[Cite as State v. Hamilton,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

STATE OF OHIO C.A. No. 15CA010830

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE LARRY E. HAMILTON COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO Appellant CASE No. 14CR090425

DECISION AND JOURNAL ENTRY

Dated: January 23, 2017

CARR, Presiding Judge.

{¶1} Appellant Larry Hamilton appeals his conviction in the Lorain County Court of

Common Pleas. This Court affirms in part, reverses in part, and remands.

I.

{¶2} Hamilton was indicted on two counts of trafficking in drugs (cocaine), both of

which included major drug offender and forfeiture specifications; one felony count of possession

of drugs (cocaine), which included a major drug offender specification; one count of possessing

criminal tools; one count of drug paraphernalia offenses; and one minor misdemeanor count of

possession of drugs (marijuana). He filed a motion to suppress all evidence seized from his

residence and as a result of trash pulls. After a hearing on the motion, the trial court denied the

motion. The court reasoned, first, that Fourth Amendment protections do not extend to trash

voluntarily left beyond the curtilage of a home. Hamilton conceded as much in his motion to

suppress. Second, the trial court found that, even were it to strike all averments in the affidavit 2

that Hamilton alleged were false, there was still probable cause to search Hamilton’s home under

the totality of the circumstances. Finally, the trial court noted that there was no requirement that

the detective-affiant indicate that the confidential informant on whom the detective relied was

reliable, given the existence of corroborating information.

{¶3} The matter proceeded to trial. The State dismissed one count of trafficking in

cocaine. At the conclusion of trial, the jury found Hamilton guilty of the remaining five counts,

additionally finding that the amount of cocaine relative to the trafficking and possession counts

was equal to or exceeded 100 grams. Hamilton waived his right to a jury determination

regarding the forfeiture specification appended to the trafficking charge and instead stipulated to

forfeiture of $19,135.00 in U.S. currency. At sentencing, the trial court found Hamilton to be a

major drug offender. It further merged the possession of cocaine charge into the trafficking

charge and sentenced Hamilton to 11 years in prison and ordered him to pay a fine of $10,000

for trafficking. After imposing periods of incarceration on the remaining three counts, ranging

from “no time” to 11 months, the court ordered that all sentences would run concurrently. The

trial court further suspended Hamilton’s payment of the mandatory fine due to his indigency.

Hamilton timely appealed and raises four assignments of error for review. This Court rearranges

some assignments of error and consolidates others to facilitate review.

II.

ASSIGNMENT OF ERROR IV

THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO SUPPRESS THE EVIDENCE WHEN IT WAS CLEARLY DEMONSTRATED THAT THE LORAIN POLICE DEPARTMENT RELIED ON FALSE AND UNRELIABLE INFORMATION TO SECURE A SEARCH WARRANT OF 1485 F STREET, LORAIN, OHIO. 3

{¶4} In his fourth assignment of error, Hamilton argues that the trial court erred by

denying his motion to suppress because the police department relied on false and unreliable

information when seeking a search warrant of Hamilton’s residence. This Court disagrees.

{¶5} Hamilton does not argue that the affidavit underlying the search warrant was

deficient on its face. Instead, he argues from two perspectives that the detective-affiant made

false statements to support a finding of probable cause to issue the search warrant. First, he

argues that the detective-affiant must have relied on information provided by an unreliable

confidential informant because he did not aver as to the informant’s reliability. This Court has

held, however, that “‘[t]here is no need for a declaration of the reliability of an informant when

the informant’s information is corroborated by other information.’” State v. Norris, 9th Dist.

Wayne No. 05CA0081,

, quoting State v. Fisher, 9th Dist. Summit No.

22481,

. Accordingly, “where an affidavit sufficiently details some of the

underlying circumstances, where the reason for crediting the informant is given, and where

probable cause is or has been found, this Court should not rely on a hyper-technicality to

invalidate a warrant. Instead, the affidavit should be interpreted in a common sense manner.”

