State v. Colston
| Decision Date | 27 July 2020 |
| Docket Number | Case No. CT2019-0076 |
| Citation | 2020 Ohio 3879 |
| Parties | STATE OF OHIO Plaintiff-Appellee v. ANTHONY R. COLSTON, JR. Defendant-Appellant |
| Court | Ohio Court of Appeals |
JUDGES: Hon. W. Scott Gwin, P.J. Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin,, J.
For Plaintiff-Appellee
D. MICHAEL HADDOX
By: TAYLOR BENNINGTON
Assistant Prosecutor
Muskingum County
27 North Fifth St., Box 189
Zanesville, OH 43701
For Defendant-Appellant
JAMES A. ANZELMO
446 Howland Drive
Gahanna, OH 43230
{¶1} Defendant-appellant Anthony R. Colston, Jr., aka Dough ["Colston] appeals his convictions and sentences after a jury trial in the Muskingum County Court of Common Pleas.
{¶2} The Muskingum County Sheriff's Department used a confidential informant to set up controlled drug deals on September 6 and 15, 2016.
{¶3} Detective Matt Wilhite from the Muskingum County Sheriff's Office and the Central Ohio Drug Enforcement Task Force testified that his confidential informant ["CI"] spoke to him about meeting an individual named Mario Martinez Claytor, a.k.a. "Casino" while the pair were incarcerated in the Muskingum County Jail. 1T. at 1741. Detective Wilhite had knowledge of Claytor and had been investigating him since 2005. Detective Wilhite asked the CI to make contact with Claytor and arrange to make some controlled drug buys from him. 1T. at 174.
{¶4} The CI began by sending a "friend" request to Claytor's Facebook page. Within minutes, Claytor responded with a telephone number and a request for the CI to contact him. 1T. at 175. While at the sheriff's office, Detective Wilhite monitored and recorded the telephone call between the CI and Claytor. 1T. at 176. (State's Exhibit B2). Detective Wilhite verified that Claytor had been in the Muskingum County Jail at the time the CI was in the jail. 1T. at 178. He further verified the telephone number and address of Claytor. 1T. at 179.
{¶5} On September 9, 2016, the CI informed Detective Wilhite that he, the CI, could purchase one ounce of cocaine from Claytor for $1,225. Detective Wilhite and the CI met to set up a controlled buy from Claytor. 1T. at 179. The CI was given the buy money and an undercover police vehicle. The CI made a telephone call to Claytor that the detective monitored and recorded. 1T. at 180. (State's Exhibit C1). The CI was equipped with audio and visual recording devices and given a camera. 1T. at 181. Undercover detectives from the Muskingum County Sheriff's Office followed the CI to his home which was the agreed meeting place for the transaction. The CI remained on the porch in view of the undercover officers.
{¶6} The CI received a telephone call and gave the caller directions to the CI's home. 1T. at 183. A short time later, a white Chrysler 300 with Pennsylvania license plates pulled up to the house. The CI left the porch and got inside the backseat of the car. The entire time, detectives were listening and recording the events in real time. (State's Exhibit D17). The CI initially tells the driver of the car that he, the CI, forgot his scales. 1T. at 188. The CI can be seen returning to the car with scales in hand. Inside the car was Colston. Colston handed the CI cocaine and the CI gave Colson $1,225. 1T. at 189.
{¶7} Detective Wilhite produced still pictures made from the video of the transaction. Among the pictures are pictures of Colston's face, and the tattoo on his right arm. State's Exhibit D3, D4, D6, D7, D8, D9, D10, and D11. State's Exhibit D12 is a picture of a hand with what appears to be a bag of cocaine. 1T. at 194-195. State's Exhibit D13 is a picture of a hand, a bag of cocaine, and money. State's Exhibits D14, D15 and D16 show Colston's face. 1T. at 195. Approximately 27 grams of cocaine was recovered from the CI from the transaction that took place on September 6, 2016. 1T. at 186. State's Exhibit E1.
{¶8} Detective Wilhite was able to find booking photographs and tattoo records from law enforcement databases that matched those he saw in the video. The records identified Colston as the driver of the white Chrysler 300. Upon arriving at the residence listed for Colston from the dataset records, Detective Wilhite found the white Chrysler 300 parked in front of the residence. 1T. at 196.
