translation at his trial, our review under this assignment of error is only for plain error. See State v. Jones, 2015-Ohio-4116, 43 N.E.3d 833, ¶ 112-113 (2d Dist.); see also Tr. vol. IV 774-776.

{¶ 12} A defendant in "a criminal case * * * is entitled to hear the proceedings in a language that he can understand." (Citation omitted.) State v. Al-Mosawi, 2d Dist. Montgomery No. 24633, 2012-Ohio-3385, ¶ 8. To this end, R.C. 2311.14(A)(1) statesthat a "court shall appoint a qualified interpreter" to assist a party to a legal proceeding "who cannot readily understand or communicate" because "of a hearing, speech, or other impairment."⁵ Although interpreters may not "interject their own conclusions as to [a witness's remarks]," trial courts otherwise "enjoy 'considerable latitude' in determining the manner in which translation[s] will be conducted." State v. Patel, 9th Dist. Summit No. 24024, 2008-Ohio-4692, ¶ 47, quoting State v. Lopez, 6th Dist. Ottawa No. OT-05-059, 2007-Ohio-202, ¶ 11. A trial court has "the discretion to determine whether a satisfactory translation" has been provided. See State v. Pina...