(Internal citations omitted.) Norris at ¶ 10. Probable cause exists when the totality of the

circumstances indicates a mere probability of criminal activity. Id. at ¶ 11.

{¶6} In this case, Detective Howard Heathcoat of the Lorain Police Department

averred that an unnamed confidential informant reported that Hamilton was engaged in drug

trafficking activities involving cocaine at the residence he shared with his live-in girlfriend. The

confidential informant provided information regarding Hamilton’s manner of transporting the

cocaine, how frequently he obtained the drug, and that he brought it into the residence. The

detective further averred that he was aware of Hamilton’s significant drug trafficking history in 4

both the City of Lorain and Lorain County. Surveillance on the residence indicated the comings

and goings of several known drug dealers. A series of ten trash pulls over a six-and-a-half month

period from garbage discarded from the residence produced evidence of (1) Hamilton’s use of

the address as his residence (mail addressed to him), (2) cocaine residue on various items at

various times, and (3) multiple empty bottles of a non-controlled substance known to be used as

a cutting agent for illegal drugs.

{¶7} Given the affidavit’s sufficient detail as to the underlying circumstances; the

confidential informant’s report that corresponded with Hamilton’s known history; and evidence

demonstrating the probability of criminal activity, coupled with our precedent eschewing a

requirement that the affiant aver that a confidential informant is reliable, this Court concludes

that the trial court did not err by refusing to find that the detective-affiant relied on unreliable

information in his affidavit in support of the search warrant.

{¶8} Second, Hamilton argues that Detective Heathcoat included false or misleading

information in his affidavit to secure a search warrant. Hamilton does not argue that any specific

information in the affidavit is false; rather, he argues that some of the information is misleading

because the detective omitted certain information. Specifically, Hamilton argues that, although

field tests on some substances found during the ten trash pulls produced positive results for

cocaine, some of the subsequent lab results did not validate the field tests. The reasonable

inference we glean from Hamilton’s argument, therefore, is that some information regarding the

presence of cocaine in the trash obtained from Hamilton’s residence was false. Although

Hamilton did not expressly request that the trial court strike any reference in the affidavit to field

tests that were not ultimately corroborated by lab test results, the appropriate remedy would be to 5

strike the false or misleading information. See State v. Dibble,

, 2012-Ohio-

4630, ¶ 17, quoting Franks v. Delaware,

(1978).

{¶9} As this Court has written:

To successfully attack the veracity of a facially sufficient search warrant affidavit, a defendant must show by a preponderance of the evidence that the affiant made a false statement, either intentionally, or with reckless disregard for the truth. State v. Waddy,

(1992), quoting Franks,

. Reckless disregard means that the affiant had serious doubts about the truth of an allegation. State v. McKnight,

,

, ¶ 31, quoting United States v. Williams,

(7th Cir. 1984). Omissions count as a false statement if designed to mislead, or * * * made in reckless disregard of whether they would mislead, the magistrate. McKnight at ¶ 31, quoting United States v. Colkley,

(4th Cir. 1990).

(Internal quotations omitted.) State v. Jackson, 9th Dist. Lorain No. 14CA010593, 2015-Ohio-

3520, ¶ 22.

{¶10} Hamilton argues that the trial court erred by denying his motion to suppress based

on an application of the test enunciated in

and summarized as follows:

[A] court considering whether to suppress evidence based on an allegation that the underlying affidavit contained false statements must apply a two-part test: (1) whether the defendant has proven by a preponderance of the evidence that the affidavit contains deliberately or recklessly false statements and (2) whether the affidavit, without the false statements, provides the requisite probable cause to sustain the warrant.

United States v. Charles,

(6th Cir. 1998).

{¶11} At the suppression hearing, Detective Heathcoat admitted that he had some lab

results from the many pieces of trash collected and suspected to contain controlled substances.

