State v. Davis
| Decision Date | 29 October 2018 |
| Docket Number | NO. 1-17-44, NO. 1-17-45,1-17-44 |
| Citation | 2018 Ohio 4368,121 N.E.3d 864 |
| Parties | STATE of Ohio, Plaintiff-Appellee, v. Raylon A. DAVIS, Defendant-Appellant. State of Ohio, Plaintiff-Appellee, v. Raylon A. Davis, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Michael A. Partlow, for Appellant
Jana E. Emerick, Lima, for Appellee
{¶ 1} Defendant-Appellant, Raylon A. Davis ("Appellant") appeals his convictions from the Allen County Common Pleas Court for one count of possession of cocaine and one count of possession of heroin in case number CR 2014 0118; and one count of possession of cocaine, one count of possession of heroin, one count of possession of marijuana, one count of illegal cultivation of marijuana and one count of having weapons while under disability in case number CR 2015 0361. On appeal, Appellant asserts, in each case, that: 1) his convictions were not supported by sufficient evidence; 2) his convictions were against the manifest weight of the evidence; 3) he received ineffective assistance of counsel; 4) the trial court erred in denying his motion to dismiss; 5) the trial court erred by permitting appellee to present the testimony of an expert witness who had not provided the defense with a report; 6) the trial court erred by consolidating his two cases for trials; and 7), 8) the trial court erred by denying Appellant's motions to suppress evidence in each case. For the reasons that follow, we affirm the judgments of the trial court.
{¶ 2} On March 14, 2014, (then) Lima Police Department Patrolman Trent Kunkleman ("Kunkleman") was on third shift patrol in the city of Lima, Ohio. (Doc. No. 146). Around 3:20 a.m., Kunkleman responded to a police dispatch to a downtown parking lot in Lima in regards to a suspicious silver vehicle. (Id. ). Upon arriving at the parking lot, Kunkleman located a grey Hyundai. (Id. ). Kunkleman testified that the Hyundai was the only vehicle in the parking lot, so he shined his spotlight into the vehicle, identifying the Appellant as its sole occupant. (Id. ).
{¶ 3} A second Lima police officer, Sergeant Hillard ("Hillard"), arrived at the parking lot shortly after Kunkleman. (Id. ). Hillard testified that he received a police dispatch that a suspicious vehicle's car alarm was going off1 in the Lima parking lot in question. (Id. ).
{¶ 4} After Hillard arrived, Kunkleman walked up to the Appellant's vehicle in an attempt to engage Appellant in conversation, but Appellant did not respond. (Id. ). Instead, Appellant exited his vehicle, turned his back to Kunkleman, and then leaned back into the vehicle. (Id. ). Kunkleman testified that he was unable to see Appellant's hands, but was able to smell an overwhelming odor of raw marijuana. (Id. ). At this point, Kunkleman became alarmed that Appellant might be reaching into his vehicle for a weapon, so he pulled Appellant away from the car. (Id. ). Officers Kunkleman and Hillard testified that they saw the Appellant placing his hand down into his pants pocket at this point. (Id. ). Two additional law enforcement officers, who had also arrived on the scene, then grabbed Appellant and patted him down for officer safety. (Id. ). During the pat down, officers testified that there was a strong odor of marijuana coming from Appellant. (Id. ). Officers testified that they felt a "baggie" in Appellant's left pocket. (Id. ). Officers removed the baggie, which contained drugs. (Id. ). Appellant was then arrested. (Id. ).
{¶ 5} After Appellant's arrest, Kunkleman returned to the vehicle to investigate the odor of marijuana coming from it. (Id. ). Hillard, who was also at the vehicle at this time, searched the vehicle, and found a paper sack under the driver's seat that contained a large amount of cocaine. (Id. ). In addition to the cocaine, officers located heroin, marijuana, ecstasy pills, a digital scale, and a ledger in the vehicle. (Id. ).
{¶ 6} On May 15, 2014, the Allen County Grand Jury indicted Appellant on three (3) counts, including: Count One, possession of drugs (cocaine) in violation of R.C. 2925.11(A) & (C)(4)(e), a first degree felony; Count Two, possession of drugs (heroin) in violation of R.C. 2925.11(A) & (C)(6)(b), a fourth degree felony; and Count Three, aggravated possession of drugs (ecstasy) in violation of R.C. 2925.11(A) & (C)(1)(a), a fifth degree felony. (Doc. No. 3).
{¶ 7} Ultimately, Appellant was arraigned in the Allen County Common Pleas Court on January 23, 2015.2 (Doc. No. 13). Appellant's recognizance bond was set at $100,000 cash or surety, which Appellant posted. (Doc. No. 11). However, on October 1, 2015, the trial court ordered that Appellant's bond be forfeited because he failed to appear for a pre-trial conference. (Doc. No. 32). A bench warrant for Appellant's arrest was then issued by the trial court. (Id. ).
