State v. Frye

• Decision Date: 12 March 2018
• Docket Number: NO. 1–17–30,1–17–30
• Citation: 108 N.E.3d 564,2018 Ohio 894
• Parties: STATE of Ohio, Plaintiff–Appellee, v. Marlon D. FRYE, Defendant–Appellant.
• Court: Ohio Court of Appeals

108 N.E.3d 564

2018 Ohio 894

STATE of Ohio, Plaintiff–Appellee,

v.Marlon D. FRYE, Defendant–Appellant.

NO. 1–17–30

Court of Appeals of Ohio, Third District, Allen County.

Date of Decision: March 12, 2018

Kenneth J. Rexford, Lima, for Appellant

Jana E. Emerick, Lima, for Appellee

PRESTON, J.

{¶ 1} Defendant-appellant, Marlon D. Frye ("Frye"), appeals the July 11, 2017 judgment entry of sentence of the Allen County Court of Common Pleas. For the reasons that follow, we affirm.

{¶ 2} On December 15, 2016, the Allen County Grand Jury indicted Frye on three counts, including: Count One of having weapons while under disability in violation of R.C. 2923.13(A)(3), (B), a third-degree felony, Count Two of tampering with evidence in violation of R.C. 2921.12(A)(1), (B), a third-degree felony, and Count Three of aggravated possession of drugs in violation of R.C. 2925.11(A), (C)(1)(a), a fifth-degree felony. (Doc. No. 4). The indictment contains a firearm specification under R.C. 2941.141(A) and a forfeiture specification under R.C. 2941.1417(A) as to Count One. (Id. ). The forfeiture specification identifies "a .22 Caliber Derringer" as property subject to forfeiture. (Id. ).

{¶ 3} On December 23, 2016, Frye appeared for arraignment and entered pleas of not guilty. (Doc. No. 13).

{¶ 4} On December 28, 2016, Frye filed a motion to suppress evidence "of the unwarranted searches of Mr. Frye's trash and invasion of his privacy." (Doc. No. 14). Specifically, Frye argued "that the trash pulls were done without warrant and over an unreasonable number of pulls." (Id. ). The State filed its response to Frye's motion to suppress evidence on January 24, 2017. (Doc. No. 21). After a hearing on March 6, 2017, the trial court denied Frye's motion to suppress evidence. (Doc. No. 30).

{¶ 5} Frye filed a motion to dismiss Count Three of the indictment on January 17, 2017. (Doc. No. 18). In his motion, Frye argued that "ADB–Fubinaca is not yet a Schedule I controlled substance, or at least was not one as of the date of the act leading to Count [Three] in the Indictment." (Id. ). Frye filed a supplement to his motion to dismiss Count Three of the indictment on February 7, 2017. (Doc. No. 27). The trial court denied Frye's motion to dismiss Count Three of the indictment on March 7, 2017. (Doc. No. 31).

{¶ 6} On April 21, 2017, Frye filed a motion in limine requesting that Cornelius Patterson ("Patterson") and Timothy Frye ("Timothy") be granted immunity in exchange for their testimony. (Doc. No. 36). After a hearing on May 16, 2017, the trial court denied Frye's request to grant Patterson and Timothy immunity in exchange for their testimony on May 17, 2017. (Doc. No. 57).

{¶ 7} On May 23–25, a jury trial was held. (May 23–25, 2017 Tr., Vol. I, at 1); (May 23–25, 2017 Tr., Vol. IV, at 642). On May 25, 2017, the jury found Frye guilty as to the counts and specifications in the indictment. (Doc. Nos. 62, 63, 64); (May 23–25, 2017 Tr., Vol. IV, at 639–640). The trial court filed its judgment entry of conviction on May 26, 2017. (Doc. No. 65).

{¶ 8} On May 31, 2017, Frye filed a motion for a new trial under Crim.R. 33(A)(1) and (5) as to Count Three of the indictment arguing that the trial court "erred by adopting (over objection) an incorrect definition of ‘constructive possession’ into the Jury Instructions." (Doc. No. 69). On June 7, 2017, the trial court denied Frye's motion for a new trial. (Doc. No. 70).

{¶ 9} On July 10, 2017, the trial court sentenced Frye to 36 months in prison on Count One, one year in prison on the firearm specification, 9 months in prison on Count Two, and 9 months in prison on Count Three, and ordered that Frye serve the terms consecutively for an aggregate sentence of 54 months in prison. (Doc. No. 73). The trial court ordered forfeited the .22 Derringer. (Id. ). The trial court filed its judgment entry of sentence on July 11, 2017. (Id. ).

{¶ 10} Frye filed his notice of appeal on July 24, 2017. (Doc. No. 76). He raises eight assignments of error for our review. To facilitate our discussion, we will first address Frye's sixth and seventh assignments of error together, followed by his first, second, third, fourth, fifth, and eighth assignments of error.

