State v. Halka
| Citation | 166 N.E.3d 707 |
| Decision Date | 22 January 2021 |
| Docket Number | No. WD-19-061,WD-19-061 |
| Parties | STATE of Ohio, Appellee v. Cody Michael HALKA, Appellant |
| Court | Ohio Court of Appeals |
Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee.
Karin L. Coble, Toledo, for appellant.
DECISION AND JUDGMENT
{¶ 1} This matter is on appeal from the judgment of the Wood County Court of Common Pleas, which after a jury trial on a 22-count indictment for drug-related activities, sentenced appellant, Cody Halka, to an aggregate prison term of 33 years. Finding error as to the conviction on the corrupt practices charge, we reverse, in part, but affirm as to all other charges.
{¶ 2} In February of 2018, Detective Adam Skaff of the Bowling Green Police Department1 approached L.V., a 25-year-old Bowling Green State University student, and gave him a choice. L.V. could either face prosecution for his own activities in trafficking in cocaine, or he could lead police to a bigger fish. Police had gathered evidence against L.V. by conducting three controlled buys from him between September and October of 2017, using a confidential informant. L.V. agreed to help police, and identified appellant as someone who had sold him drugs, or the bigger fish.
{¶ 3} Detective Skaff set up a series of controlled buys from appellant, using L.V. as a confidential informant and coordinating with officers and agents from other police agencies. Each time appellant used Snapchat to arrange the sale with L.V. while L.V. was in Wood County, Ohio. Following standard protocol for a controlled buy, Skaff and other officers provided L.V. with currency, ensured L.V. had no drugs either on his person or in his vehicle, and monitored the transaction through visual and electronic surveillance.
{¶ 4} L.V. traveled to appellant in Lucas County to complete each transaction. Over several months, L.V. made increasingly larger purchases from appellant while following controlled-buy protocols. On March 30, 2018, L.V. purchased $300 worth of cocaine. On July 26, 2018, he spent $1,700. On August 10, L.V. increased his purchase to $3,300, and on August 24 he spent $5,000. After the August 24 transaction, federal Drug Enforcement Administration (DEA) agents executed a search warrant for appellant's home. Appellant identified one of his suppliers, but not his cocaine source. They did not arrest appellant, hoping to protect L.V.’s identity as a confidential informant, and hoping to eventually discover appellant's cocaine supplier.
{¶ 5} On October 24, 2018, L.V. arranged to buy $4,800 worth of cocaine from appellant, again arranging the sale through Snapchat while L.V. was in Wood County. Police obtained an anticipatory search warrant, to be executed once they received confirmation that appellant was ready for the sale, and DEA agents executed the search warrant at appellant's home in Lucas County. Local law enforcement provided tactical assistance. Upon their arrival and entry, agents observed appellant tossing bags of cocaine from a second-story window of the home, with one bag opening upon impact with a car, another snagging on the roof and a third impacting the sidewalk leading to the front porch, landing at the feet of an agent. As the bags landed, they spewed their contents, and agents recovered as much of the powder as they could with a broom and dustpan. Agents also recovered additional cocaine, still inside the home and on the upstairs window sill, and seized the cocaine and other evidence indicative of drug sales. After completing their search, the agents placed appellant under arrest.
{¶ 6} Appellee, the state of Ohio, charged appellant in a 22-count indictment for violations including possession and trafficking offenses, tampering with evidence, possession of criminal tools, and engaging in a pattern of corrupt activity.
{¶ 7} As to possession offenses, appellant was charged in Count 1 with possession of cocaine in violation of R.C. 2925.11(A) and (C)(4)(b), a felony of the fourth degree. He was charged in Counts 4 and 7 of possession of cocaine in violation of R.C. 2925.11(A) and (C)(4)(e), felonies of the first degree. He was charged in Count 10 and 16 of possession of cocaine with a major drug offender specification in violation of R.C. 2925.11(A) and (C)(4)(f), felonies of the first degree.
