State v. Crocker

• Decision Date: 16 June 2015
• Docket Number: No. 14CA3640.,14CA3640.
• Citation: 38 N.E.3d 369
• Parties: STATE of Ohio, Plaintiff–Appellee, v. James D. CROCKER, Defendant–Appellant.
• Court: Ohio Court of Appeals

38 N.E.3d 369

STATE of Ohio, Plaintiff–Appellee

v.James D. CROCKER, Defendant–Appellant.

No. 14CA3640.

Court of Appeals of Ohio, Fourth District, Scioto County.

June 16, 2015.

Matthew F. Loesch, Portsmouth, OH, for appellant.

Mark E. Kuhn, Scioto County Prosecuting Attorney, Portsmouth, OH, for appellee.

Opinion

HARSHA, J.

{¶ 1} Following a bench trial the Scioto County Court of Common Pleas convicted James Crocker of trafficking and possession of heroin, trafficking and possession of cocaine, and tampering with evidence. Crocker claims that his convictions are against the manifest weight of the evidence and are not supported by sufficient evidence. However, the trial court reasonably concluded that Crocker possessed the drugs because Crocker knew about the heroin and cocaine and he exercised dominion and control over the drugs by knowingly transporting them in the rental car. We overrule this part of his first assignment of error.

{¶ 2} Nevertheless, based on the Supreme Court's recent decision in State v. Straley, 139 Ohio St.3d 339, 2014-Ohio-2139, 11 N.E.3d 1175, we agree the record does not contain sufficient evidence to support Crocker's conviction for tampering with evidence. At the time his passenger concealed the drugs in her vagina, there was no proceeding or investigation that they either knew was in progress or was likely to occur. We sustain this portion of Crocker's first assignment of error.

{¶ 3} Next Crocker challenges the admissibility of his jailhouse telephone calls because a deputy sheriff who identified his voice obtained a postindictment voice exemplar from him without his counsel being present. We reject Crocker's contention because a state trooper with personal knowledge authenticated Crocker's voice on the recorded phone calls so that any error was harmless beyond a reasonable doubt.

{¶ 4} Crocker also asserts that the trial court should have excluded the report of a forensic computer specialist. Because the text messages contained in the report were not hearsay and the specialist was sufficiently qualified as an expert to render an opinion, we reject this assignment of error.

{¶ 5} Next Crocker claims that the trial court erred when it overruled his speedy-trial motion to dismiss. Crocker did not establish that the trial court violated his speedy-trial rights. He agreed to toll the time until 30 days after the trial court's ruling on his motion to suppress. And the trial court granted a reasonable continuance of the suppression hearing based on the unavailability of the prosecutor. Because of these tolling events, his claim is meritless.

{¶ 6} Finally, Crocker contends that the trial court “abused its discretion” by denying his motion to suppress the evidence derived from the traffic stop. Because the stop was based on his violation of traffic law, the stop was valid. And the scope and duration of the stop was reasonable given the relatively brief time involved and Crocker's inability to properly identify his passenger. The passenger's subsequent admission that Crocker had given her contraband, which she had concealed on her body, justified the resulting expansion of the scope and duration of the stop.

{¶ 7} In sum, we reverse Crocker's conviction for tampering with evidence and remand the cause to the trial court to vacate that conviction. We affirm the remaining convictions.

I. FACTS

{¶ 8} The Scioto County Grand Jury returned an indictment charging Crocker with one count of trafficking in heroin, one count of possession of heroin, one count of trafficking in cocaine, one count of possession of cocaine, and one count of tampering with evidence. After receiving appointed counsel and entering a plea of not guilty, Crocker filed motions to suppress evidence and to dismiss the case based on the speedy-trial provisions of R.C. 2945.71. The trial court conducted hearings on the motions and denied them. Crocker then waived his right to a jury trial and the trial court held a bench trial, which produced the following evidence.

{¶ 9} While on routine patrol, Ohio State Highway Patrol Trooper Michael Erwin noticed a blue 2012 Ford Fusion that was traveling southbound on U.S. Route 23. He observed that vehicle committing a marked-lanes violation by travelling approximately six inches over the white fog line on the right side of the road for about sixty yards. He approached the vehicle and asked that the two occupants provide him with identification. From the information provided, Trooper Erwin identified Crocker as the driver and Dicey Deselle¹ as the passenger.

