[Cite as State v. Creighton,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 95607

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

DEONDRAY CREIGHTON DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-527332

BEFORE: Rocco, J., Stewart, P.J., and Sweeney, J.

RELEASED AND JOURNALIZED: November 17, 2011

-i- 2

ATTORNEYS FOR APPELLANT

Andreas Petropouleas Oscar E. Rodriguez John W. Martin Co., & Associates, L.P.A. 75 Public Square Suite 1414 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor

BY: Marc D. Bullard Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113

KENNETH A. ROCCO, J.:

{¶ 1} Defendant-appellant, Deondray Creighton, appeals from his convictions for

drug trafficking, drug possession, tampering with evidence, illegal cultivation of

marijuana, carrying a concealed weapon, possessing criminal tools, and having a weapon

while under disability, with firearm specifications and from the sentences imposed for

those convictions.

{¶ 2} Appellant presents four assignments of error. First, he argues the trial

court erred in denying his motion to suppress the warrantless search of his co-defendant’s 3 residence. Next, he asserts his convictions are unsupported by sufficient evidence and the

manifest weight of the evidence. Finally, appellant argues the trial court improperly

sentenced him to consecutive sentences.

{¶ 3} Upon a review of the record, we affirm the trial court’s denial of his motion

to suppress. We, likewise, affirm his conviction for tampering with evidence. We,

however, reverse his convictions for drug trafficking in Ecstasy, drug possession in

Ecstasy, drug possession in marijuana, illegal cultivation of marijuana, possession of

criminal tools, carrying a concealed weapon, having a weapon while under a disability,

and firearm specifications. Consequently, we affirm in part, reverse in part and remand

for proceedings consistent with this opinion.

{¶ 4} On August 11, 2009, appellant was included in a twelve count indictment

with co-defendants, Deangelo Freeman and Lashawn Atkinson. The following ten of the

twelve counts pertained to appellant and charged him as follows: Count 1 drug

trafficking in violation of R.C. 2925.03(A)(1); Count 2 drug trafficking in violation of

R.C. 2925.03(A)(2); Count 3 drug possession of Ecstasy in violation of R.C.

2925.011(A); Count 4 tampering with evidence in violation of R.C. 2921.12(A)(1); Count

5 illegal cultivation of marijuana in violation of R.C. 2925.04(A); Count 6 drug

trafficking in violation of R.C. 2925.03(A)(2); Count 7 drug possession of marijuana in

violation of R.C. 2925.11(A); Count 9 having a weapon while under a disability in

violation of R.C. 2923.13(A)(2); Count 11 carrying a concealed weapon in violation of 4 R.C. 2923.12(A)(2); and Count 12 possession of criminal tools in violation of R.C.

2923.24(A). Each count contained numerous forfeiture specifications and Counts 1, 2, 3,

5, 6, and 7 contained a one-year firearm specification. Additionally, Counts 1, 2, 5, and

6 contained a schoolyard specification. Appellant, however, was not indicted for

possession of four Ecstasy pills recovered from his suitcase.

{¶ 5} Following indictment, appellant and co-defendant Freeman filed motions to

suppress the evidence seized at a residence located at 1253 East 89th Street in Cleveland,

Ohio and any statements made thereafter. Co-defendant Atkinson also filed a motion but

seeking suppression of the evidence seized from his person and his automobile. The

court held a hearing regarding both motions on September 22, 2009. Following the

hearing, the trial court denied all motions to suppress and the case proceeded to a joint

jury trial on July 12, 2010. Prior to trial, appellant waived his right to a jury regarding

Count 9 (the weapon disability count).

{¶ 6} At both the suppression hearing and trial, the following evidence was

introduced. Detective Joseph Zickes testified that on February 28, 2008, the Cuyahoga

County Sheriff’s Department had obtained a confidential informant, who shortly before

trial was identified as Delaneo Franklin (“Franklin”). Franklin told police that he could

make a controlled purchase of a large amount of Ecstasy from “Alo,” later identified as

the co-defendant DeAngelo Freeman, who resided at 1253 East 89th Street in Cleveland,

Ohio. Detective Zickes explained that Franklin became an informant after he was 5 arrested for participating in a buy of a small amount of drugs. In exchange for his work

that very same day as a confidential informant, the state agreed to make a deal with him

regarding the small drug buy.

{¶ 7} Franklin further informed detectives that a Black Cadillac Escalade was

frequently parked in front of the house. After conducting surveillance of the house and

noticing the Escalade, the sheriff’s detectives were satisfied with Franklin’s reliability.

At which point, police decided to perform a controlled purchase at that address.

