State v. Conley, Unpublished Decision (3-19-2001)
State v. Conley, Unpublished Decision (3-19-2001)
Opinion of the Court
OPINION
On February 23, 2000, the Stark County Grand Jury indicted appellant, Anthony L. Conley, on two counts of possession of cocaine in violation of R.C.I THE TRIAL COURT ERRED IN ALLOWING THE STATE OF OHIO TO ELICIT FROM A WITNESS THAT APPELLANT WAS ON PAROLE THEREBY DEPRIVING APPELLANT OF A FAIR TRIAL.
II THE TRIAL COURT ERRED WHEN IT EMPANELED AN ANONYMOUS JURY IN THE ABSENCE OF ANY EVIDENCE OR FINDINGS THAT AN ANONYMOUS JURY WAS NECESSARY IN THIS CASE, THEREBY COMMITTING STRUCTURAL ERROR IN VIOLATION OF APPELLANTS DUE PROCESS RIGHTS UNDER THE UNITED STATES CONSTITUTION, INCLUDING HIS RIGHT TO A FAIR TRIAL AND IMPARTIAL JURY.
III THE TRIAL COURT ERRED IN ALLOWING EVIDENCE CONCERNING TRAFFICKING THEREBY DEPRIVING APPELLANT OF A FAIR TRIAL.
IV THE TRIAL COURT ERRED IN NOT GIVING AND/OR REPEATING ALL RELEVANT JURY INSTRUCTIONS AT THE CONCLUSION OF COUNSELS ARGUMENTS.
V THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO THE MAXIMUM SENTENCE IN VIOLATION OF OHIO REVISED CODE SECTION
2919.14 .
Appellant claims the trial court erred in the admission of evidence as to the fact he was on parole and as to items found during the search of his residence. We disagree. The admission or exclusion of evidence lies in the trial court's sound discretion. State v. Sage (1987),31 Ohio St.3d 173 . In order to find an abuse of that discretion, we must determine 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 . "Relevant evidence" is defined as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Evid.R. 401. All relevant evidence is admissible unless "its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury." Evid.R. 402; Evid.R. 403. On February 10, 2000, appellant visited his parole officer, Michael Beebe. Suppression Hearing T. at 9. During the meeting, appellant tested positive for the use of cocaine. Id. As a result, appellant's residence was searched and charges were filed. During trial, Mr. Beebe did not testify to appellant's parole status or that he tested positive for cocaine. Mr. Beebe explained he was employed by the State of Ohio Adult Parole Authority. T. at 109. Mr. Beebe testified to the following regarding his contact with appellant: Q. On February the 10th at approximately 3:30 p.m., did you have occasion to come in contact with the Defendant?
A. Yes, ma'am.
Q. And is the person that you had contact with that day present in the courtroom today?
A. Yes, ma'am.
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Q. As a result of conversation during this meeting that you had with the Defendant, what happened? What did you do next?
A. We took Mr. Conley to his place of residence, at which time a search of the residence was conducted.
T. at 109-110.
The issue of Mr. Beebe's employment was argued to the trial court prior to Mr. Beebe testifying. T. at 4-5, 100. The trial court determined that Mr. Beebe could state his employment and whether or not he had a "regularly scheduled meeting" with appellant, but could not testify as to appellant's prior conviction unless appellant took the stand. Id. Although the employment of a witness is not particularly relevant, it was hardly unduly prejudicial to appellant in the case sub judice. We find no error in the trial court's determination. Appellant also argues the trial court erred in permitting testimony regarding drug related items found in his bedroom (a digital scale and sandwich baggies). Andy Turowski, a Stark County Metro Narcotics Officer, opined the items were "commonly used for people who traffic narcotics." T. at 138-139. Appellant objected and the trial court sustained the objection as it related to "trafficking," but permitted the rest of the testimony to stand. T. at 139. Appellant argues the complained of testimony had no relevancy to the counts in the indictment, possession of cocaine, and cast a prejudicial light on appellant. We disagree. From the entire reading of the officer's testimony, it is clear he was explaining "the how and the why" of the search of appellant's bedroom. We find no undue prejudice from the testimony. It was made very clear to the jury via opening statements, closing arguments and jury charge that the crimes alleged were possession of cocaine and not trafficking in cocaine. T. at 108, 219, 234. Assignments of Error I and III are denied.
(a) That the record does not support the sentence;
(b) That the sentence included a prison term, that the offense for which it was imposed is a felony of the fourth or fifth degree or is a felony drug offense that is a violation of a provision of Chapter 2925. of the Revised Code and that is specified as being subject to division (B) of section
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(d) That the sentence is otherwise contrary to law.
Clear and convincing evidence is that evidence "which will provide in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established." Cross v. Ledford (1954),
Appellant was found guilty of two counts of possessing crack cocaine, one a felony of the fourth degree and the other a felony of the fifth degree. Pursuant to R.C.
(a) The offender committed the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section
(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
In sentencing appellant to consecutive sentences, the trial court stated the following: ***I would further find under 2929.14(E)(4)(a) that you committed these acts while on post-release controls or parole. Under 2929.14(E)(4)(b) that no single term would adequately reflect the seriousness of your conduct and certainly under 2929.14(E)(4)(c) that your prior record demonstrates consecutive terms are necessary to impose.
T. at 256.
Upon review, we cannot find clear and convincing evidence that the record does not support the consecutive nature of the sentences or that the aggregate sentence is otherwise contrary to law. Assignment of Error V is denied.
The judgment of the Court of Common Pleas of Stark County, Ohio is hereby affirmed.
By Farmer, J. Gwin, P.J. and Wise, J. concur.
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