State Of Ohio v. Parker
| Decision Date | 10 March 2011 |
| Docket Number | No. 93835,93835 |
| Parties | STATE OF OHIO PLAINTIFF-APPELLEE v. MICHAEL PARKER DEFENDANT-APPELLANT |
| Court | Ohio Court of Appeals |
FOR APPELLANT
Michael Parker, pro se
ATTORNEYS FOR APPELLEE
Deborah Naiman
Assistant Prosecuting Attorneys
{¶ 1} Appellant, Michael Parker, challenges his convictions for drug possession and possession of criminal tools and his resultant ten-year prison term. After a thorough review of the record and law, we affirm appellant's convictions and sentence.
{¶ 2} Using a new confidential informant, Detective Michael Alexander with the Cleveland Police Department initiated a controlled purchase of several pounds of marijuana from co-defendant Robert Moore on February 13, 2009. Officers followed Moore for several hours after the buy until it wasapparent to the surveillance detail that Moore had discovered their presence. They then arrested him. Following the arrest, officers searched him and his vehicle and found various items, including a rent receipt dated the same day for a warehouse on South Miles Road in Warrensville Heights, Ohio (the "warehouse").
{¶ 3} Officers executed search warrants for the warehouse and for Moore's residence on Concord Drive in Beachwood, Ohio (the "Concord home"). Appellant was the record owner of the Concord home, and the lease agreement for the warehouse was in his name.
{¶ 4} While the officers waited for the search warrants to be approved, they used Moore's keys to enter both the warehouse and the Concord home to secure the premises to ensure no one was inside. After securing these locations, the officers set up surveillance outside and waited for the warrants to be issued. At the Concord home, the officers found close to $400,000, marijuana, packaging materials, drug ledgers, bank statements, guns, ammunition, and a bullet-proof vest. A search of the warehouse revealed suspected drug ledgers, packaging materials, and items for a business that contained the names of appellant and Moore. Officers also found slashed tires, which are indicative of one method used to transport drugs.
{¶ 5} The confidential informant told the police that a large quantity of marijuana would be delivered to Moore. The informant did not know whenthe delivery would occur, but said it would be delivered by "some Mexicans." Because the detectives knew that Moore had recently paid rent for the warehouse, even though he told officers that this business was no longer operating, they set up surveillance at the warehouse on the night of February 14, 2009 and into the early morning hours the next day.
{¶ 6} Just after 6:00 a.m. on Sunday, February 15, a semi-truck pulled into the warehouse; no other businesses appeared to be open at that time. After the semi-truck pulled into the lot, Det. Alexander stopped a car traveling down the driveway to the warehouse. This vehicle, titled to appellant, had two occupants — Tiodoso Higuera and Juan Huerta. These two men were eventually arrested. Appellant arrived a few hours later and was stopped and detained while the police arranged a search warrant to examine the contents of the semi-truck. The police discovered approximately one-and-one-half tons of marijuana, and appellant was arrested.
{¶ 7} On February 18, 2009, appellant was indicted, along with several co-defendants, on charges of drug trafficking and drug possession in excess of 20,000 grams, carrying a concealed weapon, and possession of criminal tools. The first two counts each carried a one-year firearm specification, and all counts carried forfeiture specifications.
{¶ 8} Appellant filed a motion to suppress evidence obtained from the search of his home and the warehouse. On May 5, 2009, a suppressionhearing was held where appellant challenged the propriety of the search of the Concord home and warehouse. He alleged that officers entered these locations prior to obtaining a search warrant and that any subsequent search pursuant to a warrant was invalid as a result. The trial court denied appellant's motion to suppress on May 29, 2009. However, on June 5, 2009, appellant moved to reopen the suppression hearing arguing that the search warrant affidavits contained materially false information. A Franks 1 hearing was conducted, which concluded with the trial court denying appellant's motion.