{¶ 8} The members of the Cuyahoga County Sheriff’s Unit and Franklin then

made arrangements for the controlled buy at the 89th Street residence. The detectives

searched Franklin for contraband, outfitted him with a recording transmitter, and provided

$500, which had been photocopied, to purchase 100 pills of Ecstasy. At some point,

Franklin made a phone call to “Alo” to schedule a drug buy of 100 Ecstasy pills at

Freeman’s residence. Detectives recorded this phone conversation.

{¶ 9} During preparation of Franklin, Detective Zickes along with Detective

Timothy O’Connor proceeded to the 89th Street residence. Lt. Caraballo arrived a short

while later with Franklin and he was placed in a nearby vehicle with Detective Shaffer.

Thereafter, Franklin remained under constant visual surveillance.

{¶ 10} A short while after arriving at the 89th Street residence, Detective Zickes,

Detective O’Connor, and Lt. Caraballo witnessed Lashawn Atkinson exit the target 6 house, enter the Escalade parked in front, and drive away. The deputies then stopped the

Escalade on MLK Boulevard for a traffic violation.

{¶ 11} Following Atkinson’s stop and subsequent arrest, the detectives returned to

the 89th Street residence. Franklin knocked on the door of the 89th Street house, but no

one answered. He then used a cell phone to call Freeman and the conversation was

recorded. During the conversation, Freeman indicated he was aware of the traffic stop of

Atkinson and seemed nervous about police presence in the area. After some discussion,

Franklin convinced Freeman that police were not present and shortly thereafter a white

vehicle pulled into the driveway. Freeman and appellant exited and all three entered the

house, although apparently not at the same time because Franklin did not know appellant

was in the house.

{¶ 12} The detectives listened via the transmitter as the controlled buy occurred.

Instead of waiting for Franklin to leave the E. 89th Street residence with pills in hand,

when the detectives heard money being counted and a description of the Ecstasy, they

immediately proceeded to the front door to apprehend Freeman. At the same time,

Franklin had walked to the front door and was about to exit when Freeman saw the

detectives on the porch about to enter the home. Freeman slammed the interior door shut

and locked it.1 Also, on the outside of the front door was an exterior iron security door

At oral argument both sides conceded that there is no evidence in the record Franklin 1

(CI) was in danger. Indeed, Franklin was trying to leave the residence with the pills in hand when the detectives were on the front porch trying to enter the residence. 7 that was shut and locked. The detectives then heard Franklin shout “flush the shit.”

Franklin testified that following the detectives arrival, Freeman grabbed the Ecstasy from

Franklin and ran upstairs.

{¶ 13} Unable to enter the home, the detectives smashed through a front window

and gained entry without a warrant. Detective Zickes testified that once inside, he saw

Freeman coming down the stairs from the second floor and apprehended him. Another

detective observed Freeman at the bottom of the stairs and Franklin about half-way up the

stairs to the second floor.

{¶ 14} On the second floor in the bathroom, the detectives found appellant sitting

on a toilet in which the water had been running as if it had been recently flushed. The

detectives believed that 100 Ecstasy pills had been flushed down the toilet, and they

attempted to preserve the evidence by first removing appellant from the toilet seat and

then breaking the main stack of the toilet connecting the toilet to the sewer systems. The

detectives did not search inside the stack, but rather, chose to await a search warrant.

{¶ 15} Additionally, while conducting a protective sweep of the premises,

detectives observed in plain view in two upstairs bedrooms sophisticated marijuana grow

labs consisting of numerous marijuana plants. The detectives then secured the premises

and gathered the individuals in the first floor living room.

{¶ 16} In the living room, detectives identified the three individuals located in the

house at the time of the drug buy, Franklin, Freeman and appellant, and patted them 8 down. During the pat-down, the detectives found the buy money in Freeman’s pant

pocket. Both Freeman and appellant were then arrested. After securing the premises and

the individuals involved, the detectives did not further search the premises. Rather, they

awaited the arrival of Detective O’Connor and Lt. Caraballo, who left to prepare a

warrant to search the premises.

{¶ 17} After Freeman was read his Miranda rights by both Detective Zickes and Lt.

Caraballo, he acknowledged that his DNA would be on the Ecstasy pills if discovered.

He further provided that he resided at the 89th Street residence. When questioned about a

gun case in plain view, Freeman also admitted that a gun was located in the residence.

