Ohio Appellate Reports
Unpublished
STATE v. GRANT, Unpublished Decision (12-22-2006)
2006-Ohio-6821 STATE OF OHIO Plaintiff-Appellee v. ANDRE
GRANT Defendant-Appellant. No. 20909. Court of Appeals of
Ohio, Second District, Montgomery County. Rendered on
December 22, 2006.
[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] T.C. Case No. 04-CR-841/4 (Criminal Appeal
from Common Pleas Court).
MATHIAS H. HECK, JR., Prosecuting Attorney, By: R. LYNN
NOTHSTINE, Assistant Prosecuting Attorney, Atty. Reg.
#0061560, Appellate Division Ohio Attorneys for
Plaintiff-Appellee.
DAWN S. GARRETT, Atty. Reg. #0055565, Ohio Attorney for
Defendant-Appellant.
OPINION
FAIN, J.
{¶ 1} Defendant-appellant Andre Grant appeals from
his conviction and sentence for Possession of Criminal
Tools and Complicity to Possess Marijuana. Grant contends
that the trial court erred by denying his motion to
suppress evidence and by sentencing him to more than the
minimum possible sentence. Grant further contends that he
was denied the effective assistance of trial counsel, and
that his conviction is not supported by the evidence.
{¶ 2} We conclude that the trial court did not err
by denying Grant’s motion for suppression of evidence. We
also conclude that Grant’s claims that his trial counsel
was ineffective and that the evidence does not support his
conviction are not supported by the record. Finally, we
agree that the trial court erred in sentencing. Accordingly,
Grant’s convictions for Possession of Criminal Tools and
Complicity to Possess Marijuana are Affirmed, but his
sentence is Reversed, and this cause is Remanded for
resentencing in accordance with State v. Foster, 109 Ohio
St. 3d 1, 2006-Ohio-856.
1. I
{¶ 3} Following complaints of drug activity at 617
Edison Street in Dayton, the Dayton Police Department
initiated a controlled buy of illegal drugs via a
confidential informant. After a successful buy, a search
warrant was obtained for the residence. Prior to executing
the warrant, the police were given information about a gray
car near the residence. The police were concerned that the
person inside the vehicle was acting as a lookout for the
people inside the residence.
{¶ 4} While executing the warrant on the residence,
a couple of the officers approached a gray vehicle situated
“so as to have a clear view of 617 Edison.” The sole
occupant of the vehicle was Grant, who had a “small
walkie-talkie in his hand” and a small television in the
car. The officers noticed the smell of “burned marijuana”
emanating from the vehicle. Grant was removed from the car
and patted down. A search revealed no contraband on Grant’s
person or in the car. However, the walkie-talkie was
removed from the car and taken into evidence.
{¶ 5} Grant was indicted on one count of Possession
of Criminal Tools and one count of Complicity to Possess
Marijuana. Following a bench trial, Grant was found guilty
as charged. He was sentenced to ten months for Possession
of Criminal Tools and two years for Complicity to Possess
Marijuana, with the terms of imprisonment to be served
concurrently. From his conviction and sentence, Grant
appeals.
1. II
{¶ 6} Grant’s First Assignment of Error is as
follows:
{¶ 7} “THE TRIAL COURT ERRED, ABUSED ITS DISCRETION
AND VIOLATED DEFENDANT’S STATE AND FEDERAL CONSTITUTIONAL
RIGHTS WHEN IT ADMITTED EVIDENCE RETRIEVED FROM INSIDE THE
VEHICLE AS THE VEHICLE WAS NOT ON THE SEARCH WARRANT AND NO
ONE CONSENTED TO AUTHORIZE THE SEARCH OF THE VEHICLE.”
{¶ 8} Grant contends that the trial court erred by
denying his motion to suppress the evidence obtained during
the search of the gray vehicle. In support, he argues that
the police did not have authority to search the vehicle
because the search warrant did not include the vehicle and
because he did not consent to a search.
{¶ 9} The standard of review with respect to a
motion to suppress requires that an appellate court accept
the findings of the trial court so long as those findings
are supported by competent and credible evidence. State v.
