State v. Dukes, Case No. 16CA3745
| Decision Date | 07 August 2017 |
| Docket Number | Case No. 16CA3760,Case No. 16CA3745 |
| Citation | 2017 Ohio 7204 |
| Parties | STATE OF OHIO, Plaintiff-Appellee, v. YOLANDA DUKES, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
DECISION AND JUDGMENT ENTRY
APPEARANCES:
James H. Banks, Dublin, Ohio, for Appellant.
Mark E. Kuhn, Scioto County Prosecuting Attorney, and Jay Willis, Scioto County Assistant Prosecuting Attorney, Portsmouth, Ohio, for Appellee.
{¶1} Appellant, Yolanda Dukes, appeals the trial court's judgment denying her motion to suppress, her convictions and sentences imposed after a jury trial, as well as the trial court's judgment denying her motion for a new trial. On appeal, Appellant contends that 1) the trial court erred in refusing to suppress her statements and the pills obtained through illegal search of her vehicle; 2) her due process rights were violated and her indictment and conviction did not set forth proper elements of the crimes charged, nor the valid statutory provisions for the crimes such as to require reversal of her convictions; 3) the trial court erred in sentencing her; and 4) the trial court erred in refusing to grant a new trial based upon jury misconduct.
{¶2} Because we have failed to find merit in any of the assignments of error raised by Appellant, the judgments of the trial court with regard to both motions to suppress and the motion for new trial court are affirmed. Further, the judgment of the trial court convicting and sentencing Appellant on felony trafficking and possession of oxycodone and hydrocodone is also affirmed.
{¶3} A review of the record herein indicates that Appellant was indicted on four felony counts as follows: count one, aggravated trafficking (oxycodone/schedule II) in violation of R.C. 2925.03(A)(2) and 2925.03(C)(1)(d), a second degree felony; count two, aggravated possession of drugs (oxycodone/schedule II) in violation of R.C. 2925.11(A) and R.C. 2925.11(C)(1)(c), a second degree felony; count three, trafficking in drugs (hydrocodone/schedule III) in violation of R.C. 2925.03(A)(2) and R.C. 2925.03(C)(2)(d), a third degree felony; and count four, possession of drugs (hydrocodone/schedule III) in violation of R.C. 2925.11(A) and 2925.11(C)(2)(c), a third degree felony.1
{¶4} The indictment stemmed from a traffic stop that occurred on January 2, 2015. As the case proceeded through discovery, Appellant filed two different motions to suppress. The first motion primarily focused on the traffic stop and search, and it was denied by the trial court. The second motion primarily focused on statements made by Appellant allegedly without the benefit of Miranda warnings. The trial court granted the motion in part, ordering all statements made by Appellant prior to receiving Miranda warnings at the Ohio State Highway Patrol Post be suppressed. However, the trial court found that Miranda warnings were given at the patrol post and that statements made thereafter were admissible.
{¶5} The case proceeded to a two-day jury trial. The State presented three witnesses, including Trooper Drew Kuehne (the K-9 officer who initiated the traffic stop), Trooper Nick Lewis (another trooper who assisted with the stop and search), Detective Steve Brewer (for stipulations to chain of custody), and Jennifer Sulcebarger, a forensic drug chemist employed with the Ohio Bureau of Criminal Identification and Investigation (who testified regarding the identification and amount of the drugs discovered inAppellant's vehicle). Appellant testified on her own behalf and presented no other witnesses.
{¶6} A review of the trial testimony indicates that Appellant was traveling southbound in a rented vehicle with out-of-state license plates on Route 23 near Portsmouth, Ohio, with a passenger, Darryl Brown, at approximately 11:45 a.m. on January 2, 2015. According to Trooper Kuehne, Appellant was stopped after she made an abrupt lane change which cut off the vehicle behind her, and thereafter traveled over the fog line, resulting in a marked lanes violation.2 The violations were not caught on the cruiser video. Trooper Kuehne asked Appellant to get out of her vehicle and placed her in the front seat of his cruiser while he ran the license and information of both Appellant and her passenger.
