State v. Fenderson
| Decision Date | 10 June 2022 |
| Docket Number | E-21-018 |
| Citation | 2022 Ohio 1973 |
| Parties | State of Ohio Appellees v. Takye S. Fenderson Appellant |
| Court | Ohio Court of Appeals |
Court of Appeals Trial Court No. 2019 CR 0393
Kevin J. Baxter, Erie County Prosecuting Attorney, and Kristin R Palmer, Assistant Prosecuting Attorney, for appellee.
Henry Schaefer, for appellant.
DECISION AND JUDGMENT
{¶ 1} Appellant, Takye S. Fenderson, appeals the judgment of the Erie County Court of Common Pleas, convicting him following a jury trial of one count of possession of drugs, one count of trafficking in drugs, and one count of corrupting another with drugs. For the reasons that follow we affirm, in part, and reverse, in part.
{¶ 2} On November 14, 2019, the Erie County Grand Jury indicted appellant on four counts, including one count of possession of a fentanyl-related compound in violation of R.C. 2925.11(A) and (C)(11)(b), a felony of the fourth degree, one count of trafficking in a fentanyl-related compound in violation of R.C. 2925.03(A)(1) and (C)(9)(c), a felony of the fourth degree, one count of receiving stolen property in violation of R.C. 2913.51(A) and (C), a felony of the fifth degree, and one count of having weapons while under disability in violation of R.C. 2923.13(A)(2) and (B), a felony of the third degree. Later, on February 12, 2020, the Erie County Grand Jury indicted appellant on a fifth count, corrupting another with drugs in violation of R.C. 2925.02(A)(3) and (C)(1), a felony of the second degree. Prior to trial, the count of receiving stolen property was dismissed.
{¶ 3} Appellant was initially represented by a public defender. On January 3, 2020, appellant retained attorney Jonathan McGookey to represent him. McGookey moved for leave to withdraw as counsel on April 9, 2020, which the trial court granted. The public defender re-entered his appearance on May 18, 2020. On June 11, 2020, appellant retained attorney Michael Duff to represent him. On July 10, 2020, Duff moved for leave to withdraw as counsel, which the trial court granted. On July 27, 2020, appellant retained attorney R.J. Budway.
{¶ 4} On December 15, 2020, the matter was scheduled for a jury trial beginning on May 17, 2021.
{¶ 5} On March 19, 2021, Budway moved for leave to withdraw as counsel. On the same day, he also moved for leave to file pre-trial motions to suppress and for a change of venue. A hearing was held on March 23, 2021. At the hearing, it was discussed that following Budway's agreement to represent appellant, appellant was indicted in a separate case on several counts, including murder, which added obvious complexity to Budway's representation of appellant.[1] Budway argued that appellant was not meeting his contractual obligations, and that he needed to be paid within one week in order to be able to adequately prepare for trial. Appellant argued that he was or would be making payments to Budway, and the original agreement was that he would pay Budway before trial. Furthermore, appellant argued that none of his attorneys had filed relevant motions, such as a motion to suppress, despite his request to do so. The court responded to appellant, After the state emphasized that the court could force Budway to stay on the case, and noted the court's rule that another attorney has to come on before the current attorney could withdraw, the court informed appellant that Budway was representing him on the case until another attorney entered an appearance. The trial court ended the hearing by giving appellant one week to meet his contractual obligation to Budway, and two weeks to file any pre-trial motions.
{¶ 6} No motions were filed by appellant within the two weeks. On May 10, 2021, one week before the scheduled trial date, the trial court denied Budway's March 19, 2021 motion to withdraw. The next day, appellant filed a motion to suppress evidence discovered during the search of a vehicle. The trial court denied the motion on May 13, 2021, finding that it was untimely.
{¶ 7} Ultimately, the matter proceeded to a four-day jury trial beginning on May 17, 2021. Prior to voir dire, appellant orally moved for a continuance. Budway explained that almost immediately following the March 23, 2021 hearing, appellant requested his case file, which Budway gave to him. Budway did not hear anything further from appellant, and assumed that appellant would be retaining new counsel. Budway then described that on April 27, 2021, he was at court for a separate case, and discussed the matter of his representation of appellant with the court and the state. Budway learned that the trial court was not going to allow him to withdraw, and that he would proceed as appellant's counsel either as private counsel, or as his court-appointed attorney. Around that time, Budway also received supplemental discovery from the state in preparation of trial. Budway contacted appellant, and met with him twice in preparation of trial. Budway argued to the court that he has spent most of his time since April 27, 2021, attempting to get the case ready for trial, but that he has not had the opportunity to go over the evidence as thoroughly as he would have liked.