Lander (Nov. 24, 1999), Montgomery App. No. 17635, citing
State v. Retherford (1994), 93 Ohio App.3d 586, 592.
“However, the appellate court reviews application of the
law to the facts de novo.” Id.
{¶ 10} At the suppression hearing Dayton Police
Officer David House testified that he had been out to the
residence at 617 Edison on two occasions during the course
of investigating complaints of drug activity. He testified
that on the date the warrant was executed, the team
“observed a gray color Dodge Stratus which was parked
directly across the street from 617 Edison and also
observed there was an individual sitting in the passenger
side of this vehicle.” House further testified that the
team had previously seen the car during the investigation
and that there was concern that the person in the car was
acting as a lookout for the persons selling narcotics in the
residence.
{¶ 11} Officer Bell testified that he was part of
the team sent to execute the warrant at the Edison
residence. He testified that his team had information that
a gray car in the area might be acting as a lookout for the
people inside the residence. He testified that he was
assigned the duty of making contact with the occupant of
the car while other officers executed the warrant on the
residence. Bell testified that as he approached the
vehicle, he observed Grant in the passenger seat with a
walkie-talkie in his hand. Bell also observed a small
television in the driver’s seat. Bell testified that as he
approached the car, Grant was opening the door to the
vehicle. When Bell got to the car, he also began to open
the door and told Grant to exit the car and to “show his
hands.” Bell testified that when the door was opened, he
detected a “strong odor of marijuana.” Bell testified that
he was familiar with the smell of marijuana having come
into contact with it “many times” in his tenure as a police
officer. Bell and his partner then secured Grant and patted
him down. Grant was placed under arrest at the scene.
{¶ 12} The trial court specifically stated that
Bell’s testimony was credible and that given the totality
of the circumstances, Bell had a reasonable, articulable
basis to investigate the car. The trial court further found
that the smell of marijuana provided the officer with
probable cause to suspect that Grant was involved in
criminal activity.
{¶ 13} We also note that the walkie-talkie and
television taken from the car had been observed by Officer
Bell as he approached the car. Thus, the items taken were
in plain view. We conclude that the trial court did not err
in determining that Bell, based upon the information
provided to the police and garnered from their surveillance,
had a reasonable, articulable suspicion that Grant was
involved in criminal activity. We further conclude that the
trial court did not err in finding that Bell had probable
cause to detain Grant after observing him with a
walkie-talkie and smelling marijuana. We further conclude
that the items admitted into evidence against Grant
— the television and the walkie-talkie — were
in plain view of Officer Bell and thus, Grant’s objections
to the seizure of those items lacks merit.
{¶ 14} The First Assignment of Error is overruled.
6 1. III
{¶ 15} The Second Assignment of Error is as follows:
{¶ 16} “THE TRIAL COURT ERRED, ABUSED ITS
DISCRETION, VIOLATED DEFENDANT’S CONSTITUTIONAL RIGHTS AND
FAILED TO COMPLY WITH THE OHIO FELONY SENTENCING GUIDELINES
WHEN IT A PRISON SENTENCE [SIC], AND MORE THAN THE MINIMUM,
ON APPELLANT’S FIRST CRIMINAL OFFENSE.”
{¶ 17} Grant contends that the trial court erred in
sentencing. Specifically, he asserts that the trial court
erred by imposing a prison sentence and by making that
sentence more than the minimum possible.
{¶ 18} In State v. Foster, 109 Ohio St.3d 1,
2006-Ohio-856, the Ohio Supreme Court held that parts of
Ohio’s felony sentencing scheme are unconstitutional,
including R.C. 2929.14(B), which required judicial
factfinding before imposition of more-than-minimum
sentences. Id., at paragraph one of the syllabus. Because
Foster held the statute under which Grant’s sentence was
imposed to be unconstitutional and severed it from the rest
of the sentencing provisions of the Revised Code, we must
reverse his sentence and remand this cause for a new
sentencing hearing. Foster, at If 104-105. The Second
Assignment of Error is sustained.
1. IV
{¶ 19} Grant asserts the following for his Third
Assignment of Error:
{¶ 20} “THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL
RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL.”