{¶ 18} Once Detective O’Connor and Lt. Caraballo obtained a warrant, they

returned to the 89th Street residence to search the premises. Detectives discovered two

elaborate marijuana growing labs that contained numerous potted marijuana plants, grow

lights, boxes of ductwork used for ventilation in growing operations, plant food, and

chemicals. The search of the premises also revealed little plastic baggies with residue on

them in the kitchen trash bags, baggies with Ecstasy pills inside, cell phones, a digital

scale, a large amount of cash, a Glock handgun, magazines of ammunition, and

miscellaneous papers, including a gas bill for the 89th Street residence in Atkinson’s

name. Additionally, detectives discovered a suitcase belonging to appellant containing

two cell phones, photographs, four Ecstasy pills, a Viagra pill, and a lease for another

residence in his name. The Ecstasy pills purchased by Franklin were never retrieved 9 from the house or its occupants. It is also important to note that Franklin did not know of

the appellant or even know that someone other than Freeman was in the house at the time

of the sale.

{¶ 19} Following the arrest of appellant and Freeman, Detective Miller testified,

that he placed the two in the back of a vehicle, unbeknowst to them, that was equipped

with a recording device. During this time, appellant chided Freeman for telling the

detectives the location of the Glock handgun.

{¶ 20} Appellant testified on his own behalf at the suppression hearing only. He

testified that Freeman is his nephew and the two were returning to the 89th Street

residence so that appellant could use the restroom, that the previous evening, he and his

girlfriend argued and he stayed the night at Freeman’s residence, that his suitcase, which

was later discovered by the detectives, contained some clothes, his passport, a lease to his

old house, photographs, and his college degree, that he was planning on returning to his

girlfriend’s house before detectives broke into the residence, that he was not aware of any

drugs or any other contraband in the house, that he was relieving himself on the tiolet

when the detectives arrived, and that he was ordered off the toilet and “stomped on”

before he could comply with their order.

{¶ 21} The jury found appellant not guilty of all the schoolyard specifications and

of the drug trafficking charge in Count 6. The jury, however, found appellant guilty of 10 all other charges, all firearm specifications, and all forfeiture specifications. The court

then found appellant guilty of having a weapon while under a disability.

{¶ 22} The trial court thereafter sentenced appellant to a prison term totaling ten

years. More specifically, the court merged Counts 1, 2, and 3, finding them allied

offenses of each other. Likewise, the court merged Counts 5 and 7. The court also

merged all the one-year firearm specifications and ordered them to be served prior to and

consecutive with the following: concurrent terms of five years for Counts 1, 2, 3, and 4;

four years on Count 9 to be served consecutively to the firearm specification and the other

convictions; and a concurrent term of one year for counts 5, 7, 11, and 12.

{¶ 23} Appellant appeals from his convictions and sentences with four assignments

of error.

{¶ 24} “I. The trial court erred when it denied the defendant Deondray

Creighton’s motion to suppress as the warrantless search of the premises violated

the Fourth Amendment as there was no probable cause for the search and seizure

and the exigent circumstances cited by sheriffs cannot be justified as they were of

their own making.

{¶ 25} “II. The appellant’s convictions are not supported by sufficient

evidence.

{¶ 26} “III. The appellant’s convictions are against the manifest weight of

the evidence. 11 {¶ 27} “IV. The trial court erred when it imposed consecutive sentences

without making findings required under R.C. 2929.13(E) of the Ohio Revised Code.”

{¶ 28} Appellant argues in his first assignment of error that the trial court erred in

not granting his motion to suppress because the detectives did not have exigent

circumstances to enter the 89th Street residence other than those created by themselves.

For the reasons stated in the appellate opinion in State v. Freeman, Cuyahoga App. No.

95608,

, regarding the exact same assigned error, we find appellant’s

argument without merit and overrule his first assignment of error.

{¶ 29} Appellant argues in his second and third assignments of error that his

convictions are not supported by the sufficient evidence or the manifest weight of the

evidence. There is circumstantial evidence from which the jury could infer that appellant

tampered with evidence, either by receiving the Ecstasy pills from Freeman or Franklin

and flushing the pills down the toilet stack, or, in an effort to impede the discovery of the

pills, sitting on the toilet seat after Freeman or Franklin flushed the pills. Other than this

circumstantial evidence, there is scant, little evidence to tie appellant to Freeman’s

criminal activities. At best, there is circumstantial evidence that appellant was an

“accessory after the fact” of the sale of the pills, which conduct was indicted as tampering

with evidence.

{¶ 30} In reviewing a challenge based upon sufficiency, this court must examine

the evidence presented at trial to determine whether, if believed, the evidence would 12 convince the average mind of the accused’s guilt beyond a reasonable doubt. State v.

Jenks (1991),

,

. The evidence must be viewed in the

light most favorable to the prosecution. State v. Martin (1983),

,

. Sufficiency is a question of law; the trial court determines whether the

state has met its burden to produce evidence on each element of the crime charged.