He admitted that he did not include any lab results in his affidavit and, moreover, that many of

the samples which tested presumptively positive for cocaine during field tests ultimately tested

negative in the lab. The detective testified that he was not surprised that lab results contradicted

some field test results because the field tests are not always accurate. 6

{¶12} The trial court emphasized that it did not find that Hamilton had met his burden of

proving by a preponderance of the evidence that Detective Heathcoat provided false information

or that he was reckless or deliberate in that regard. However, the trial court assumed for the sake

of argument that Hamilton met the first prong of the Franks test and went on to consider whether

the affidavit provided the requisite probable cause in support of the warrant even after the

redaction of the detective’s statements regarding positive field tests that later proved to be

negative for controlled substances. This Court, too, assumes without deciding that Hamilton met

his burden of proof to show that the affidavit contained deliberately or recklessly false

statements.

{¶13} Hamilton, however, makes no argument on appeal regarding the information

which he believes must be stricken from the affidavit or how such a redacted affidavit fails to

demonstrate probable cause to support the issuance of the search warrant. Although Hamilton

cites law for the proposition that a search warrant must be voided and the fruits of the search

excluded if the affidavit’s remaining content after the false or misleading portions have been

stricken does not support probable cause, he makes no argument as to why the remaining content

does not support probable cause. This Court has frequently written that we will not create an

argument for an appellant who is responsible for providing a roadmap to guide our review.

Princess Kim, L.L.C. v. U.S. Bank, N.A., 9th Dist. Summit No. 27401,

.

Nevertheless, even disregarding all references in the affidavit to positive field tests which

ultimately were not verified by laboratory results, the remaining averments supported a finding

of probable cause to sustain the search warrant. The first, fifth, eighth, ninth, and tenth trash

pulls yielded numerous pieces of evidence that tested both presumptively positive after a field 7

test and definitively positive after laboratory testing. Accordingly, the trial court did not err by

denying Hamilton’s motion to suppress. The fourth assignment of error is overruled.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED IN LETTING THIS CASE GO TO THE JURY WHEN THERE WAS NOT SUFFICIENT, COMPETENT EVIDENCE IDENTIFYING THE DISPUTED SUBSTANCE AS “COCAINE” AS DEFINED BY R.C. 2925.01(X).

{¶14} Hamilton’s assertion that there was insufficient evidence to identify the alleged

controlled substance as “cocaine” to support his convictions for trafficking and possession is

premised on the argument that only the weight of the pure cocaine, and not the additional weight

of any cutting or diluting agents, may be considered for purposes of determining the penalty

level of the offenses of trafficking and possession of cocaine. Although Hamilton frames his

argument in terms of sufficiency, we recognize that the substance of his argument is that the

State failed to present evidence to support an enhanced penalty for possession and trafficking in

cocaine because it must have presented evidence of the actual weight of the cocaine exclusive of

any filler materials or cutting agents. As the Supreme Court of Ohio has recently determined this

issue, we find Hamilton’s arguments well taken.

{¶15} Hamilton was convicted of trafficking in cocaine in violation of R.C.

2925.03(A)(2), and possession of cocaine in violation of R.C. 2925.11(A). The penalties for

both offenses increase as the weight of the cocaine increases. R.C. 2925.03(C)(4); R.C.

2925.11(C)(4). The relevant penalty sections contained in R.C. 2925.03(C)(4)(g) and R.C.

2925.11(C)(4)(f) are identical in relevant part as it relates to this discussion. Both provisions

provide: “If the amount of the drug involved equals or exceeds one hundred grams of cocaine,

[possession of and trafficking in] cocaine [are] felon[ies] of the first degree, the offender is a

major drug offender, and the court shall impose as a mandatory prison term the maximum prison 8

term prescribed for a felony of the first degree.” R.C. 2925.03(C)(4)(g) and R.C.

2925.11(C)(4)(f). Where the amount of cocaine does not meet certain threshold amounts,

however, possession of cocaine and trafficking in cocaine constitute felonies of the fifth degree.

R.C. 2925.11(C)(4)(a); R.C. 2925.03(C)(4)(a). In other words, where cocaine is involved in the

commission of these offenses, yet the State fails to prove that the amount was equal to or

exceeded five grams, the offenses constitute felonies of the fifth degree.

