State Of Ohio v. Lenoir, Case No. 10CAA010011
| Citation | 2010 Ohio 4910 |
| Decision Date | 05 October 2010 |
| Docket Number | Case No. 09CRI070357,Case No. 10CAA010011 |
| Parties | STATE OF OHIO Plaintiff-Appellee, v. MICHAEL D. LENOIR Defendant-Appellant. |
| Court | United States Court of Appeals (Ohio) |
For Defendant-Appellant SUSAN E. MALLOY.
{¶1} Defendant-appellant, Michael D. Lenoir, appeals his convictions on possession of cocaine a second-degree felony, in violation of R.C. 2925.11(A); and (C) (4) (d); possession of heroin a first-degree felony, in violation of R.C. 2925.11(A) and (C) (6) (e); and possession of crack cocaine a fifth-degree felony, in violation of R.C. 2925.11(A) and (C) (4) (a). The plaintiff-appellee is the State of Ohio.
{¶2} Ohio State Highway Patrol Trooper Marcus Pirrone testified that on July 4, 2009, around 7:00 a.m. he and Trooper Reggie Streicher were observing traffic on Interstate I-71, milepost 121 when he observed a black Cadillac, four-door sedan and a red Grand Cherokee Jeep approaching at a high rate of speed. Trooper Pirrone mounted his motorcycle and began pursuing the vehicles. Trooper Pirrone testified that the Cadillac eventually stopped, however the Jeep slowed down to approximately five or six miles per hour. The Jeep's driver stared at the Trooper, drove past and then "just punched it."(T. at 19). Trooper Pirrone gave a verbal warning to the driver of the Cadillac and began to pursue the red Jeep. Trooper Pirrone testified that he observed the driver of the Jeep through the windshield as the vehicle approached him and then through the passenger side window. Because the driver of the Jeep had slowed down, Trooper Pirrone was able to see the face of the driver, whom he identified as appellant.
{¶3} Trooper Pirrone observed appellant exit the highway and proceed through a red light. The appellant proceeded through a second red light and turned left onto Galena Road. Trooper Pirrone followed, but lost sight of the Jeep. The trooper decided to double back. He was then able to observe the Jeep parked in a driveway. Trooper Pirrone observed that a yard ornament had been knocked over in the driveway. Further, the Jeep's brake lights were on then went off. Appellant exited the Jeep and began to run. Trooper Pirrone observed a "black sweatshirt or possibly a black bag" in appellant's hand at the time he exited the Jeep. Trooper Pirrone pursued the appellant who dropped the black object as he continued to flee the officer. During this pursuit, the trooper called for back-up officers. Trooper Pirrone decided to return to the Jeep, in case appellant decided to double back, return to the Jeep and leave the area. Pictures from the scene show a black object on the patio where Trooper Pirrone said he saw appellant drop a black object.
{¶4} Additional troopers arrived to assist and stayed at the scene. No one touched the sweatshirt on the ground until Sergeant Steven Click of the Ohio State Highway Patrol verified the sweatshirt did not belong to the homeowner. There were no civilians on the property when the troopers initially arrived. Ms. Norman, the homeowner, did not come out of the house until Sergeant Click knocked on her door.
{¶5} Sergeant Click retrieved the black sweatshirt from the area where Trooper Pirrone indicated that appellant had dropped a black object. Sergeant Click picked up the sweatshirt after ascertaining that it did not belong to the homeowner and a baggie of a material fell out onto the patio. Sergeant Click believed the material was an illegal drug and secured the baggie in his motorcycle. The baggie of material was analyzed and found to weigh 100.07 grams and was a mixture of heroin and cocaine.
{¶6} The homeowner, Sharon Norman, testified that the black sweatshirt was not hers, that she did not own a black sweatshirt and that there was no blacksweatshirt on her patio when she went to bed the evening before at approximately 12:00 am, 1:00 am.
{¶7} When the back-up officers arrived, Trooper Pirrone returned to the foot pursuit. During the pursuit, one of the back-up officers contacted Trooper Pirrone to advise that the officers discovered crack cocaine inside the Jeep and a bag of what appeared to be drugs inside the black sweatshirt Trooper Pirrone saw appellant drop.
{¶8} Appellant ran into a wooden area and attempted to hide from the officers underneath some brush. The canine officer located appellant. After refusing to come out, the officer released his dog. Appellant subsequently surrendered. When the officers located appellant, appellant, admitted that the crack cocaine found inside the Jeep belonged to him. He stated, "The small crack in the car, that one is mine." (T. at 33).
{¶9} The jury found appellant guilty of the following three offenses: (1) seconddegree felony cocaine possession, in violation of R.C. 2925.11(A) and (C)(4)(d); (2) first-degree felony heroin possession, in violation of R.C. 2925.11(A) and (C)(6)(e); and (3) fifth-degree felony crack cocaine possession, in violation of R.C. 2925.11(A) and
(C)(4)(a).
