State v. Love

Citation: 2021 Ohio 4451Docket: 19AP-666

Court: Ohio Court of Appeals; December 15, 2021; Ohio; State Appellate Court

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Defendant-appellant Don M. Love, II, appeals a conviction and sentence from the Franklin County Court of Common Pleas dated September 11, 2019. He was indicted on one count of possession of heroin (third-degree felony) and two counts of aggravated possession of drugs (fifth-degree felonies for carfentanil and furanylfentanyl), each with a firearm specification. The case proceeded to a jury trial following his not guilty plea. 

The prosecution's case was based on evidence gathered from a month-long surveillance operation initiated after a heroin addict implicated appellant's father as a drug dealer. Surveillance revealed appellant engaging in suspected drug transactions and prompted law enforcement to install a GPS device on his vehicle due to his evasive driving tactics. During a "no-knock" search warrant execution on April 20, 2017, police found evidence supporting the charges, including firearms and packaging materials associated with drug distribution. The prosecution emphasized the risks of the operation due to the involvement of firearms and narcotics. Ultimately, the appellate court affirmed the lower court’s judgment.

Detective Hendon testified that occupants of the house could have seen police approaching approximately 15 seconds before police forcibly entered. Shortly after the entry, the appellant appeared on the stairs, followed by his aunt, who descended slowly due to recent foot or leg surgery, taking about 45 seconds to a minute with assistance. The appellant's brother also came downstairs, and their father arrived at the residence during the execution of the search warrant.

In the house, a desk near the front door contained Suboxone strips and about 8 grams of an off-white powder, identified as heroin, carfentanil, and furanylfentanyl. The second floor had four bedrooms; the first left bedroom contained Suboxone strips under the bed and a Glock 19 firearm in a crib, with evidence suggesting its occupant, though the detective could not recall details. A bathroom across the hall had plastic bags and white powder determined to be carfentanil.

In the basement, a SIG firearm was found on a couch, along with a cell phone containing numerous photos of the appellant, including selfies and a photo of the Glock. The phone was linked to the Google account [email protected]. A wallet nearby contained cash but lacked identification. Mail addressed to the appellant was found in the residence, though its location was unspecified. Ammunition was scattered throughout the house, including in the office desk, and testing showed both firearms were operable but had no usable fingerprints.

Defense counsel objected to parts of Detective Hendon’s testimony regarding events leading to the search warrant, labeling them as "prior acts." The trial court overruled these objections, deeming the testimony relevant to the investigation's context and the focus on the appellant. A subsequent jury instruction was agreed upon, limiting consideration of the investigation's background to understanding the events on April 20th.

During closing arguments, the prosecutor emphasized that the police conducted a thorough investigation focused on Don Love Sr. but shifted their attention to Don Love II, who exhibited evidence of narcotics possession. Defense counsel argued that discussions regarding meetings involving the defendant were merely context and should not influence the jury's determination of guilt or innocence. Counsel also highlighted that the prosecution's claims were based on limited observations and criticized the absence of GPS tracking evidence that could have supported the defendant's alibi. In rebuttal, the prosecutor reiterated that evidence prior to a specified date was only for contextual purposes and not to be used as proof of trafficking.

Before deliberations, the trial court instructed the jury to consider evidence solely for contextual understanding of the investigation leading to the April 20, 2017 search warrant execution. The jury ultimately found the defendant guilty on all counts, resulting in a 30-month prison sentence. The defendant raised three assignments of error: 1) the introduction of other acts evidence unfairly prejudiced his trial; 2) the state's evidence was insufficient as a matter of law; and 3) the evidence weighed against a conviction.

Appellant argues that his convictions should be reversed due to unfair prejudice from the introduction of other-acts evidence, specifically regarding his alleged drug trafficking prior to the events of April 20, 2017. He contends that this evidence, which included Detective Hendon’s testimony about suspected drug and firearms transactions and a trash pull, was introduced without proper notice under Evid. R. 404(B) and was unnecessary to establish the fact that an investigation had commenced. Appellant claims that the trial court failed to conduct an Evid. R. 403 analysis to assess the evidence's prejudicial impact, leading to a conviction based on his character rather than the actual crime of drug possession.

He emphasizes that the jury was not adequately instructed to disregard the prejudicial evidence, arguing that the limiting instruction provided was insufficient. Appellant cites the three-part admissibility test for other-acts evidence, asserting that the evidence presented did not meet the criteria of relevance, legitimate purpose, and balance of probative value against unfair prejudice. The Supreme Court of Ohio allows for a review of the trial court's discretion in such matters, defining an abuse of discretion as a decision that is unreasonable or arbitrary.

The Supreme Court of Ohio clarifies that exclusion of evidence based on unfair prejudice involves more than just balancing general prejudice; it focuses on whether the evidence could lead to an improper jury decision. Evidence that provokes emotional responses or a punitive instinct may be deemed unfairly prejudicial. For trial courts, key considerations include the relevance of the evidence to disputed issues, the availability of less prejudicial alternative evidence, and the evidence's probative value regarding essential elements of the case. If evidence is minimally relevant and likely to cause unfair prejudice or confusion, it must be excluded.