{¶ 9} Appellant's trial was severed from those of his co-defendants, and the indictment was revised accordingly. Appellant also moved to try the forfeiture specification to the bench. Trial began on July 21, 2009 and concluded with the jury finding appellant not guilty of drug trafficking, but guilty of drug possession and possession of criminal tools. The trial court had granted appellant's Crim.R. 29 motion for the charge of carrying a concealed weapon because appellant had a valid concealed carry permit. The trial court found in the state's favor on the forfeiture specifications. On April6, 2009, appellant was sentenced to an aggregate term of incarceration of ten years.2 Appellant then filed the instant appeal.
{¶ 10} Appellant argues six assigned errors and eleven supplemental assigned errors in the instant appeal.3
{¶ 11} In appellant's first assignment of error, he argues that the indictment was defective, stating, "[t]he conviction of appellant is in violation of [his] right to a valid grand jury indictment in contravention of Section X, Article I of the Ohio Constitution." Appellant argues that the indictment actually lists a number of separate incidents involving drugs that should be charged separately.
{¶ 12} U.S. v. Cruikshank (1875), 92 U.S. 542, 558, 23 L.Ed. 588.
{¶ 13} When reviewing an indictment, the Ohio Supreme Court has directed appellate courts to apply a structural-error analysis. State v. Lozier, 101 Ohio St.3d 161, 2004-Ohio-732, 803 N.E.2d 770, ¶19. "Structural errors" are constitutional defects that "defy analysis by 'harmless error' standards" because they "'affect[] the framework within which the trial proceeds, rather than simply [being] an error in the trial process itself.'" (Citations omitted.) Id. at ¶20. An error in the foundation of the proceedings, the indictment, causes error throughout the entire proceeding and undermines the reliability of a trial as a means to determine guilt. Id. Further, "Crim.R. 7(D) embodies the protections guaranteed in Section 10, Article I, of the Ohio Constitution, which provides that 'no person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a grand jury.'" State v. Roberts, Cuyahoga App. No. 89236, 2008-Ohio-1942, ¶22, citing State v. Strozier (Oct. 5, 1994), 2d Dist No. 14021.
{¶ 14} Relying on State v. Vitale (1994), 96 Ohio App.3d 695, 645 N.E.2d 1277, appellant argues that one could never know what the jury's findingsactually were because the indictment listed several periods of time alleging when appellant possessed or trafficked drugs. However, Vitale is distinguishable. In that case, the state amended the indictment to change the identity of crimes after presentation to the grand jury.
{¶ 15} In the present case, the indictment was amended, but only to reflect the separation of co-defendants. The same charges that were previously submitted to the grand jury as Counts 4, 5, and 7 were renumbered as Counts 1, 2, and 3. Appellant claims that the amounts of drugs specified varied from the original indictment or that the amounts varied within the indictments. The counts related to Moore listed an amount of drugs exceeding 5,000 grams but less than 20,0000 grams, while the counts related to appellant at all times listed an amount of drugs exceeding 20,000 grams.
{¶ 16} In Count 4, the indictment indicates that the grand jury found "that the defendant(s) unlawfully did knowingly obtain, possess, or use a controlled substance, to-wit: Marijuana, a schedule I drug, in an amount equal to or exceeding 20,000 grams." The dates listed for all three counts are "February 13, 2009 — February 15, 2009." The bill of particulars supplied by the state listed several dates ranging from February 13, 2009 through February 15, 2009, where it alleges that appellant arranged or cooperated in obtaining a shipment of marijuana greater than 20,000 grams. The bill ofparticulars and indictment alleged only one instance where appellant participated in the acquisition of over 20,000 grams of marijuana — the shipment of drugs on the semi-truck — but that his assistance in obtaining these drugs occurred over the span of three days.
{¶ 17} Appellant attacks the validity of the indictment throughout his supplemental briefs because it failed to charge complicity or aiding and abetting. However, State v. Ousley, Montgomery App. Nos. 23496 and 23506, 2010-Ohio-3116, 118....
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