{¶ 8} Upon consideration, the trial court commented that appellant has known of the trial date for many months, and did nothing. In particular, despite requesting the case file, appellant did not hire a new lawyer, nor did appellant return to the court and ask for a lawyer to be appointed. Therefore, the court denied appellant's oral motion for a continuance.
{¶ 9} At the trial, the following evidence was presented.[2] Officer Richard Henderly of the Perkins Township Police Department testified that on the morning of August 22, 2019, he responded to a call of an unresponsive male in a home in Erie County. When he arrived at the scene, he was led to an upstairs bedroom where a man was crying on top of another man. The man laying underneath, later identified as 26-year-old Joseph Morgan, appeared to not be breathing and there was red foam coming from his nose and mouth, and which was all over his chest. Joseph was pronounced dead at the scene. The man crying on top of Joseph was his father, Monte Morgan.
{¶ 10} Monte testified that Joseph had recently moved to the area from St. Louis. In July 2019, Joseph admitted to Monte that he had a problem with drug addiction, and Monte helped Joseph check in to a rehab center. Joseph completed the inpatient portion of the rehab and was released to outpatient services. He was also given a prescription for Vivitrol.
{¶ 11} Monte testified that sometime around Joseph's stay in rehab, he was driving in his truck with Joseph when a car swerved in front of them, honked, and made a hard left into a parking lot as if trying to get Monte to pull into the parking lot as well. A second or two later, Joseph's phone rang, and Monte overheard Joseph speaking with the person who had just swerved in front of them. Joseph explained to his father that it was a friend from "the Tims"-a local apartment complex-that he goes and visits. Monte identified the driver of the car as appellant.
{¶ 12} On August 21, 2019, Joseph had a fight with his girlfriend, with whom he had recently had a child, regarding the fact that his name was not listed on his baby's birth certificate. Joseph's girlfriend obtained a restraining order against him, and so that night Joseph stayed over at Monte's house. Joseph shared a room with "CJ," Joseph's cousin, who also was staying at Monte's house. Monte testified that he last saw Joseph around midnight when Monte woke up and went into the kitchen to get a snack and a drink. Monte saw Joseph sitting in the kitchen with his phone in his hand and his hand on his head, looking lost and depressed. Monte, knowing of the potential for relapse, went to Joseph and put his arm around him, and put his head against Joseph's, and told Joseph to stay strong and that they would get through the situation.
{¶ 13} The next morning, Monte was awoken by CJ, who told him that something was wrong with Joseph. When Monte entered the room, he grabbed Joseph and realized that Joseph's body was cold. Monte immediately knew that Joseph was dead.
{¶ 14} Monte later met with police detectives, and turned over Joseph's phone, which he found in the bed with Joseph. A few days later, Monte summoned the strength to go into Joseph's room again. Monte picked up the pair of pants that Joseph was wearing the night before he died. Inside one of the pockets were two blue pills. Monte took those pills out of the house and called the police detective.
{¶ 15} Katie McKitrick, the Director of Public Health Nursing at the Erie County Health Department testified that Joseph began voluntary inpatient rehab on July 30, 2019, and was released on August 6, 2019. Upon his release, Joseph was given a 30-day supply of an oral form of Vivitrol. He then had a follow-up appointment on August 15, 2019. Joseph had an additional appointment scheduled for August 23, 2019, the day after he died.
{¶ 16} CJ testified that he became aware that Joseph had a drug problem in July 2019. On several occasions, CJ would accompany Joseph to the Tims. CJ testified that typically he would ride with Joseph over to the Tims, and once there, Joseph would exit the vehicle and meet up with appellant. On one of those occasions, Joseph introduced CJ to appellant. CJ also testified that one time he went with Joseph to a bar in Fremont, which CJ assumed Joseph went into to purchase some items.
{¶ 17} CJ explained that he first learned of appellant in...
To continue reading
Request your trial