{¶7} While waiting on information from dispatch, Trooper Kuehne asked Appellant where she was going, and she said she was going to Cincinnati to shop. When he informed her she wasn't headed towards Cincinnati, she then stated she was going to Kentucky first to visit a cousin. Appellant also stated they were returning to Michigan that day, as she had to turn the car in the next day. Trooper Kuehne considered Appellant's story to be odd due to the stated destinations and time frames and, as a result, herequested dispatch to also run a criminal history report as well. Trooper Kuehne then asked the passenger, who was still seated in Appellant's vehicle, the same questions. Based upon the answers given by the passenger, Trooper Kuehne decided to walk his dog around Appellant's vehicle to conduct a canine sniff. Another officer, Trooper Lewis, arrived around this time to assist.
{¶8} The canine sniff resulted in the K-9 indicating on the driver's side door of Appellant's vehicle. As a result, Appellant and her passenger were both placed in the back of Trooper Lewis' cruiser while both troopers conducted a search of the vehicle. The troopers eventually located approximately 500 oxycodone pills and approximately 200 hydrocodone pills in the passenger side kick panel, as well as a MapQuest printout with directions from 17661 Collinson Avenue, East Point, Michigan, which was Appellant's address, to 1601 High Street, Portsmouth, Ohio.
{¶9} Appellant and her passenger were then transported to the patrol post, where they were Mirandized and questioned. The passenger remained silent but Appellant engaged in a conversation with law enforcement which resulted in her informing them that she was bringing the drugs in question to "a fein named Rock," and that the directions were to his house. Trooper Lewis was familiar with a Rocky Newman, whose mother lived on High Street, and obtained a photo of Rocky. Appellant confirmed the photo was the "Rock" she was to meet to deliver the drugs and obtain $13,000 in exchange. Appellant then worked with law enforcement to conduct an attempted controlled buy involving Rocky Newman at a local motel. Apparently, however, no deal ended up being made and little other information was presented regarding the results of the attempted controlled buy. Appellant and her passenger were both permitted to go home that night.
{¶10} The case was submitted to the jury for a decision, which ultimately resulted in Appellant being convicted on all counts of the indictment. In imposing sentence, the trial court merged count two with count one and imposed a stated mandatory prison term of five years. The trial court also merged count four with count three and imposed a stated mandatory prison term of thirty-six months. The trial court further ordered the sentences to be served consecutively. Thereafter, a report of alleged juror misconduct was brought to the trial court's attention by way of Appellant's filing of a motion for a new trial. The motion alleged that jurors had utilized their cell phones during jury deliberations to look up information and definitions related to the charges.
{¶11} As a result, the trial court conducted a hearing attended by all of the jurors on the case. After questioning each juror and being satisfied that the misconduct did not affect the outcome of the trial, the trial court denied Appellant's motion for a new trial. Appellant has now timely appealed from her convictions and sentences, as well as the trial court's denial of her motions to suppress and motion for a new trial, setting forth the following assignments of error for our review.
{¶12} In her first assignment of error, Appellant challenges the trial court's denial of her motions to suppress. Appellant raises multiple issues under this assignment of error, which are as follows: 1) whether the stop of her vehicle was unlawful and based impermissibly on racial profiling and lack of probable cause; 2) whether the canine sniff of her vehicle unlawfully extended the traffic stop; 3) whether the search of her vehicle was based upon speculation and violates her Fourth Amendment rights; 4) whether her interrogation prior to receiving Miranda warnings requires suppression of her statements; 5) whether the statements she made prior to receiving Miranda warnings require suppression of later statements as fruit of the poisonous tree; 6) whether the trial court's ruling admonishing her that statements made at her suppression hearing could be used against her at trial improperly required her to forfeit her Miranda rights, such to require reversal of her convictions; and 7) whether said admonitions constitute plain error and require reversal of her convictions.
{¶13} Appellate review of a motion to suppress presents a mixed question of law and fact. State v. Gurley, 2015-Ohio-5361, 54 N.E.3d 768, ¶ 16 (4th Dist.); citing State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, ¶ 100. At a suppression hearing, the trial court acts as the trier of fact and is in the best position to resolve factual questions and evaluate witness credibility. Id.; State v. Burnside,...
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