Ohio

Warning: The following opinion is provided for purposes of discussion only. We have not Shepardized™ this opinion, and do not know the subsequent disposition of this case nor whether the effect of the opinion has been overruled or superceded by other law.

State of Ohio v. Nathan Oman,
2000.OH.0042336 (Ohio App. Dist.5 02/14/2000)

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

Case No. 1999CA00027

2000.OH.0042336

February 14, 2000

STATE OF OHIO PLAINTIFF-APPELLEE

V.

NATHAN OMAN DEFENDANT-APPELLANT

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 1998CR1271A

Appearances: For Plaintiff-Appellee Frederic R. Scott P.O. Box 20049 Canton, OH 44701-0049 For Defendant-Appellant Michael Boske 3721 Whipple Avenue N.W. Canton, OH 44718

The opinion of the court was delivered by: Farmer, J.

Testimony of co-conspirator - ineffective assistance of counsel - improper sentence.

JUDGES: Hon. John W. Wise, P.J. Hon. Sheila G. Farmer, J. Hon. Julie A. Edwards, J.

OPINION

JUDGMENT: Affirmed

In September of 1998, Ronald Broadwater, an undercover agent with the Ohio Bureau of Criminal Investigations, began investigating one Richard Gibbs for drug trafficking. Agent Broadwater purchased ten hits of LSD from Mr. Gibbs, and expressed an interest in purchasing more. On October 19, 1998, Agent Broadwater, Mr. Gibbs, Mr. Gibb's source, Michael Latimer, and one Andy Albright drove to the Belden Village area in Stark County, Ohio, to meet with Mr. Latimer's supplier for the purchase of 1,000 hits of LSD. Agent Broadwater was wearing a concealed body transmitter to record the transaction. These individuals met up with the occupants of a white Blazer. Driver of the Blazer was Heather Ensign, and appellant, Nathan Oman, was seated in the passenger seat. Appellant placed sheets of paper represented as LSD into a CD case. Ms. Ensign handed the CD case to Mr. Latimer who passed it to Mr. Gibbs. Mr. Gibbs counted the sheets as Agent Broadwater counted out the money for the purchase. At this time, undercover officers moved in and made arrests. Subsequent tests on the sheets tested negative for any controlled substances. On October 29, 1998, the Stark County Grand Jury indicted appellant on one count of trafficking in LSD in violation of R.C. 2925.03(A). A jury trial commenced on December 21, 1998. The jury found appellant guilty as charged. By judgment entry filed December 29, 1998, the trial court sentenced appellant to a definite term of four years in prison. Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows:

I THE TRIAL COURT ERRED IN ADMITTING HEARSAY TESTIMONY OF AN ALLEGED CO-CONSPIRATOR WHEN THE STATE HAD FAILED TO ESTABLISH INDEPENDENT PROOF OF THE CONSPIRACY.

II THE FINDING BY THE JURY THAT THE AMOUNT OF LSD INVOLVED EXCEEDED 250 DOSES BUT DID NOT EXCEED 1,000 DOSES WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.

III APPELLANT'S CONVICTION FOR TRAFFICKING IN LSD IS CONTRARY TO LAW SINCE THE LSD WAS COUNTERFEIT.

IV APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL DUE TO TRIAL COUNSEL'S FAILURE TO REQUEST A JURY INSTRUCTION ON THE LESSER INCLUDED OFFENSE OF TRAFFICKING IN A COUNTERFEIT CONTROLLED SUBSTANCE.

V APPELLANT WAS DENIED DUE PROCESS OF LAW BY THE TRIAL COURT'S REFUSAL TO ALLOW DEFENSE COUNSEL TO ARGUE THAT APPELLANT WAS ACTUALLY GUILTY OF OTHER CHARGES RATHER THAN TRAFFICKING IN LSD.

VI THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT IMPOSED AFTER TRIAL A LENGTHIER SENTENCE THAN WAS OFFERED AS A PLEA BARGAIN.

I.