Regarding the appellant's claims, the trial court did not specifically analyze the evidence under Evid. R. 403(A) but was not required to do so explicitly. The appellant's argument about unfair prejudice due to lack of notice under Evid. R. 404(B) is rejected because this rule pertains to notice for evidence introduction, not to the type of unfair prejudice addressed in Evid. R. 403(A). The court finds no evidence of lack of notice, as no written notice is mandated, and the appellant did not raise this issue at trial. The court acknowledges that while the appellant's challenge under Evid. R. 403(A) does not consider the evidence's relevance to motive or other factors, this limitation arises not from a lack of notice but from the trial court's specific instruction permitting the jury to consider the evidence only for contextual purposes related to a specific date. The state did not file a cross-appeal on this limiting instruction.

The trial court did not abuse its discretion in admitting evidence, as its probative value was deemed to outweigh any potential for unfair prejudice. The appellant's argument, based on the Zimmerman case, that a less prejudicial alternative was available is rejected. In Zimmerman, the trial court allowed a patrol officer to recount the victim's hearsay statements, aimed at bolstering the victim's credibility, which was later deemed erroneous as the officer's role was merely to document and relay the victim's statement, providing no insight into an actual investigation. In contrast, the case at hand involved a more complex investigation, lasting two months, which included surveillance and evidence gathering leading to the execution of a search warrant. The evidence presented served to contextualize the police’s actions and the circumstances surrounding the search, ultimately aiding the jury in understanding the case's background and countering the defense's narrative, which sought to shift focus to another suspect. Background information was deemed necessary for providing a comprehensive understanding of the events leading to the charges.

The evidence presented, while prejudicial, was deemed admissible as it did not evoke emotional responses from the jury. The brief references to drug transactions and related items found did not specifically implicate the appellant nor stimulate emotional biases. A limiting instruction from the court mitigated concerns that the jury might misinterpret the evidence as indicative of the appellant’s character. There was no record evidence suggesting that the jury improperly considered the contested evidence in rendering guilty verdicts, and ample evidence supported the appellant's convictions.

In addressing the sufficiency of evidence, the appellant challenged the constructive possession of drugs found in shared areas of his home, arguing that access alone does not establish possession. He pointed out the absence of direct evidence linking him to the drugs, such as proximity or fingerprint evidence. However, an appellate court's review focuses on whether, when viewing the evidence favorably for the prosecution, a rational juror could find the essential elements of the crime proven beyond a reasonable doubt. The appellant was convicted of possession of heroin and aggravated possession of drugs (carfentanil and furanylfentanyl), which required proof of knowingly obtaining or possessing a controlled substance as per R.C. 2925.11(A).

Possession requires control over an item, which cannot be established merely through ownership or access to the location where the item is found, as defined by R.C. 2925.01(K). Possession can be actual, where the item is within immediate physical control, or constructive, where an individual has dominion and control over an object not in immediate possession. Circumstantial evidence can support a finding of constructive possession, and mere presence near illegal drugs is insufficient for conviction unless there is evidence of control.

In this case, after reviewing the evidence favorably for the prosecution, it was determined that a rational jury could find that the appellant had constructive possession of carfentanil, heroin, and furanylfentanyl. Evidence included the presence of powdered carfentanil in a bathroom, with signs of recent activity suggesting appellant's involvement. Appellant was located nearby, lived in the closest bedroom, and evidence linked him to a firearm found there. Additionally, he had a limited time to dispose of the drugs in response to police arrival. 

Further, the jury could conclude appellant had control over a mixture of drugs found in a desk, including carfentanil and Suboxone, with ties to the appellant’s living space. Firearms and ammunition located in the house were also connected to him. As a result, the court rejected the appellant's argument regarding the sufficiency of evidence and upheld the conviction.

Appellant argues that his convictions are against the manifest weight of the evidence, claiming the jury erred by finding him guilty based solely on "mere access" to drugs, specifically carfentanil. He contends he had less access than others present because he descended the stairs first, just eight seconds after police entered. Additionally, he asserts he was unlikely to have access to drugs found in a desk, as no fingerprints or DNA were recovered linking him to that location. The court differentiates between sufficiency of evidence and manifest weight, noting that the latter involves assessing whether the jury's conclusions create a miscarriage of justice. The appellate court acts as a "thirteenth juror," weighing evidence and credibility to determine if the jury clearly erred. It finds that the jury did not lose its way, noting evidence suggested that appellant had more than just access to the drugs, including factors such as the mobility issues of his aunt and the positioning of his brother during the police entry. The court concludes that the evidence does not heavily weigh against the convictions, thus rejecting the appellant's challenge. The judgment of the Franklin County Court of Common Pleas is affirmed.