State v. Black, Appellate Case No. 27888

• Court: Ohio Court of Appeals
• Writing for the Court: FROELICH, J.
• Citation: State v. Black, 2018 Ohio 4878, Appellate Case No. 27888 (Ohio App. Dec 07, 2018)
• Decision Date: 07 December 2018
• Docket Number: Appellate Case No. 27888
• Parties: STATE OF OHIO Plaintiff-Appellee v. DION BLACK Defendant-Appellant

2018 Ohio 4878

STATE OF OHIO Plaintiff-Appellee v. DION BLACK Defendant-Appellant

Appellate Case No. 27888

COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

December 7, 2018

Trial Court Case No. 2016-CR-1151/2

(Criminal Appeal from Common Pleas Court)

OPINION

MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Atty. Reg. No. 0095826, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

JAY A. ADAMS, Atty. Reg. No. 0072135, 36 North Detroit Street, Suite 102, Xenia, Ohio 45385 Attorney for Defendant-Appellant

FROELICH, J.

{¶ 1} Dion Black was convicted after a jury trial in the Montgomery County Court of Common Pleas of possession of heroin in an amount equal to or exceeding 250 grams, a first-degree felony (R.C. 2925.11(C)(6)(f)), and possession of cocaine in an amount of 10 grams or more, but less than 20 grams, a third-degree felony (R.C. 2925.11(C)(4)(c)). The trial court sentenced him to a mandatory maximum sentence of 11 years in prison for possession of heroin and to 12 months in prison for possession of cocaine, to be served concurrently.

{¶ 2} Black appeals from his conviction, claiming (1) that his conviction for possession of heroin was based on insufficient evidence and against the manifest weight of the evidence and (2) that the trial court erred in sentencing him as a major drug offender. For the following reasons, the trial court's judgment will be affirmed.

I. Factual and Procedural History

{¶ 3} The State's evidence at trial established the following facts.

{¶ 4} On October 7, 2015, United States Postal Inspector Suzanne McDonough noticed a large flat-rate box mailed from Morena Valley, California, an area that was known to her as a "drug source location." McDonough looked at the time that the package was mailed and investigated the sender's name and address, as identified on the package. The sender was James Collins at a specific address in Morena Valley; there was no James Collins associated with that address. McDonough also checked whether the name for the addressee was associated with the address to which the package was mailed. The recipient of the package was Brandi Anderson, but there was no such person associated with the address. McDonough did not know whether Brandi Anderson or James Collins was a real person.

{¶ 5} McDonough contacted the Dayton Police Department and asked to have a narcotics K-9 check the parcel. McDonough chose several similar packages, hid them in an office or hallway in the postal facility, and placed the suspect package among them. When the police K-9 passed the suspect parcel, the dog alerted on it. McDonough had the handler complete an affidavit that the K-9 had positively alerted on the parcel, and McDonough obtained a federal search warrant to open the parcel.

{¶ 6} When McDonough opened the parcel, she saw a candle and potpourri; McDonough discovered approximately 8.9 ounces of heroin inside the candle. McDonough contacted Detective Anthony Hutson of the Montgomery County Sheriff's Office R.A.N.G.E. Task Force, the regional task force for drugs and gun enforcement, to see if the task force was interested in conducting a controlled delivery of the drugs.

{¶ 7} After McDonough brought the package to Hutson's attention, R.A.N.G.E. Task Force detectives researched the address and names associated with the parcel. Detective Joshua Samples testified that he researched the delivery address using several law enforcement databases, looking at prior calls for service, people who carry that address on their driver's license or vehicle, and the like. Samples found no connection between the address and the name "Brandi Anderson." The task force also obtained an anticipatory search warrant for the residence.

{¶ 8} On October 8, 2015, McDonough met with R.A.N.G.E. Task Force officers regarding the controlled delivery and execution of the search warrant. Numerous detectives were assigned different duties, such as entry team officers, delivery surveillance officer, and perimeter officers. Later that day, with task force officers nearby, McDonough, as an undercover mail carrier, went to the address listed on the parcel to deliver the package. A man wearing black pajama bottoms (later identified as Black) answered the door, and McDonough stated that she had a parcel for Brandi Anderson. Black was on the phone, and he acknowledged her by nodding. McDonough handed Black the parcel and left the area.