Appellant claims the trial court erred in permitting testimony as to statements made by an alleged co-conspirator, Mr. Latimer. Specifically, appellant claims the testimony constituted hearsay because the state failed to establish independent proof of a conspiracy. We disagree. The trial court is given broad discretion in determining the admissibility of evidence. State v. Sage (1987), 31 Ohio St.3d 173. In order to find an abuse of discretion, we must determine that the trial court's decision was unreasonable, arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. We must look at the totality of the circumstances in the case sub judice, and determine whether the trial court acted unreasonably, arbitrarily or unconscionably. Appellant argues "[t]he statement of a co-conspirator is not admissible until the proponent of the statement has made a prima facie showing of the existence of the conspiracy by independent proof." See, Appellant's Brief at 5. Appellant challenges statements made by Mr. Gibbs. These statements were elicited on cross-examination (T. at 96, 98, 101-102, 103, 104-105, 116-117) except for one immediate redirect by the prosecutor as follows: Q. After Mike, your supplier, sees this, he gives Nathan his money?

A. No. Q. When? A. Wait. Yeah, my supplier did, right. Q. Okay. T. at 125. It is well accepted law that a party is not permitted to complain of an error which said party invited or induced the trial court to make. In State v. Kollar (1915), 93 Ohio St. 89, 91, the Supreme Court of Ohio stated as follows: The law imposes upon every litigant the duty of vigilance in the trial of a case, and even where the trial court commits an error to his prejudice, he is required then and there to challenge the attention of the court to that error, by excepting thereto, and upon failure of the court to correct the same to cause his exceptions to be noted. It follows, therefore, that, for much graver reasons, a litigant cannot be permitted, either intentionally or unintentionally, to induce or mislead a court into the commission of an error and then procure a reversal of the judgment of an error for which he was actively responsible.

The entire scene of the drug transaction was testified to by Mr. Gibbs. On cross-examination, Mr. Gibbs testified he purchased LSD from Mr. Latimer to sell to Agent Broadwater. T. at 96, 101-102. Mr. Gibbs testified he had purchased LSD from Mr. Latimer to sell to Agent Broadwater on a prior occasion. T. at 96. These statements were made by Mr. Gibbs before Agent Broadwater testified. Agent Broadwater testified as to the arrangement with Mr. Gibbs to purchase LSD through Mr. Gibbs's source, Mr. Latimer, who in turn would purchase from his supplier. T. at 140. Appellant also challenges testimony by Agent Broadwater regarding statements made by Mr. Gibbs on his ability to arrange a larger deal. T. at 140-141. Agent Broadwater testified Mr. Gibbs could arrange a deal between his source, Mr. Latimer, and Mr. Latimer's supplier. T. at 140. When Agent Broadwater attempted to explain what Mr. Gibbs had told him regarding what Mr. Latimer had said about the drug transaction, appellant objected. T. at 141-142. After a lengthy discussion on the issue (T. at 142- 147), the trial court sustained the objection as to the hearsay statements of Mr. Latimer. T. at 147-149. Another area of testimony objected to was Agent Broadwater's description of driving to Belden Village with Mr. Latimer, Mr. Gibbs and Mr. Albright where Mr. Latimer had a "wad of money," approached the white Blazer in the parking lot and returned purportedly with LSD. T. at 154-156. Agent Broadwater testified to the drug transaction as follows: A. Yes. I was parked in the parking lot, the Blazer pulled up next to me. Ah, rolled my window down, female driving, yelled over, Hand me the CD case. Mr. Latimer took the CD case, took a CD case off of the dash, handed it over to the female driving. She opened up the CD case. Mr. Oman [appellant] was sitting beside her, he grabbed a bunch of sheets of white paper, began shoving them in the CD case. I asked, Is there a hundred on each one. I'm getting a thousand. Are they all there?

Q. Who did you ask? A. I asked Mr. Oman [appellant] that. *** Q. I'm sorry. What happened with the CD case? A. The girl opened up the CD case and Mr. Oman shoved a bunch of white papers in. That's when I asked him, Is there a hundred on each one of those. I'm getting ten. Am I getting a thousand? I was told, Yes. It's good.