{¶ 10} After the trooper gathered the paperwork, Crocker agreed to exit the vehicle. The trooper patted him down to make sure he did not have any weapons, and placed him in the cruiser while the trooper went over the information. Crocker informed the trooper that his fiancée had rented the car. Crocker also told the trooper that the passenger was his cousin, India Ruffin, and that they were taking a trip to North Carolina. Because Crocker's statements about the passenger's identity did not correspond to the identification provided by the passenger that she was Dicey Deselle, Trooper Erwin left his cruiser. He approached Deselle, who confirmed that she was Dicey Deselle, and after additional conversation, the trooper advised her that her story did not match Crocker's story, so he gave her Miranda warnings. At that point Deselle agreed to go back to the patrol post to remove an item from her vaginal cavity² . Based on this information the trooper placed Crocker under arrest and seized two cellphones from the driver's seat and $1,080 in cash from Crocker's person. Law enforcement officers also recovered two additional identification cards from Deselle's purse for an India Ruffin, although Ruffin's picture did not match Deselle's face.

{¶ 11} At the patrol post Trooper Carla Taulbee observed Deselle, who indicated she was scared of Crocker, as she removed an object covered in black tape from her vagina. Trooper Erwin unwrapped the object, which included three separate baggies containing drugs that had been prepared for transportation. The troopers sent the baggies to the Ohio State Highway Patrol Crime Laboratory, which tested the materials inside the baggies and determined that they contained 55.49 grams of cocaine and 49.61 grams of heroin.

{¶ 12} Christopher McGee, a forensic computer specialist with the Ohio State Highway Patrol, extracted data from the cellphones seized from Crocker's driver's seat in the rental car. One of the cellphones included an e-mail account associated with Crocker—jaycrockjc@gmail.com. Three days before Crocker's arrest, one of his cellphones had been used to search for Hertz Rental Car locations and discounts. On the day of his arrest, one of Crocker's cellphones included the following text conversation:

Crocker's phone: “How he know Im comin”

One Luv: “We stil on rite im tryin 2 make sum paper I got peepz waitn”

One Luv: “Gary heard me talkin 2 my peepz”

Crocker's phone: “And I got my own shit now”

One Luv: “Cool but we still good”

Crocker's phone: “They owe”

One Luv: “How much they owe?”

Crocker's phone: “1800 dat gary stole”

{¶ 13} In his report McGee concluded that both cellphones “appear to have evidence of the sale/transportation of illegal narcotics.” Crocker objected to McGee's testimony and report on several grounds, including that they contained hearsay and inadmissible opinion testimony, but the trial court overruled his objections in part. McGee testified that although he had never been a lead investigator in a narcotics investigation or a narcotics officer, he had done “upwards of fifty” examinations of cellphones in drug cases. His involvement in narcotics investigations has been through his analysis of cellphones, personal computers, and tablets, as well as training about narcotics while at his previous job as a Columbus code enforcement officer.

{¶ 14} While incarcerated at the Scioto County Jail, Crocker made calls on the jail's telephone system, which recorded the calls with the knowledge of both parties to the conversation. Captain Hall of the Scioto County Sheriff's Office testified that he went to the jail the week before trial and told Crocker that he would be testifying about the telephone system and that he wanted to hear Crocker's voice so that he could verify that Crocker was the person talking on the recordings. At trial Crocker objected to the admission of three recorded tapes of his telephone calls because his counsel was not notified and present when Captain Hall approached Crocker to identify that it was his voice on the recorded calls. The trial court found Captain Hall's conduct surprised and concerned it, but overruled the objection because Hall elicited no incriminating information from Crocker. The trial court further noted that third-party statements during the recorded conversations would not be used to prove the truth of the statements. Trooper Erwin, who had talked with Crocker during the stop and arrest, previously testified that he had listened to Crocker's jail-system telephone recordings and he recognized Crocker's voice as the person who placed those calls from the Scioto County Jail.

{¶ 15} The court admitted three of the recorded jail-system phone calls into evidence. In the first phone call Crocker told a woman that he was with some girl named India Ruffin, that his cousin had rented the car, that he was the driver of the car, and that he did not know the girl, but “My homeboy, Bode, know her. He put me up on her.” Crocker also was concerned about the trooper taking his cellphones.

{¶ 16} In the second phone call Crocker told the person that “Brick” should know, by saying “But tell him—I need you to tell him—that Bode set me up with that girl, and she told on me.” When hearing that Brick was mad at him, Crocker responded, “How? I did everything this nigger told me to do. I did what the nigger told me to do, and then, if I would have did what I wanted to do, I would have been...