{¶ 21} Grant contends that his trial counsel did not
provide effective representation. Specifically, he claims
that trial counsel was ineffective for having waived his
right to trial by jury; for having failed to raise the
claim that his sentence was disparate when compared to the
sentences imposed upon his co-defendants or that the trial
court erred by sentencing him to more than the minimum
sentence; and for having failed to argue evidence regarding
fingerprints.
{¶ 22} In order to prevail on a claim of ineffective
assistance of counsel, a defendant must show both deficient
performance and resulting prejudice. Strickland v.
Washington (1984), 466 U.S. 668. To show deficiency, the
defendant must show that counsel’s representation fell
below an objective standard of reasonableness. Id. Trial
counsel is entitled to a strong presumption that his
conduct falls within the range of effective assistance. Id.
The adequacy of counsel’s performance must be viewed in
light of all of the circumstances surrounding the trial
court proceedings. Id. Hindsight may not be allowed to
distort the assessment of what was reasonable in light of
counsel’s perspective at the time. State v. Cook (1992), 65
Ohio St.3d 516, 524.
{¶ 23} Even if counsel’s performance is shown to
have been deficient, the defendant must still show that the
deficient performance had an effect on the judgment. State
v. Bradley (1989), 42 Ohio St.3d 136, 142. Reversal is
warranted only where the defendant demonstrates that there
is a reasonable probability that, but for counsel’s errors,
the result of the proceeding would have been different. Id.
{¶ 24} We begin with the claims that counsel was
ineffective for having failed to raise arguments regarding
any defects in Grant’s sentence, and note that those issues
have been rendered moot by our disposition of the Second
Assignment of Error, in Part III, above.
{¶ 25} Next, Grant claims that the “items in the car
appeared to have been dusted for fingerprints,” and that
the record does not contain any evidence regarding the
results of that testing. Thus, he contends that trial
counsel was deficient for having failed to “raise any issue
regarding the missing fingerprinting evidence.”
{¶ 26} From our review of the record, we cannot say
whether the television or walkie-talkie were dusted for
fingerprints. Thus, we cannot say that trial counsel was
ineffective for having failed to raise such an argument.
{¶ 27} Finally, Grant contends that trial counsel
fell below the standard of reasonableness by having failed
to request a jury trial. In support, he claims that “it
would certainly appear from the sentencing hearing that the
sins of the other Defendants were strongly held against Mr.
Grant.” He further argues that “his counsel should not have
let his case be judged by the trial judge alone with her
being influenced by facts with regard to the other
defendants.”
{¶ 28} We have reviewed this record and find no
evidence that the trial court was improperly biased against
Grant or that the trial court punished him because of the
behavior of his co-conspirators. As we have previously
stated, “[w]hether to try a case to the bench or to a jury
is matter of trial strategy. Even debatable trial tactics
do not establish the ineffective assistance of counsel.”
Dayton v. Turic, Montgomery App. 20149, 2005-Ohio-131,
¶ 14. “Moreover, we can only speculate as to whether
[Grant] would have been more favorably received by a jury.”
Id. To the extent that Grant alleges that support for this
claim exists outside the record, we note that he is
restricted to the petition for post-conviction relief which
he says he has filed in the trial court.
{¶ 29} The Third Assignment of Error is overruled.
1. V
{¶ 30} Grant’s Fourth Assignment of Error is as
follows:
{¶ 31} “THE VERDICT WAS BASED UPON INSUFFICIENT
EVIDENCE AND/OR CONTRARY TO THE MANIFEST WEIGHT OF THE
EVIDENCE.”
{¶ 32} Grant contends that his conviction is not
supported by the evidence, and is against the manifest
weight of the evidence.
{¶ 33} A sufficiency of the evidence argument
challenges whether the State has presented adequate
evidence on each element of the offense to allow the case
to go to the jury or to sustain the verdict as a matter of
law. State v. Thompkins, 78 Ohio St.3d 380, 387,
1997-Ohio-52. The proper test to apply to such an inquiry
is the one set forth in paragraph two of the syllabus of
State v. Jenks (1991), 61 Ohio St.3d 259: “An appellate
court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the
evidence admitted at trial to determine whether such
evidence, if believed, would convince the average mind of
the defendant’s guilt beyond a reasonable doubt. The
relevant inquiry is whether, after viewing the evidence in
a light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of
the crime proven beyond a reasonable doubt.”