{¶ 9} After the package was delivered, R.A.N.G.E. Task Force officers approached the residence to execute the search warrant on the house. When Detective Samples approached the residence, two men were on the porch, one of whom was holding the parcel. Both individuals ran. One man, Perry Thompson, came off the porch but laid down on the front walkway upon seeing other officers; the other, Black, ran around the house with the parcel.

{¶ 10} Detective Raymond Swallen, who was assisting with the execution of the warrant, was located at the rear of the house with Detective Jason Leslie. Swallen saw Black running from the right side of the house (from Swallen's perspective), carrying the parcel like a football. Swallen and Leslie ran towards Black, yelling "Stop, police." Black threw his cell phone and the parcel over the fence of an adjacent yard. The officers apprehended and handcuffed Black, patted him down for weapons, and after the house was secured, took Black around the front of the house to a police car. Swallen searched Black prior to placing him in a cruiser and located cash, a Social Security card, and what appeared to be crack cocaine in Black's pants pocket. Hutson, Swallen, and Leslie identified Black at trial.

{¶ 11} Upon executing the search warrant, Detective Hutson found paperwork, including a shipping label addressed to Black at that residence, in the living room of the house. A nightstand in a basement bedroom had a shipping label with the sender listed as "Mark Black" from that address. A utility bill with Black's information on it (but with a different address) was located in a vehicle parked in the driveway. Upon searching the house, the officers also found firearms, a digital scale, empty gel capsules (which Hutson testified was indicative of drug trafficking, mostly heroin), a blender that appeared to have been used to "cut" drugs, and a plate with a knife.

{¶ 12} During cross-examination, Detective Hutson testified that Black was subject to two unrelated traffic arrest warrants on October 8, 2015. Hutson agreed that he had seen many people run from the police because of warrants.

{¶ 13} The suspected heroin and crack cocaine were submitted to the Miami Valley Regional Crime Laboratory for analysis. Todd Yoak, a forensic chemist, testified that the substances were 16.02 grams, plus or minus 0.02 grams, of cocaine and 251.15 grams, plus or minus 0.02 grams, of heroin.

{¶ 14} In July 2016, Black was indicted for possession of heroin (equal to or exceeding 250 grams) with a major drug offender specification and for possession of cocaine (10 grams or more, but less than 20 grams). Black subsequently moved to suppress all physical evidence obtained by law enforcement and any statements he may have made to law enforcement officers. After a hearing, the trial court denied the motion.

{¶ 15} A jury trial commenced on December 12, 2017. Prior to opening statements, the State orally moved to amend the indictment to strike the major drug offender specification. The prosecutor explained, "We've discussed in chambers how it's surplus language, that the statute is essentially duplicative of that. So just for the sake of not confusing the jury, we'd ask for the indictment to be amended, thus." The trial court granted the motion without objection.

{¶ 16} During the trial, the State presented the testimony of Postal Inspector McDonough, of Detectives Hutson, Samples, Swallen, and Leslie, and of Yoak. The State also offered several exhibits, including photographs taken during the execution of the search warrant on October 8, 2015, the parcel intercepted by McDonough, the search warrant, gel caps, and the drugs. Black did not present any witnesses, but offered several exhibits that were used during the cross-examination of Hutson. Following deliberations, the jury found Black guilty of both drug offenses, including specific findings that Black possessed the drugs in the amounts alleged in the indictment.

{¶ 17} The trial court held a sentencing hearing on January 2, 2018, following a presentence investigation. After hearing Black's comments and responding to those comments, the trial court reviewed some of the factors set forth in R.C. 2929.12, including that "there is a major drug offender specification here." The court told Black that "this is a mandatory sentence, given the major drug offender specification." The court then sentenced Black to 11 years in prison for possession of heroin and to 12 months in prison for possession of cocaine, to be served concurrently. The court found Black to be indigent and waived the mandatory fine, but ordered Black to pay court costs. The trial court's judgment entry, filed two days later, was consistent with the judge's oral pronouncement.

{¶ 18} Black appeals from his conviction, raising two assignments of error.

II. Sufficiency and Manifest Weight of the Evidence

{¶ 19} In his second assignment of error, Black claims that his conviction for possession of heroin was based on insufficient evidence and was against the manifest weight of the evidence. Black does not challenge his conviction for possession of cocaine.

{¶ 20} A sufficiency of the evidence argument disputes whether the State has presented adequate evidence on each element of the offense to sustain the verdict as a matter of law. State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678...