{¶16} In State v. Gonzales, Slip Opinion No.

, the Supreme Court of

Ohio certified a conflict question regarding whether the State, “in prosecuting cocaine offenses

involving mixed substances under R.C. 2925.11(C)(4)[(b)] through (f), [must] prove that the

weight of the cocaine meets the statutory threshold, excluding the weight of any filler materials

used in the mixture?” (Emphasis added.) Gonzales at ¶ 1. In a split decision, the high court

concluded that the provisions of the possession statute addressing the penalty hierarchy based on

the amount of cocaine involved were not ambiguous. Id. at ¶ 20. Moreover, based on what it

concluded to be the plain language of those provisions, the Gonzales court held that the State

must prove the weight of the “actual cocaine” involved in cocaine possession offenses, exclusive

of the weight of any filler material or cutting agents. Id. at ¶ 22. Immediately thereafter, the

Supreme Court of Ohio expanded its holding in Gonzales regarding the possession of cocaine to

the offense of trafficking in cocaine. State v. Sanchez, Slip Opinion No.

.

Accordingly, to substantiate an enhanced penalty for convictions for possession and trafficking

in cocaine pursuant to R.C. 2925.11(C)(4) and R.C. 2925.03(C)(4), the State must prove the

weight of the actual cocaine, excluding any filler or cutting agents, involved in the offenses.

{¶17} In State v. Jackson, 9th Dist. Lorain No. 15CA010828,

, this

Court came to the opposite conclusion. The defendant there argued that his trafficking and 9

possession of cocaine convictions were based on insufficient evidence and were against the

manifest weight of the evidence because the State failed to present evidence of the amount of

“pure cocaine” involved in the offenses. Jackson at ¶ 6. This Court considered the language of

R.C. 2925.03(C)(4) and R.C. 2925.11(C)(4) regarding “the amount of the drug involved” for

penalty purposes, found it to be ambiguous, applied the relevant canons of construction, and

concluded that “it is the total aggregate weight of the drug involved which is determinative.

Whether the substance is pure cocaine or diluted is inconsequential.” Id. at ¶ 7-15. In addition,

we concluded that our interpretation of the penalty provisions was supported by both the

legislative history and historical treatment of the statutes. Id. at ¶ 16. As a result, this Court held

that “the proper standard for determining the weight of the drug involved in a trafficking or

possession of cocaine offense is the total weight of the drug involved, including the pure cocaine

and any cutting agents * * *.” Id. at ¶ 19. As we are constrained by the binding authority of the

Supreme Court’s holdings in Gonzales and Sanchez, however, this Court overrules our precedent

in Jackson. We accordingly hold that the State must prove the weight of the actual cocaine

involved in the crimes of possession of cocaine and trafficking in cocaine, excluding any cutting

agents or filler materials to support an enhanced penalty. Hamilton’s first assignment of error is

sustained.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED WHEN IT INSTRUCTED THE JURY THAT THE AMOUNT OF CONTROLLED SUBSTANCE INCLUDES THE WEIGHT OF ANY MIXTURE THAT INCLUDES SOME DETECTIBLE AMOUNT OF A CONTROLLED SUBSTANCE.

{¶18} Hamilton argues that the trial court erred by failing to instruct the jury that the

amount of cocaine involved with respect to the possession and trafficking offenses must be

determined by the weight of the actual cocaine exclusive of any filler or cutting agents. Based 10

on our resolution of the first assignment of error, this Court declines to address the second

assignment of error as it has been rendered moot. See App.R. 12(A)(1)(c).

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED BECAUSE THE GUILTY VERDICTS IN THIS CASE ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND SHOULD BE REVERSED BECAUSE THE[Y] VIOLATE THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION, AND ARTICLE I, SECTION 10 OF THE CONSTITUTION OF THE STATE OF OHIO.