Q. Okay. Were you asking, were you asking about a thousand?

A. Yes.

Q. And what was Mr. Oman's response?

A. Yes, it's good.

T. at 163 and 165, respectively.

Agent Broadwater identified appellant as the passenger of the white Blazer who packed the CD case with the sheets of white paper, purportedly LSD. T. at 163-164. After all this testimony, the trial court ruled there was sufficient proof of a conspiracy between Mr. Gibbs and Mr. Latimer to permit the admission of the statements. T. at 168-169. The tape of the drug transaction was then played for the jury. T. at 178-180. We concur with the trial court that there was independent proof of a conspiracy. Specifically, on cross-examination, Mr. Gibbs admitted that Mr. Latimer was his source. T. at 96. Mr. Gibbs testified how Mr. Latimer approached the white Blazer and returned with a sheet of LSD for Agent Broadwater's inspection. T. at 103-104. Mr. Latimer left with a wad of money, took the CD case to the white Blazer and appellant stuffed it with white sheets and verbally acknowledged each sheet contained one hundred hits of good LSD. T. at 163. The CD case was then passed back to Mr. Latimer. T. at 165. Upon review, we find the trial court did not err in permitting the testimony as to Mr. Latimer's statements. Assignment of Error I is denied.

II.

Appellant claims the jury's verdict that the amount of LSD exceeded two hundred fifty doses but did not exceed one thousand doses was against the manifest weight of the evidence. We disagree. On review for sufficiency, a reviewing court is to examine the evidence at trial to determine whether such evidence, if believed, would support a conviction. State v. Jenks (1991), 61 Ohio St.3d 259. On review for manifest weight, a reviewing court is to examine the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine "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." State v. Martin (1983), 20 Ohio App.3d 172, 175. See also, State v. Thompkins (1997), 78 Ohio St.3d 380. The granting of a new trial "should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction." Martin at 175. There was specific evidence that each sheet could easily count out to one hundred doses of LSD: Q. So what, in theory, you do if this has lines on it, would this be big enough -- how many lines would be on this?

A. You could count a hundred out of it easily. Q. To make this into a hundred hits, right? A. Yes. Q. Or make it into two hits or four hits or? A. You can, yes. Q. Hit is like a unit dose? A. Basically what you'd eat. T. at 107. Agent Broadwater testified Mr. Gibbs counted out ten sheets for his purchase. T. at 189. Mr. Gibbs counted the sheets twice. Id. If the jury chose to believe the testimony which was uncontradicted, then there was sufficient evidence of more than two hundred fifty doses but less than one thousand doses. We find no evidence of a manifest miscarriage of justice. Assignment of Error II is denied.

III.

Appellant claims his conviction for trafficking in LSD was contrary to law because the LSD was counterfeit. We disagree. The sheets "sold" to Agent Broadwater tested negative for any controlled substances. Appellant acknowledges the decisions of the Ohio Supreme Court in State v. Scott (1982), 69 Ohio St.2d 439, and State v. Patterson (1982), 69 Ohio St.2d 445, support the state's argument that a charge of trafficking in LSD can be established even if the LSD is counterfeit. However, appellant argues R.C. 2925.37(B), offenses involving counterfeit controlled substances, effective August 20, 1982, was enacted subsequent to these decisions and the following dicta from Patterson at 447-448 should prevail: Under R.C. 2925.03(A)(1), (5) or (7), one who knowingly offers to sell a controlled substance markets drugs. Failure to deliver does not ipso facto exonerate the accused. It would be improper for this court to amend that provision and insert a 'fraudulent transfer' defense. The General Assembly easily could have done so had they been concerned with protecting 'consumers' or giving 'con-men' different treatment. They did not, and neither should we.

We might have found appellant's argument to be persuasive if the Supreme Court of Ohio had not in 1987 reaffirmed the Scott decision in State v. Mushni (1987), 33 Ohio St.2d 65, 67-68: When appellant knowingly offered to sell Percodan, a controlled substance, his offense was complete under R.C. 2925.03(A)(1). State v. Scott (1982), 69 Ohio St.2d 439, 23 O.O.3d 390, 432 N.E.2d 798. There need be no additional proof that appellant knew that the substance he was offering was not Percodan or that it was actually a counterfeit controlled substance. Proof of such knowledge and of the counterfeit character of the substance offered is necessary for a conviction under R.C. 2925.37(B).