{¶10} At the sentencing hearing, the state elected to proceed to sentencing on the first-degree felony heroin possession count. The court then sentenced appellant to a mandatory five-year prison term for this offense and to an eight-month prison term for the crack cocaine possession offense. The court ordered appellant to serve the prison terms consecutively. In accordance with R.C. 2941.25, the trial court did not impose a sentence for the second-degree felony cocaine possession offense.
{¶11} Appellant timely appeals his conviction and sentence raising five assignments of error:
{¶12} "I. THE TRIAL COURT ERRED BY ADMITTING EVIDENCE REGARDING THE SWEATSHIRT AND THE COCAINE-HEROIN MIXTURE WHEN THE STATE FAILED TO ESTABLISH AN ADEQUATE CHAIN OF CUSTODY.
{¶13} "II. THE TRIAL COURT ERRED BY OVERRULING APPELLANT'S MOTION FOR JUDGMENT OF ACQUITTAL REGARDING THE SECOND-DEGREE FELONY COCAINE POSSESSION OFFENSE AND FIRST-DEGREE FELONY HEROIN POSSESSION OFFENSE WHEN THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE THAT APPELLANT KNOWINGLY POSSESSED AN AMOUNT OF COCAINE EQUAL TO OR EXCEEDING 100 GRAMS AND AN AMOUNT OF HEROIN EQUAL TO OR EXCEEDING 50 GRAMS.
{¶14} "III. THE JURY'S VERDICTS CONVICTING APPELLANT OF SECOND-DEGREE FELONY COCAINE POSSESSION AND FIRST-DEGREE FELONY HEROIN POSSESSION ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE BECAUSE THE STATE DID NOT PRESENT ANY COMPETENT, CREDIBLE EVIDENCE THAT APPELLANT KNOWINGLY POSSESSED MORE THAN 100 GRAMS OF COCAINE AND MORE THAN 50 GRAMS OF HEROIN.
{¶15} "IV. THE TRIAL COURT ERRED BY IMPOSING CONSECUTIVE TERMS OF IMPRISONMENT WITHOUT MAKING ANY FINDINGS TO SUPPORT CONSECUTIVE SENTENCES AND WITHOUT PROVIDING ANY REASONING TO SUPPORT ITS DECISION TO IMPOSE CONSECUTIVE SENTENCES.
{¶16}
{¶17} In his first assignment of error, appellant argues that the state failed to maintain or establish a chain of custody for the contraband forming the basis of the charge. We disagree.
{¶18} State v. Ritchey (1992), 64 Ohio St.3d 353, 360, 595 N.E.2d 915, 923 overruled on other grounds, State v. McGuire (1997), 80 Ohio St.3d 390, 402-404, 686 N.E.2d 1112. Moreover, a chain of custody can be established by direct testimony or by inference. State v. Conley (1971), 32 Ohio App.2d 54, 60, 288 N.E.2d 296, 300. The issue of whether there exists a break in the chain of custody is a determination left up to the Trier of fact. Columbus v. Marks (1963), 118 Ohio App. 359, 194 N.E.2d 791. Any breaks in the chain of custody go to the weight afforded to the evidence, not to its admissibility. State v. Blevins (1987), 36 Ohio App.3d 147, 521 N.E.2d 1105.
{¶19} The state, therefore, is not required State v. Moore (1973), 47 Ohio App.2d 181, 183, 353 N.E.2d 866. See, also, State v. Thompson (1993), 87 Ohio App. 3d 570, 582, 622 N.E.2d 735; State v. Brown (1995), 107 Ohio App.3d 194, 200, 668 N.E.2d 514. Furthermore, even if the chain of custody is broken, that fact alone will not render the evidence inadmissible. State v. Walton, Cuyahoga App. No. 88358, 2009-Ohio-1234 at ¶ 6.
{¶20} The cocaine-heroin mixture found in the sweatshirt dropped on the patio by the appellant is the same cocaine heroin mixture that was analyzed by Brandon Werry, Director of the Ohio State Highway Patrol Crime Laboratory in Columbus, Ohio and that was admitted into evidence as Exhibit 6. An authenticated chain of custody was submitted to the Jury, Exhibit 13, and the cocaine-heroin mixture and the crack cocaine submitted as Exhibits 6 and 7 were both identified as the items found by Troopers on July 4, 2009. There is no issue as to the chain of custody or authentication for the cocaine-heroin mixture or the crack cocaine after the officers at the scene discovered it.
{¶21} Appellant argues, "The state failed to carry its burden to show that the sweatshirt was not tampered with, altered, or substituted with another during the time it was left...
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State v. Lenoir
...2010 Ohio 4910Statev.Lenoir.2010-2010Supreme Court of OhioFebruary 16, 2011APPEALS NOT ACCEPTED FOR REVIEWDelaware App. No. 10CAA010011, 2010-Ohio-4910.Lanzinger and McGee Brown, JJ., ... ...