{¶19} Hamilton argues that his convictions are against the manifest weight of the

evidence. Specifically, Hamilton argues that the jury’s finding that he possessed any of the

contraband underlying the offenses was against the manifest weight of the evidence. This Court

disagrees.

In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate court must review 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 trier of fact 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. Otten,

(9th Dist. 1986).

Weight of the evidence concerns the tendency of a greater amount of credible evidence to support one side of the issue more than the other. State v. Thompkins,

(1997). Further when reversing a conviction on the basis that it was against the manifest weight of the evidence, an appellate court sits as a “thirteenth juror,” and disagrees with the factfinder’s resolution of the conflicting testimony.

State v. Tucker, 9th Dist. Medina No. 06CA0035-M,

.

{¶20} This discretionary power should be exercised only in exceptional cases where the

evidence presented weighs heavily in favor of the defendant and against conviction. Thompkins,

. 11

{¶21} As Hamilton limits his argument to the issue of possession, i.e., whether he had

control over the drugs, criminal tools, or paraphernalia found at 1485 F Street, Lorain, Ohio, so

do we. Moreover, we further limit our discussion to the issue of whether Hamilton’s convictions

as to the underlying offenses, exclusive of the issue of any penalty enhancements, were against

the manifest weight of the evidence.

{¶22} Hamilton was convicted of possession of drugs (cocaine and marijuana),

possession of criminal tools, and possession of drug paraphernalia. “No person shall knowingly

* * * possess * * * a controlled substance * * *.” R.C. 2925.11(A). “No person shall possess or

have under the person’s control any substance, device, instrument, or article, with purpose to use

it criminally.” R.C. 2923.24(A). “[N]o person shall knowingly use, or possess with purpose to

use, drug paraphernalia.” R.C. 2925.14(C)(1). R.C. 2901.22(B) states that “[a] person acts

knowingly, regardless of purpose, when the person is aware that the person’s conduct will

probably cause a certain result or will probably be of a certain nature. A person has knowledge

of circumstances when the person is aware that such circumstances probably exist.”

{¶23} “Possess” or “possession” is defined as “having control over a thing or substance,

but may not be inferred solely from mere access to the thing or substance through ownership or

occupation of the premises upon which the thing or substance is found.” R.C. 2925.01(K). R.C.

2901.21(D)(1) states that “[p]ossession is a voluntary act if the possessor knowingly procured or

received the thing possessed, or was aware of the possessor’s control of the thing possessed for a

sufficient time to have ended possession.” It is well settled that “a person may knowingly

possess a substance or object through either actual or constructive possession.” State v. See, 9th

Dist. Lorain No. 08CA009511,

, ¶ 10, quoting State v. Hilton, 9th Dist. Summit

No. 21624,

. “‘Constructive possession exists when an individual 12

knowingly exercises dominion and control over an object, even though that object may not be

within his immediate physical possession.’” State v. Reis, 9th Dist. Summit No. 26237, 2012-

Ohio-2482, ¶ 7, quoting State v. Hankerson,

(1982), syllabus. As this Court

recognizes, “[t]he crucial issue is not whether the accused had actual physical contact with the

article concerned, but whether the accused was capable of exercising dominion [and] control

over it.” (Internal quotations omitted.) Reis at ¶ 7, quoting State v. Graves, 9th Dist. Lorain No.

08CA009397,

, quoting State v. Ruby,

, 2002-Ohio-

5381, ¶ 30 (2d Dist.). Inherent in the notions of dominion and control is some authority over the

object, not merely the ability to have access to it. See R.C. 2925.01(K). Nevertheless,

“constructive possession may be inferred from the drugs’ presence in a usable form and in close

proximity to the defendant.” State v. Figueroa, 9th Dist. Summit No. 22208,

, citing State v. Thomas, 9th Dist. Summit No. 21251,

, ¶ 11. In addition,

“[c]ircumstantial evidence is itself sufficient to establish dominion and control over the

controlled substance.” Hilton,

. Moreover, “[p]ossession of a drug

includes possessing individually, or jointly with another person. Joint possession exists when

two or more persons together have the ability to control an object, exclusive of others.” Figueroa

at ¶ 8, quoting State v. Alicea, 8th Dist. Cuyahoga No. 78940,

, *6 (Oct. 18,

2001).