Assignment of Error No. VI

The convictions for all three counts were against the manifest weight of the evidence.

Assignment of Error No. VII

The conviction for Possession of ADB–Fubinaca was not supported by sufficient evidence.

{¶ 11} In his seventh assignment of error, Frye argues that his possession-of-drugs conviction is based on insufficient evidence. In particular, he argues that the State presented insufficient evidence that he had constructive possession of the ADB–Fubinaca. In his sixth assignment of error, Frye argues that his convictions are against the manifest weight of the evidence. Regarding his possession-of-drugs conviction, he argues that the weight of the evidence shows that he did not knowingly possess a controlled substance.

{¶ 12} Manifest "weight of the evidence and sufficiency of the evidence are clearly different legal concepts." State v. Thompkins , 78 Ohio St.3d 380, 389, 678 N.E.2d 541 (1997). As such, we address each legal concept individually.

{¶ 13} "An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt." State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, superseded by state constitutional amendment on other grounds , State v. Smith , 80 Ohio St.3d 89, 684 N.E.2d 668 (1997). Accordingly, "[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." Id. "In deciding if the evidence was sufficient, we neither resolve evidentiary conflicts nor assess the credibility of witnesses, as both are functions reserved for the trier of fact." State v. Jones , 1st Dist. Hamilton Nos. C–120570 and C-120571, 2013-Ohio-4775, 2013 WL 5864591, ¶ 33, citing State v. Williams , 197 Ohio App.3d 505, 2011-Ohio-6267, 968 N.E.2d 27, ¶ 25 (1st Dist.).

See also State v. Berry , 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, 2013 WL 2638704, ¶ 19 ("Sufficiency of the evidence is a test of adequacy rather than credibility or weight of the evidence."), citing Thompkins at 386, 678 N.E.2d 541.

{¶ 14} On the other hand, in determining whether a conviction is against the manifest weight of the evidence, a reviewing court must examine the entire record, " ‘weigh[ ] the evidence and all reasonable inferences, consider[ ] the credibility of witnesses and determine[ ] whether in resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.’ " Thompkins at 387, 678 N.E.2d 541, quoting State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). A reviewing court must, however, allow the trier of fact appropriate discretion on matters relating to the weight of the evidence and the credibility of the witnesses. State v. DeHass , 10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967). When applying the manifest-weight standard, "[o]nly in exceptional cases, where the evidence ‘weighs heavily against the conviction,’ should an appellate court overturn the trial court's judgment." State v. Haller , 3d Dist., 2012-Ohio-5233, 982 N.E.2d 111, ¶ 9, quoting State v. Hunter , 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119, 960 N.E.2d 955.

{¶ 15} At trial, the State offered the testimony of Investigator Jesse Harrod ("Investigator Harrod") of the Lima Police Department, assigned to the Lima/Allen County Interdiction Task Force ("Task Force"), who testified that the Task Force began investigating Frye in June 2016 after receiving a tip that an individual "that lived at 1109 St. Johns Avenue in Lima [ ] was dealing in large amounts of narcotics, specifically crack cocaine." (May 23–25, 2017 Tr., Vol. II, at 230–231, 233). According to Investigator Harrod, through his five-month investigation, he learned that Frye resided at 1109 St. Johns Avenue. (Id. at 234–235).

{¶ 16} Investigator Harrod testified that the Task Force conducted "a series of trash pulls from" 1109 St. Johns Avenue, which occurred "on Friday mornings, early Friday mornings—August 19th of 2016, October 28th of 2016 and November 4th of 2016." (Id. at 236). On November 4, 2016, Investigator Harrod prepared a search-warrant affidavit referencing the evidence discovered from the trash pulls as well as additional information he gathered over the course of his investigation. (Id. ). After obtaining the search warrant, Investigator Harrod "met with other Investigators with the Allen County Sheriff's Office S.W.A.T. team [ ("SWAT team") ] to brief them on the location" because the SWAT team "was going to be securing the residence for us before the Investigators searched it." (Id. at 244).

{¶ 17} Once law enforcement arrived at the residence and began to secure it, Investigator Harrod heard Investigator Trent Kunkleman ("Investigator Kunkleman") of the Lima Police Department, assigned to the West Central Ohio Crime Task Force, "announce that there was a subject looking out of an upstairs bedroom window." (Id. at 246–247). Within seconds of Investigator Kunkleman's announcement, the SWAT team entered the residence. (Id. at 247). According to Investigator Harrod, based on that timing, the person looking out the bedroom window could not "have made it downstairs and then back upstairs before [the SWAT team] went in the front door." (Id. ). After the residence was secure, law enforcement discovered two individuals in the residence—Frye and Patterson. (Id. at 247–248). "Frye was located in the...