{¶ 31} In considering a challenge to the manifest weight of the evidence, the

reviewing court examines the entire record, weighs the evidence and all reasonable

inferences, 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 judgment must be

reversed. State v. Leonard,

,

,

, ¶81.

The discretionary power to grant a new hearing should be exercised only in the

exceptional case in which the evidence weighs heavily against the judgment. State v.

Thompkins,

, 387,

,

. Moreover, this court

must remain mindful that the weight of the evidence and the credibility of the witnesses

are matters primarily for the jury to assess. State v. DeHass (1967),

,

, paragraph one of the syllabus.

{¶ 32} When viewed in a light most favorable to the prosecution, the evidence in

this case supported appellant’s conviction for tampering with evidence. As the

detectives were breaking into the residence, they heard Franklin, the CI, shout “flush the

shit” and later heard running water from a toilet, and within minutes discovered appellant 13 sitting on the tiolet. Additionally, Franklin informed the detectives that Freeman grabbed

the 100 pills of purchased Ecstasy from him and took them upstairs where appellant was

located only to return downstairs without the drugs. In light of the foregoing, the jury

could infer that appellant tampered with evidence.

{¶ 33} Also, appellant’s conviction for tampering with evidence is not against the

manifest weight of the evidence. In support of its case, several detectives provided a

consistent story that they heard the toilet flushing or running water from the toilet and

found appellant sitting on the toilet seat. Additionally, Franklin testified that Freeman

ran upstairs with the Ecstasy pills and came back downstairs without them. The

detectives never found the Ecstasy pills. Finally, appellant did not offer evidence at trial

to rebut the state’s version of the events. Accordingly, we find appellant’s conviction for

tampering with evidence not against the manifest weight of the evidence.

{¶ 34} The evidence, however, is insufficient to sustain appellant’s various other

convictions. With regard to the convictions for drug trafficking and drug possession of

Ecstasy in an amount five times bulk but less than fifty, we find the state was unable to

establish that appellant had any specific involvement in the drug sale of the Ecstasy pills.

Franklin and Freeman never mentioned appellant during any of their phone conversations.

Additionally, during the drug transaction inside the 89th Street residence, the testimony

indicated appellant was upstairs the entire time. Appellant was never heard speaking

during any of the audio recordings, including the recording of the drug buy. Moreover, 14 there was no indication that appellant had an extended stay in the house. Rather, his

suitcase and its contents indicated appellant resided somewhere else and was there for a

brief duration. Finally, Franklin testified that he did not know appellant prior to the

evening of this incident and did not even know appellant was in the house at the time of

the drug buy. In light of the foregoing, we cannot conclude that there was sufficient

evidence supporting appellant’s convictions for drug trafficking in 100 pills of Ecstasy or

possession of said drugs.

{¶ 35} Likewise, for the same aforementioned reasons, the state was unable to

establish that appellant knew of and had an active participation in the illegal cultivation of

marijuana or possession of marijuana.

{¶ 36} Moreover, there was no evidence whatsoever that the cell phones that could

be linked to appellant were used for criminal purposes. The mere possession of cell

phones, not connected to criminal activity, alone is insufficient to sustain a conviction for

possession of criminal tools. As we have previously noted, “[t]he ubiquitousness of cell

phones is such that the mere possession of a cell phone is not ipso facto proof that it was

used in drug trafficking.” State v. Byers, 8th Dist. No. 94922,

, ¶9.

{¶ 37} Finally, with regard to the weapon under a disability and carrying a

concealed weapon convictions, the detectives recovered a Glock handgun from a console

of the couch in Freeman’s residence after Freeman told them where the handgun was

located. Appellant was never found with a firearm on his person or under his control. 15 The house was owned by Freeman, not appellant. One weapon retrieved from Freeman’s

89th Street residence can be linked to only one individual, Freeman. Thus, we reverse

appellant’s convictions for having a weapon while under a disability, carrying a concealed

weapon, and the one-year firearm specifications.

{¶ 38} In light of our decision reversing all of appellant’s convictions except for

his conviction for tampering with evidence, we decline to address his final assignment of

error challenging the validity of the trial court’s sentence as moot.

{¶ 39} In summary, we affirm appellant’s conviction for Count 4, tampering with

evidence, and reverse all remaining counts and specifications and remand for

resentencing.

It is ordered that appellee and appellant share the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. Case remanded to the trial court for

further proceedings.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

__________________________________ KENNETH A. ROCCO, JUDGE

JAMES J. SWEENEY, J., CONCURS; 16 MELODY J. STEWART, P.J., CONCURS IN JUDGMENT ONLY