{¶ 34} In contrast, when reviewing a judgment under
a manifest weight standard of review, “[t]he court
reviewing the entire record, weighs the evidence and all
reasonable inferences, considers the credibility of
witnesses and determines whether in resolving conflicts in
the evidence, the [factfinder] clearly lost its way and
created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered. The
discretionary power to grant a new trial should be
exercised only in the exceptional case in which evidence
weighs heavily against the conviction.” Thompkins, supra,
quoting State v. Martin (1983), 20 Ohio App.3d 172, 175.
{¶ 35} In order to be convicted of Complicity, an
aider and abettor must share the criminal intent of the
principal. R.C. 2923.03. The offense of Possession of
Marijuana is proscribed by R.C. 2925.11(A) which states
that “no person shall knowingly obtain, possess, or use a
controlled substance.” “Knowingly” is defined by R.C.
2901.22(B) which states that “a person acts knowingly,
regardless of his purpose, when he is aware that his
conduct will probably cause a certain result or will
probably be of a certain nature. A person has knowledge of
circumstances when he is aware that such circumstances
probably exist.”
{¶ 36} R.C. 2923.24(A) provides that “no person
shall possess or have under the person’s control any
substance, device, instrument, or article, with purpose to
use it criminally.”
{¶ 37} Grant’s claim that the State failed to
produce evidence sufficient to support his conviction for
Complicity to Possess Marijuana is based upon his argument
that he was not in possession of any drugs, that he was
never seen in the residence where the marijuana was
located, and that he was never seen during any of the
surveillance prior to the execution of the warrant.
Likewise, he argues that the State did not present evidence
sufficient to support the conviction for Possession of
Criminal Tools because there was no evidence showing that he
operated the walkie-talkie and because he did not, in
actuality, have possession of the walkie-talkie.
{¶ 38} We disagree. The evidence demonstrates that
Grant was in a parked vehicle watching a small travel
television while his wife’s uncle was inside the
residence.[fn1] The vehicle was parked so as to have full
and clear view of the residence. The police had previously
observed a vehicle similarly parked that was being used as
a post for a lookout. The police also observed the vehicle
on the date the warrant was executed. According to the
testimony of Officer Bell, he observed Grant in the car
with a walkie talkie in his hand. The evidence showed that
the walkie talkie in Grant’s possession matched a walkie
talkie inside the residence and that Grant’s walkie talkie
was compatible with the charging units inside the
residence. The vehicle smelled of burned marijuana —
a fact acknowledged by Grant. Inside the residence, the
police found over two thousand grams of marijuana, guns,
cocaine and cash in excess of six thousand dollars.
{¶ 39} Based upon these facts, we conclude that the
trial court could reasonably find that Grant had in his
possession a walkie talkie matching the walkie talkie and
charger found in the drug house, and that the purpose of
the walkie talkie was to warn the individuals inside the
drug house. We further conclude that the trial court could
reasonably find that Grant was acting as a lookout for the
persons inside the drug house. The evidence also leads to
the inference that Grant was aware of the marijuana inside
the house, and that he was therefore complicit in the
possession thereof. {¶ 40} We further conclude that
the judgment of the trial court is not against the manifest
weight of the evidence. The inferences that Grant was
acting as a lookout in furtherance of a criminal
enterprise, knew that marijuana was unlawfully possessed in
the house, and was using the walkie talkie as a tool in his
capacity as a lookout are all reasonable inferences.
{¶ 41} The Fourth Assignment of Error is overruled.
1. VI
{¶ 42} Grant’s First, Third and Fourth assignments
of error having been overruled, his convictions for
Complicity to Possess Marijuana and Possession of Criminal
Tools are Affirmed. His Second Assignment of Error having
been sustained, the sentence is Reversed, and this cause is
Remanded for resentencing in accordance with State v.
Foster, supra.
GRADY, P.J., and BROGAN, J. concur.
[fn1] The uncle was charged with, and subsequently convicted
of, Possession of Marijuana and Possession of Criminal
Tools.