State v. Dotson

• Decision Date: 13 March 1987
• Docket Number: No. 5-85-26.,5-85-26.
• Citation: 520 NE 2d 240,35 Ohio App.3d 135
• Parties: THE STATE OF OHIO, APPELLEE, v. DOTSON, A.K.A. GRIZZLEY, APPELLANT.
• Court: Ohio Court of Appeals

35 Ohio App.3d 135

520 NE 2d 240

THE STATE OF OHIO, APPELLEE, v. DOTSON, A.K.A. GRIZZLEY, APPELLANT.^*

No. 5-85-26.

Court of Appeals of Ohio, Hancock County.

Decided March 13, 1987.

Joseph H. Niemeyer, prosecuting attorney, and Carol N. Perry, for appellee.

Richard L. Gleason, for appellant.

COLE, C.J.

This is an appeal from a judgment of conviction and sentence of the defendant, now appellant, by the Common Pleas Court of Hancock County, for the offense of aggravated trafficking in drugs in violation of R.C. 2925.03(A)(5). In each count the defendant was charged with selling LSD (but on two different days), with a specification that he had previously been convicted of a felony drug abuse offense. In the first count the charge was for selling an amount equal to the bulk amount on December 1, 1982; in the second for selling on December 20, 1983, an amount exceeding the bulk amount but in an amount less than three times that amount. The defendant entered a plea of not guilty. There were numerous pre-trial motions, succeeded by a lengthy trial to a jury which found the defendant guilty as charged. He now appeals, asserting seven assignments of error which we will consider in the following opinion. To efficiently relate the factual material to the specific assignments of error, we will set forth those facts pertinent to each assigned error in the discussion directed to that assignment.

I. It is first contended that the trial court committed error prejudicial to the appellant in overruling a motion to dismiss charges against him and to quash in its entirety the state's evidence for the reason that the city of Findlay police "had no jurisdiction to investigate and gather evidence outside the City of Findlay."

This charge involved the selling of LSD to a police informer who was an agent of the city of Findlay Police Department. The evidence indicated that the actual sales both occurred in a trailer park near, but outside, the city limits. Appellant contends that the evidence so obtained by the informer should be quashed because the police of Findlay had no authority to investigate crimes committed outside the city limits.

It is clear that the defendant was not arrested by a Findlay police officer. He was indicted by the grand jury and the warrant issued thereon was served and the defendant was arrested by a county sheriff. The only authorities cited by the appellant concern the limitation upon the power of a police officer to arrest. These cases support the proposition that a city police officer has no authority to effect an arrest beyond the territorial jurisdiction of the city involved. In Cincinnati v. Alexander (1978), 54 Ohio St. 2d 248, 8 O.O. 3d 224, 375 N.E. 2d 1241, the syllabus states:

"The authority granted in R.C. 2935.03 to a police officer to `arrest and detain a person found violating a law of this state' does not confer authority upon a municipal police officer to arrest without a warrant outside the geographical boundaries of his municipality for traffic offenses observed by the officer to have been committed outside such municipal limits."

The other authority cited by appellant concerns the power to arrest or to execute a search warrant. Neither of these actions is here involved.

We are cited to no authority that city police cannot investigate criminal activity occurring in areas outside the city limits. The drug traffic does not stop at town boundaries and may have serious damaging effects upon the population of the town. We know of no reason that a city or town cannot protect its citizens and schools by initiating and conducting investigations in nearby areas. The only problem would appear to be whether the city wished to finance such investigations, a matter for city council and not for the courts. Clearly here the city police had such authority and did not attempt to, in any way, exercise a power to arrest or to execute a search warrant beyond the city limits. Essentially they were witnesses.

It is also clear that the defendant was properly arrested by an officer with authority to do so on an indictment returned by a grand jury. It is further clear the trial court had jurisdiction over both the person of the defendant and the subject matter of the offense. The indictment was not subject to dismissal and we are not cited to, nor do we find authority requiring, the evidence of the prosecution here involved to be suppressed.

The assignment of error is not well-taken.

II. It is asserted that the trial court committed error in charging the jury upon aiding and abetting.

At the close of the state's case the prosecutor requested that the court include in its instructions to the jury a charge on aiding and abetting. It is the position of appellant that he was charged as a principal offender, but that the evidence failed to establish that he personally sold the LSD and that there was no principal offender established in any event. The trial court at the close of all evidence overruled the objection and decided to charge on aiding and abetting as to Count 1 only. All this took place before the court's instructions. Crim. R. 30(A) states:

"A party may not assign as error the giving or the failure to give any instructions unless he objects thereto before the jury retires to consider its verdict, stating specifically the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury."