{¶24} The Lorain Police Department initiated an investigation relating to 1485 F Street,

in Lorain, after receiving complaints that Hamilton was selling drugs out of that residence.

Various police detectives conducted surveillance and saw Hamilton come and go from the

residence. The police conducted ten trash pulls from garbage discarded at the residence and

found various pieces of mail addressed to Hamilton. After obtaining a search warrant for the 13

residence based in part on evidence of cocaine and marijuana residue on certain items discarded

in the trash, the police searched the home. They first conducted surveillance for over an hour at

the residence and saw three cars arrive and leave in quick succession, a common occurrence at

drug houses. Hamilton did not arrive or depart in those vehicles. Upon executing a knock,

announce, and enter protocol, the police found a naked Hamilton in the upstairs master bedroom

with his girlfriend. More mail and documents belonging to Hamilton were found in the home.

The police found both Hamilton’s and his girlfriend’s state identification cards in a dresser

drawer, along with a large sum of cash. In addition, men’s hats and clothing and men’s cologne

were found in the master bedroom, along with some amount of powder cocaine and crack

cocaine. Chemical testing verified these substances as cocaine. Baggies, a scale, hammer,

strainer, and a known drug cutting agent, along with small pieces of cocaine which speckled the

kitchen counter, and over $19,000.00 in various places throughout the house, indicated that the

residence was “being run” as a drug house. Based on their experience, the police detectives

involved in this case testified that anyone inside such a house is trafficking in drugs and turning a

large profit, rather than merely making personal, recreational use of drugs.

{¶25} The police admitted that they did not attempt to determine whose name was on

the lease to the residence, who paid the utilities in the home, or to whom a vehicle parked in the

driveway was registered. Although some mail addressed to Hamilton, as well as his state

identification card (which had expired two years earlier), noted addresses other than the F Street

address, the police detectives testified that people engaged in illegal activities like drug

trafficking tend not to update their addresses or maintain current forms of identification, register

vehicles, or execute leases, so as to “fly under the radar” and avoid tracking by police. Based on 14

the collective experience of the police detectives, moreover, it is common that male drug

traffickers engage in those activities in their girlfriends’ homes.

{¶26} A thorough review of the record indicates that this is not the exceptional case

where the evidence weighs heavily in favor of Hamilton. The weight of the evidence supports

the conclusion that Hamilton possessed the drugs and other contraband found during the search

of 1485 F Street, in Lorain. There was indicia of his residence in the home, including mail,

personal belongings, an identification card, and his repeated presence. The evidence indicated

that he lived there with his girlfriend. Given his proximity to the drugs and other contraband,

there was a reasonable inference that Hamilton constructively possessed those items. The large

sums of money found throughout the residence, along with the locations and prevalence of drug-

related and trafficking-related items throughout the residence indicated that Hamilton had the

ability to exercise dominion and control over those items. Accordingly, Hamilton’s convictions

for possession of cocaine, possession of marijuana, possession of criminal tools, and possession

of drug paraphernalia are not against the manifest weight of the evidence. The third assignment

of error is overruled.

III.

{¶27} Hamilton’s first assignment of error is sustained. We decline to address the

second assignment of error. The third and fourth assignments of error are overruled. The

judgment of the Lorain County Court of Common Pleas is affirmed in part, reversed in part, and

the cause is remanded for further proceedings consistent with this opinion.

Judgment affirmed in part, reversed in part, and remanded. 15

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed equally to both parties.

DONNA J. CARR FOR THE COURT

WHITMORE, J. SCHAFER, J. CONCUR.

APPEARANCES:

JACK W. BRADLEY, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and ELIZABETH LINDBERG, Assistant Prosecuting Attorney, for Appellee.