{¶ 8} On September 17, 2015, Appellant was indicted on new charges in Allen County.3
{¶ 9} On February 19, 2016, Appellant was apprehended by the US Marshall's Service in Detroit, Michigan. (Doc. No. 34). After returning to Allen County, the trial court ordered that the Appellant be held in the Allen County Jail, without bond, until further order of the Court. (Doc. No. 38).
Appellant's jury trial was then scheduled for April 19, 2016. (Doc. No. 69).
{¶ 10} On April 12, 2016, Appellant filed a motion to suppress in the trial court. (Doc. No. 87). On May 5, 2016, Appellant executed a waiver of his right to speedy trial. (Doc. No. 115).
{¶ 11} A hearing on the motion to suppress occurred on June 30, 2016. (Doc. No. 138). And, on July 21, 2016, the trial court issued its ruling overruling Appellant's motion to suppress. (Doc. No. 146).
{¶ 12} On July 7, 2016, the State filed a motion to consolidate Appellant's cases. (Doc. No. 137). Appellant filed his oppositions to the State's motion to consolidate on July 15, 2016 and on August 22, 2016. (Doc. Nos. 139; 159). On August 26, 2016 the trial court consolidated the cases. (Doc. No. 163).
{¶ 13} On August 3, 2016, Appellant signed and filed a second waiver of his speedy trial rights in the trial court. (Doc. No. 155). Appellant's jury trial was rescheduled for December 20, 2016. (Doc. No. 169). On November 28, 2016, Appellant, through counsel, filed a motion to continue. (Doc. No. 171). Specifically, Appellant's trial counsel represented to the court that he had encountered difficulty contacting potential defense witnesses in preparation for trial. (Id. ). A hearing was held on Appellant's motion for a continuance on November 30, 2016. (Doc. No. 174). At the hearing, Appellant refused to further waive his right to a speedy trial beyond the January 1, 2017 date set forth in Appellant's previous waiver. (Id. at 2). Despite Appellant's refusal, the trial court found that a sixty (60) day continuance was necessary and not unreasonable under the circumstances. (Id. at 8). Appellant's trial was set for February 21, 2017. (Id. ).
{¶ 14} On February 3, 2017, the State filed its motion for a continuance, due to the Ohio Supreme Court's recent decision in State v. Gonzales, requiring that the State must prove the actual weight of a drug in question, (excluding any filler materials) to meet the statutory weight requirement. (Doc. No. 180). Stated better, based on the change in the prosecution of drug offenses under State v. Gonzales , the State requested additional time to determine the actual weight of the cocaine possessed by Appellant. Appellant objected to the State's motion for continuance. (Doc. No. 181). The trial court, finding that the Ohio Supreme Court's decision in Gonzales was a significant departure from previous precedent and custom in drug prosecutions, granted the State's motion. (Doc. No. 182). Ultimately, Appellant's trial was rescheduled for May 16, 2017. (Doc. No. 184).
{¶ 15} On April 12, 2017, Appellant filed a motion to dismiss in the trial court. (Doc. No. 202). Specifically, Appellant requested that his cases be dismissed, pursuant to R.C. 2945.73(B) and R.C. 2945.71(C)(2), because he had been held in custody for 276 days, which exceeded the statutorily permissible 270 days. (Id. ). The State responded to Appellant's motion, arguing that the time involving its continuance (of February 3, 2017) should not count against it, because that continuance was "reasonable and necessary" under the circumstances of the case. (Doc. No. 205). The trial court overruled Appellant's motion on April 19, 2017. (Doc. No. 206).
{¶ 16} On May 9, 2017, the Appellant fired his trial counsel and a new attorney was appointed to represent the Appellant. (Doc. No. 211). As a result, Appellant's trial was rescheduled for August 1, 2017. (Doc. No. 214).
{¶ 17} On July 28, 2017, Appellant filed a pro se "motion for pro se counsel" and a "motion for continuance of trial date." (Doc. Nos. 237; 238). Appellant alleged that his current counsel had failed to file pretrial motions and subpoena witnesses in preparation for his upcoming trial. (Id. ). The trial court overruled Appellant's motions on August 1, 2017, finding that Appellant had five (5) different attorneys during the pendency of his cases, and that extensive pretrial discovery had been conducted during the course of the cases. (Doc. No. 239).
{¶ 18} Appellant's jury trial commenced on August 1, 2017. (Doc. No. 243). Prior to the start of the trial, in case number CR 2014 0118, the State made an oral motion to amend Count One in the indictment, possession of cocaine, a felony of the first degree, to possession of cocaine, a felony of the second degree. (Id. ). The trial court granted the State's motion. (Id. ) Further, the State made an oral motion to dismiss Count Three in the indictment, aggravated possession of drugs, a felony of the fifth degree, which the trial court also granted. (Id. ). The Appellant did not object to either motion.
{¶ 19} Appellant's trial ended August 3, 2017,...
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