{¶9} A second controlled buy took place on September 15, 2016. 1T. at 198. The CI informed Detective Wilhite that the CI could purchase four ounces of cocaine from Mario Claytor. The CI and Detective Wilhite met at a prearranged meeting pace. The CI was given $4,500 in buy money and outfitted with visual and audio recording devices. The buy was again to take place at the CI's residence. Surveillance was set up around the residence by detectives from the Muskingum County Sheriff's Office. After waiting for over one hour the CI received a telephone call from Claytor discussing the terms of the deal. 1T. at 204. Approximately ten minutes later, Colston arrived driving a silver Toyota. 1T. at 205. The CI got into the front passenger seat. Claytor telephoned the CI while the CI was inside the car. Apparently, there was a discrepancy in the amount of money the CI was to pay for the cocaine. This was resolved by the CI agreeing to pay an additional $300 at a later time. 1T. at 205. Colston gave the CI four ounces of cocaine in exchange for receiving $4,500. 1T. at 205. Detective Wilhite was able to pull up next to the silver Toyota while the cars were stopped at a traffic light. Detective Wilhite observed Colston driving the silver Toyota. 1T. at 206. No one else was inside the Toyota.
{¶10} Colston is seen in the video handing cocaine to the CI and the CI is seen on the video giving Colston $4,500. 1T. at 207. State's Exhibit G1. Stills taken from the video of Colston's face and tattoos were received into evidence. State's Exhibit's H8 - H13. 1T. at 211- 213.
{¶11} At trial, upon the request of the prosecution, and over the objection of Colston's trial counsel, the trial judge had Colston show the jury a tattoo he had on his arm and hands. 2T. at 241-242; 267.
{¶12} In January 2017 multiple search and arrest warrants were issued. 1T. at 219. Detective Wilhite testified that the identity of the CI was determined by those involved by the end of that day. 1T. at 219-220. Colston was arrested in the state of Alabama nearly one year later. He was extradited to Ohio.
{¶13} Colston was indicted with one count of conspiracy to trafficking in drugs, a first degree felony, in violation of R.C. 2923.03, and one count of engaging in a pattern of corrupt activity, a first degree felony, in violation of R.C. 2923.32. The charges contained major drug offender specifications under R.C. 2941.141.
{¶14} Before jury deliberations, the trial court instructed the jury that it heard testimony that Colston fled the state and that this conduct can evince a consciousness of guilt. 2T. at 397. Trial counsel objected to the instruction arguing there was no testimony that Colston left the state under an awareness that he was being charged with a crime. 2T. at 370.
{¶15} The jury found Colston guilty of conspiracy to drug trafficking as well as engaging in a pattern of corrupt activity. The jury also found that the offenses pertained to trafficking cocaine in an amount greater than 100 grams. The prosecution dismissed the major drug offender specification attached to the trafficking charge, but kept the specification attached to the engaging in a pattern of corrupt activity charge. The issue of whether Colston was a major drug offender was for the trial court to make, and it found that Colston was a major drug offender. The trial court therefore sentenced Colston to a mandatory term of seven years on the conspiracy to trafficking count and a mandatory term of eleven years on the engaging in a pattern of corrupt activity count. The court ordered the sentences to be served consecutively for an aggregate prison term of 18 years.
{¶16} Colston raises eight Assignments of Error,
{¶17} "I. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING COLSTON'S MOTION FOR A CONTINUANCE, IN VIOLATION OF COLSTON'S DUE PROCESS RIGHTS PURSUANT TO THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
{¶18} "II. THE TRIAL COURT ERRED BY REQUIRING COLSTON TO DISPLAY HIS TATTOO TO THE JURY, IN VIOLATION OF HIS RIGHT AGAINST SELF-INCRIMINATION GUARANTEED BY THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
{¶19} "III. THE TRIAL COURT PLAINLY ERRED BY FAILING TO INSTRUCT THE JURY THAT IT MUST UNANIMOUSLY AGREE ON THE SAME SPECIFIC INCIDENT OF COMPLICITY [SIC.]2 TO DRUG TRAFFICKING AND ENGAGING IN A
PATTERN OF CORRUPT ACTIVITY, EACH ALLEGED IN SINGLE COUNTS IN THE INDICTMENT AGAINST COLSTON, IN VIOLATION OF HIS RIGHTS TO DUE PROCESS OF LAW, A FAIR TRIAL, JURY UNANIMITY, AND THE DOUBLE JEOPARDY PROTECTIONS PURSUANT TO THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION.
{¶20} "IV. THE TRIAL COURT ERRED BY INSTRUCTING THE JURY THAT IT COULD CONSIDER THAT COLSTON FLED THE STATE AS EVIDENCE OF A CONSCIOUSNESS OF GUILT.
{¶21} "V. COLSTON'S CONVICTIONS ARE BASED ON INSUFFICIENT EVIDENCE, IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 10 & 16, ARTICLE I OF THE OHIO CONSTITUTION.
{¶22} "VI. COLSTON'S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 10 & 16, ARTICLE I OF THE OHIO CONSTITUTION.
{¶23} "VII. THE TRIAL COURT LACKED AUTHORITY TO FIND COLSTON A MAJOR DRUG OFFENDER, PURSUANT TO THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
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