State v. Brown
| Decision Date | 31 October 1995 |
| Docket Number | 1-95-27,Nos. 1-95-26,s. 1-95-26 |
| Parties | The STATE of Ohio, Appellee, v. BROWN, Appellant. (Two Cases.) |
| Court | Ohio Court of Appeals |
David E. Bowers, Allen County Prosecuting Attorney, and Jana E. Emerick, Assistant Prosecuting Attorney, Lima, for appellee.
Craig M. Linnon, Lima, for appellant.
Defendant-appellant, Calipe Brown, appeals from the judgment entries of conviction and sentencing in the Allen County Court of Common Pleas.
On December 16, 1994, the grand jury indicted appellant on four counts: count one, selling cocaine in violation of R.C. 2925.03(A)(1); counts two and three, selling cocaine in an amount equal to or exceeding the bulk amount in violation of R.C. 2925.03(A)(5); and count four, possessing cocaine in an amount equal to or exceeding the bulk amount in violation of R.C. 2925.03(A)(6). Counts three and four contained firearm specifications pursuant to R.C. 2941.141(A). In accordance with R.C. 2925.42, count four also contained a specification subjecting appellant's property, namely $5,871, to criminal forfeiture.
A jury trial was scheduled for January 31, 1995. Appellant failed to appear and the trial court issued a bench warrant for his arrest on the same day. On March 16, 1995, appellant was indicted for failure to appear in violation of R.C. 2937.29 and possessing cocaine in violation of R.C. 2925.11(A). Thereafter, appellant waived his right to a jury trial and the two cases, representing the first and second indictments, were consolidated for trial. A trial was held on April 4 and 5, 1995. At trial, appellant moved for acquittal on counts one through four, represented by the initial indictment. The motion was overruled except for the firearm specification set forth in count three, which was dismissed for lack of evidence. The trial court found appellant guilty on all six counts, including the firearm specification and criminal forfeiture in count four. The trial court's judgment entries of conviction and sentencing were filed on April 6, 1995. Subsequently, appellant moved for consolidation of these cases for this appeal. This court granted the motion on June 14, 1995.
In his first assignment of error, appellant specifically points to the informant's testimony and maintains that it was error to base his convictions on such evidence.
Appellant's contentions regarding each count will be addressed accordingly; however, we note that appellant has raised separate assignments of error with regard to the admission of the drug exhibits pertinent to counts one and two and the firearm specification and bulk amount in count four. Briefly, we find no error in the trial court's determination concerning those issues, but we will discuss those matters infra in appellant's second, third, and fourth assignments of error.
As set forth in Crim.R. 29(A), a trial court shall grant a defendant's motion for acquittal "if the evidence is insufficient to sustain a conviction." Nonetheless, a trial court "shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt." State v. Bridgeman (1978), 55 Ohio St.2d 261, 9 O.O.3d 401, 381 N.E.2d 184, syllabus.
In contemplating such a motion, the trial court must view the evidence in a manner "most favorable" to the state. State v. Wolfe (1988), 51 Ohio App.3d 215, 216, 555 N.E.2d 689, 691.
R.C. 2925.03 provides:
Furthermore, R.C. 2925.01(E)(1) defines bulk amount of a controlled substance as "[a]n amount equal to or exceeding ten grams or twenty-five unit doses of a compound, mixture, preparation, or substance that is or contains any amount of * * * cocaine."
Initially, we note that counts one, two, and three were the result of controlled buys, which involve the informant being searched prior to and after the buy, an electronic, voice transmitting, surveillance device being installed on the informant, and visual surveillance of the informant before and after the purchase.
In count one, appellant was indicted for knowingly selling cocaine on or about September 15, 1994 in violation of R.C. 2925.03(A)(1). The record demonstrates that the informant went to appellant's house, laid money on the table, and purchased the cocaine. Appellant gave the informant change from the $200 the informant had placed on the table. The informant further testified that the price was previously set by appellant and another individual. Investigators testified as to the events which occurred on September 15, including surveillance of the informant entering and exiting appellant's home, retrieving the drugs from the informant, and marking and identifying the drugs. The tape from the electronic surveillance was apparently muffled in parts; however, the informant testified that he recognized both his own voice and that of appellant. Additionally, appellant identified his own voice. Finally, the chemist identified the material as cocaine, a controlled substance.
Count two of the indictment charged appellant with selling cocaine in violation of R.C. 2925.03(A)(5). The informant testified that he found appellant at another residence and walked with him and other individuals to appellant's home. Although a tape regarding the conversation which took place before arrival at appellant's home can only be understood in part, according to an investigator, it included conversation regarding "a quarter." 2 At appellant's home, the informant produced the money, and appellant retrieved a powder substance. Appellant then "cooked it up." Thereafter, the informant placed it in a bag and left the residence. Again, investigators testified to the procedure regarding the informant's purchase and observation of the informant prior to and after the buy. The chemist again testified to the identification and weight of the cocaine.
As to count three, appellant was again indicted for selling cocaine on October 27, 1994 in an amount equal to or exceeding the bulk amount but in an amount less than three times that amount. The informant stated that he went to appellant's home. Both men went into the kitchen, and then appellant went to the basement and returned with drugs which were in block form. The informant gave appellant money and appellant broke pieces off the block and placed them on a scale. The informant placed them in a bag and left the home. Testimony also included investigators' observation of the appellant before and after the buy as well as the procedures of retrieving and identifying the drugs. The chemist's testing indicated that the substance was cocaine with a weight of 10.3 grams.
Count four was the result of an executed search warrant, at appellant's residence, which followed the third buy. Appellant was charged with possession of cocaine in amount equal to or exceeding the bulk amount. The record shows that cocaine and a pocket scale were found in the kitchen drawer. Crack was also found inside a purse in the bedroom closet after appellant's girlfriend told police that appellant sometimes kept drugs in that location. Some of the money found in the home matched that which the informant earlier used to purchase the cocaine. There was also evidence presented identifying the home and bedroom as appellant's. Lastly, the chemist identified the substances found as cocaine weighing a total of 33.9 grams.
Based on this, as well as the rest of the record, we cannot find that the trial court erred in denying appellant's motion for acquittal regarding counts one, two, three, or four. Appellant's first assignment of error, therefore, is overruled.
Appellant maintains that the trial court erred in admitting into evidence state's exhibits one and five, in reference to count one and two, respectively. Specifically, appellant asserts that the state failed to show a chain of custody in order to authenticate or identify the two exhibits. In addition, appellant contends that the informant failed to authenticate or identify the exhibits.
Evid.R. 901 provides, in pertinent part:
Chain of custody is a part of the authentication and identification mandate set forth in Evid.R. 901, and the state has the burden of establishing the chain of custody of a specific piece of evidence. State v. Barzacchini (1994), 96 Ohio App.3d 440, 457-458, 645 N.E.2d 137, 148. The state's burden, however, is not absolute since "[t]he state need only establish that it is reasonably certain that substitution, alteration or tampering did not occur." State v. Blevins (1987), 36 Ohio App.3d 147, 150, 521 N.E.2d 1105, 1109. Thus,...
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