Upon review, we conclude the jury's verdict was not contrary to law. Assignment of Error III is denied.

IV.

Appellant claims his trial counsel was ineffective in not requesting a jury charge on trafficking in a counterfeit controlled substance. We disagree. The standard this case must be measured against is set out in State v. Bradley (1989), 42 Ohio St.3d 136, 142, certiorari denied 497 U.S. 1011. Appellant must establish two criteria: 1) [C]counsel's performance is proved to have fallen below an objective standard of reasonable representation and, in addition.

2) [P]rejudice arises from counsel's performance.

Appellant must further establish "... but for counsel's unprofessional errors, the result of the proceedings would have been different." Strickland v. Washington (1984), 466 U.S. 668, 696. In Mughni at 67, the Supreme Court of Ohio specifically addressed the issue of whether trafficking in a counterfeit controlled substance was a lesser included offense of trafficking in a controlled substance: Thus, our first task is to compare the elements of the offenses with which appellant was charged. The first count, under R.C. 2925.03(A)(1), charged that appellant "***knowingly did sell or offer to sell a***controlled substance***to-wit; Percodan***." Appellant was also charged, under R.C. 2925.37, with "***knowingly***sell[ing] or offer[ing] to sell an unknown substance purported to be a***controlled substance, to-wit; Percodan***, knowing the same to be a counterfeit controlled substance***." Our comparison of these offenses and their elements leads us to conclude that they do not correspond 'to such a degree that [the] commission of the one offense will result in the commission of the other.' Logan [State v. (1979), 60 Ohio St.2d 126], supra, at 128, 14 O.O.3d at 374, 397 N.E.2d at 1348.

Based upon the foregoing, we find trial counsel did not err in failing to request a jury charge on trafficking in a counterfeit controlled substance. Assignment of Error IV is denied.

V.

Appellant claims the trial court erred in not permitting his trial counsel to argue during closing argument that appellant was actually guilty of trafficking in a counterfeit controlled substance. We disagree. As stated in Assignment of Error IV, the trial court was not required to give the charge of the lesser included offense of trafficking in a counterfeit controlled substance therefore, to permit such an argument would have been fruitless and confusing to the jury. Assignment of Error V is denied.

VI.

Appellant claims the trial court erred in imposing a lengthier sentence than that which was offered at the plea bargain. We disagree. Although the record reveals the sentence offered to appellant in the plea bargain was less than the sentence imposed, the trial court substantiated its decision with the following neutral opinion stated during the sentencing hearing: ***So from the 23 to the 14 of December your client continually demanded that he wished a trial. I'm assuming two things: One, he felt he was not guilty. And I have now heard the evidence and I find that particular claim to be without merit. Or, secondly, he did not like the Court's sentence of three years. So, it was then a debate between the defendant, who felt it was his prerogative to determine his own sentence, or the Court. Whatever his reason, he rejected that offer and I have made a note that the three years was an offer if pled on 12-14-98. I received no further indication. And I disagree with you, Mr. Drake, that I have learned more, as one always does, in listening to the trial, because I heard your client's voice, I heard the attitude of all the players in this thing. I heard at the end of the tape the chaos and emergency of how this ended. I heard as to the danger of the individuals. I found out that it happened at Belden Village at Kaufmann's at about 9 o'clock in the evening on a day when people were likely to be present. So I did learn a significant number of things. More importantly, I learned that your client was on judicial release, which I was not aware of. I thought he was on probation out of this drug conviction. And, secondly, I found out that he has a warrant for his failure to report to his probation officer during judicial release.

T. at 284-286.

Upon review, we find the trial court did not err in imposing a lengthier sentence. Assignment of Error VI is denied.

The judgment of the Court of Common Pleas of Stark County, Ohio is hereby affirmed.

By Farmer, J. Wise, P.J. and Edwards, J. concur.

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