State v. Gonzales, Court of Appeals No. WD-13-086
| Decision Date | 06 February 2015 |
| Docket Number | Court of Appeals No. WD-13-086 |
| Citation | 2015 Ohio 461 |
| Court | Ohio Court of Appeals |
| Parties | State of Ohio Appellee v. Rafael Gonzales Appellant |
DECISION AND JUDGMENT
Paul A. Dobson, Wood County Prosecuting Attorney, Gwen Howe-Gebers, Chief Assistant Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee.
Andrew R. Mayle, Jeremiah S. Ray and Ronald J. Mayle, for appellant.
{¶ 1} Appellant, Rafael Gonzales, appeals the judgment of the Wood County Court of Common Pleas, sentencing him to eleven years in prison following a jury trial in which he was found guilty of possession of cocaine with a major drug offender specification. We affirm, in part, and reverse, in part.
{¶ 2} This matter arises from appellant's purchase of cocaine from a confidential informant, Saul Ramirez, on July 26, 2012. On the day of the transaction, Ramirez recorded a telephone conversation with appellant during which appellant agreed to meet with Ramirez in order to purchase cocaine. Appellant proceeded to meet with Ramirez at a Meijer parking lot in Wood County, Ohio, so that he could inspect the drugs prior to making the purchase. During the meeting, appellant tested the quality of the cocaine, negotiated a price, and scheduled a time for the two to meet in order to complete the transaction. Appellant and Ramirez agreed to meet at a Super 8 motel located along I-280 in Wood County.
{¶ 3} Later in the afternoon, appellant arrived at the motel and was instructed to meet Ramirez in room 105. After arriving and meeting with Ramirez, appellant became upset because Ramirez would not produce the cocaine until appellant presented the purchase money. Eventually, appellant displayed $58,000 in cash, an amount sufficient to purchase two kilograms of cocaine. Thereafter, an undercover officer posing as a truck driver entered the room with two kilograms of cocaine. The first kilogram, later admitted at trial as exhibit No. 3, consisted of manufactured cocaine surrounding a baggie containing genuine cocaine weighing 139 grams. The baggie was separately admitted at trial as exhibit No. 13. The second kilogram, admitted at trial as exhibit No. 4, contained a tracking device planted inside the manufactured cocaine. After the money was counted, appellant took possession of the two kilograms of cocaine and departed.
{¶ 4} Appellant was subsequently arrested, after which the drugs were seized by the arresting officers and tested by the Ohio Bureau of Criminal Investigation (BCI). The BCI test confirmed that the substance contained inside exhibit No. 13 was indeed cocaine. However, the BCI analyst that performed the test was unavailable to testify at trial. Consequently, the test results were not admitted at trial. Nonetheless, the state retested the substance on November 1, 2013, four days prior to trial. The results of the test were provided to appellant. However, because appellant was given the test results only a short time prior to trial, the trial court excluded the second BCI report and both test results out of concern that their use at trial would violate Crim.R. 16(K).
{¶ 5} On August 1, 2012, appellant was indicted on one count of possession of cocaine in violation of R.C. 2925.11(A) and (C)(4)(f). The indictment also included a major drug offender specification pursuant to R.C. 2929.01 based on the allegation that the amount of cocaine equaled or exceeded 100 grams.
{¶ 6} Appellant subsequently entered a plea of not guilty. Following pretrial discovery, a jury trial commenced on November 5, 2013. During the trial, the state solicited testimony from several witnesses, including Ramirez and numerous law enforcement officers. Appellant's primary argument at trial centered on the state's failure to establish that the substance seized from appellant was cocaine. While the state was not permitted to utilize the BCI test results to identify the seized substances as cocaine, several witnesses, including Ramirez, stated that the substance was cocaine based on their experience with the drug. Specifically, Ramirez conducted a visual andolfactory examination of the substance contained in exhibit No. 13. Based on his examination, Ramirez testified that the substance was, in fact, cocaine. Later in the trial, the state called Mark Denomy, the officer who prepared exhibit No. 13. Denomy indicated that he had participated in hundreds of cocaine operations. He went on to describe the characteristics of cocaine, noting that it has a distinct smell that makes it readily identifiable. Ultimately, Denomy stated that exhibit No. 13 contained cocaine. Moreover, the lead investigator on this case, Mark Apple, stated that exhibit No. 13 contained cocaine. Apple smelled the cocaine, after which he testified: "There is a definite odor to cocaine and exhibit 13 did have that odor."
{¶ 7} At the conclusion of the evidence, the jury found appellant guilty of possession of cocaine. Additionally, the jury found that appellant possessed an amount of cocaine that equaled or exceeded 100 grams. The trial court immediately proceeded to sentencing, where it sentenced appellant to 11 years in prison and imposed a $15,000 fine. Appellant's timely appeal followed.
{¶ 8} On appeal, appellant asserts the following assignments of error for our consideration:
{¶ 9} In appellant's first assignment of error, he argues that the trial court erred in allowing the state's witnesses to identify the substance contained in exhibit No. 13 as cocaine without first requiring the state to certify the witnesses as experts and comply with the mandates of Crim.R. 16(K). Moreover, appellant's second assignment of error alleges that the trial court erred in submitting this case to the jury where there wasinsufficient evidence to establish that exhibit No. 13 contained cocaine under R.C. 2925.01(X). Because these assignments of error are interrelated, we will address them simultaneously.
{¶ 10} When reviewing a challenge to the sufficiency of the evidence, we must determine whether the evidence admitted at trial, State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.E.2d 560 (1979); see also State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997). Therefore, "[t]he verdict will not be disturbed unless the appellate court finds that reasonable minds could not reach the conclusion reached by the trier-of-fact." State v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997), citing Jenks at paragraph two of the syllabus.
{¶ 11} In the present case, appellant argues that the state failed to identify the cocaine through the use of admissible testimony. While he acknowledges that the cocaine was identified by Ramirez and several police officers, appellant argues that the identification testimony was given in the form of expert testimony, which should have been excluded since the state failed to comply with Crim.R. 16(K). Indeed, appellant contends that the cocaine could only have been identified through the use of experttestimony given the technical nature of the statutory definition of cocaine under R.C. 2925.01(X).
{¶ 12} We begin our analysis of appellant's first and second assignments of error by examining whether expert testimony is required to identify a substance as "cocaine," as that term is defined in R.C. 2925.01(X). R.C. 2925.01(X) defines cocaine as follows:
{¶ 13} "Cocaine" means any of the following:
{¶ 14} Given the technical nature of the definition of cocaine, appellant urges us to "hold that scientific testimony is required to identify powder cocaine under the circumstances of this case." App...
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