It is contemplated by this rule that objection to the charge will be made after the charge is given, but before the jury retires. There appears in the record no objection at this point to the instruction on aiding and abetting as to Count 1 contained in the court's charge. It would appear that the error, if any, was not properly preserved for appeal.

In any event, the assignment of error is not well-taken.

In State v. Perryman (1976), 49 Ohio St. 2d 14, 3 O.O. 3d 8, 358 N.E. 2d 1040, the fifth paragraph of the syllabus states:

"5. When the evidence adduced at trial could reasonably be found to have proven the defendant guilty as an aider and abettor, a jury instruction by the trial court on that subject is proper."

It is clear from a review of the transcript that the evidence presented by the prosecution could be found to establish beyond a reasonable doubt that the defendant was guilty as an aider and abettor. Under these circumstances the charge by the trial court was fully justified.

The appellant apparently seeks to limit the express and broad holding of the syllabus to the specific factual situation involved in Perryman, supra. In this respect, we note the following quotation from the opinion in Smith v. Klem (1983), 6 Ohio St. 3d 16, 18, 6 OBR 13, 15-16, 450 N.E. 2d 1171, 1173:

"As to the precedential value of the second paragraph of the syllabus of State, ex rel.Smith, v. Court (1982), 70 Ohio St. 2d 213 it is well-established that the syllabus of an opinion issued by this court states the law of the case. DeLozier v. Sommer (1974), 38 Ohio St. 2d 268, 271 67 O.O. 2d 335; Cassidy v. Glossip (1967), 12 Ohio St. 2d 17 14 O.O. 2d 153, paragraph six of the syllabus; Baltimore & Ohio Rd. Co. v. Baillie (1925), 112 Ohio St. 567, paragraph two of the syllabus; Cleveland-Akron Bag Co. v. Jaite (1925), 112 Ohio St. 506; Merrick v. Ditzler (1915), 91 Ohio St. 256, 264. As such, all lower courts in this state are bound to adhere to the principles set forth therein. Merrick v. Ditzler, supra.

"In the past, this court has examined the syllabi of several of its cases and concluded that when obiter dictum appears therein it must be so recognized and considered. State, ex rel. Bd. of Edn., v. Morton (1975), 44 Ohio St. 2d 151, 153-154 73 O.O. 2d 454; DeLozier v. Sommer, supra. However, that determination is a function reserved exclusively for this court. Until such a determination is made, the syllabus is presumed to be the law of the case and all lower courts are bound to adhere to the principles set forth therein."

The syllabus of Perryman, supra, is directly applicable here.

It is further noted that a charge of complicity under R.C. 2923.03 may be charged either under that section or "in terms of the principal offense." The latter is what occurred in the present case and the defendant was on notice by virtue of this statute that evidence could be presented that he was either a principal offender, or an aider and abettor.

It is further objected that there was no evidence that there was a principal offender. It is clear from the prosecution's evidence that one David G. Withrow knowingly sold LSD to a police informant on December 1, 1983. Withrow testified:

"A. I had some LSD to get rid of and Ike Gibson wanted it, and Russell knew Ike.

"Q. Please?

"A. Russell knew Ike and they set it up so that I could get rid of the acid.

"Q. Who set it up?

"A. Russell.

"* * *

"A. Over to my house, to my trailer. They came in, I didn't have any at the time, it hadn't arrived.

"Ike was told to come back later or to get a hold of Russell later, and Russell would let him know when to get it or when we got it, and he was supposed to come back and get it. And we got it earlier the 1st, and he came back later the 1st and picked it up.

"Ike and Russell came over to my house the 1st, and I gave, I tossed Russell a little vial of acid, and he gave it to Ike, and Ike gave me the money, and Ike made a little joke about it, there being more in there than there was supposed to be, and we grabbed it back and counted them.

"* * *

"Q. So what specifically was sold then by you and Mr. Dotson?

"A. Ten hits of LSD.

"Q. And how much money was —

"A. $30.

"Q. And who paid you the money or who paid Mr. Dotson the money?

"A. Ike Gibson gave it to me."

Then clearly Withrow was the principal who was assisted, aided and abetted by Dotson, the appellant.

We find no merit in the assignment of error.

III. It is asserted that the trial court committed...