{¶ 8} As to trafficking offenses, appellant was charged in Counts 2 and 3 with trafficking in cocaine in violation of R.C. 2925.03(A)(1) and (C)(4)(c) in Count 2 and R.C. 2925.03(A)(2) and (C)(4)(c) in Count 3, both felonies of the fourth degree. He was charged in Counts 4, 6, 8, and 9 with trafficking in cocaine in violation of R.C. 2925.03(A)(1) and (C)(4)(f) in Counts 4 and 8, and R.C. 2925.03(A)(2) and (C)(4)(f) in Counts 6 and 9, all felonies of the first degree. He was charged in Counts 13 and 14 with trafficking in drugs in violation of R.C. 2925.03(A)(1) and (C)(2)(a), felonies of the fifth degree. He was charged in Counts 12 and 18 with trafficking in cocaine with a major drug offender specification in violation of R.C. 2925.03(A)(2) and (C)(4)(g), a felony in the first degree. He was charged in Counts 11 and 17 with aggravated trafficking in cocaine with a major drug offender specification, in violation of R.C. 2925.03(A)(1) and (C)(4)(g), a felony of the first degree.
{¶ 9} Appellant's other charged offenses included Counts 15 and 21, possession of criminal tools in violation of R.C. 2923.24 (A) and (C), a felony of the fifth degree, Counts 19 and 20, tampering with evidence in violation of R.C. 2921.12(A)(1) and (B), a felony of the third degree, and Count 22, engaging in a pattern of corrupt activity in violation of R.C. 2923.32(A)(1) and (B)(1), a felony of the first degree.2
{¶ 10} Prior to trial, appellant filed a motion in limine, seeking to preclude evidence of "unknown and/or as-yet unidentified people" that the prosecution indicated within the bill of particulars combined with appellant to comprise the enterprise for purposes of the corrupt activities charge. The prosecution indicated, based on the dictates of "common sense," that "someone grew the coca plants; someone produced cocaine from those coca plants; someone packaged that cocaine; someone transported that cocaine into this country; and someone sold that cocaine to the Defendant before he sold it to a confidential informant who was working with law enforcement in this case."
{¶ 11} In support of the motion in limine, appellant argued that the state failed to timely identify an expert witness to testify regarding cocaine production, growth, and trafficking, requiring exclusion at trial pursuant to Crim.R. 16(K). Appellant further argued that the state "disclosed no expert or report to support the inference of association with others unknown and unidentified who produce or distribute cocaine." Appellant argued that, without "the production of predicate facts by way of admissible evidence," the prosecutor should be precluded from arguing any "common sense" inference at trial. The trial court denied the motion.
{¶ 12} The matter proceeded to a jury trial, with testimony by the officers and agents, testimony by L.V., and numerous photographs and recordings taken during surveillance or as part of execution of the search warrants. The state also introduced testimony and exhibits identifying various quantities of cocaine and other drugs seized, as well as a shotgun and other items commonly used in the drug trade. Over appellant's objection, the state also introduced testimony regarding Mexican and South American drug cartels.
{¶ 13} DEA Special Agent Kurtis Jestes testified regarding his experience investigating drug trafficking, in Texas near the Mexican border, and in Lima, Peru. Jestes testified generally regarding the flow of drugs from Laredo, Texas, to various large cities within the United States, beginning with Dallas, the primary intermediary location, and then to Chicago, the northern distribution point, before moving on to various cities. He testified that the DEA looked for cocaine quantities over 50 to 100 kilograms.
{¶ 14} Jestes then testified regarding his experience as a DEA agent in Lima, Peru, which he identified as a source country for cocaine. Appellant's trial counsel objected to generalized testimony regarding the movement of cocaine from Peru to Toledo, Ohio, and the trial court summarily overruled the objection. Jestes then testified regarding his general knowledge of the various cartels operating within the United States. As to appellant's conduct, Jestes testified regarding the surveillance in Toledo, indicating he observed drug activity at appellant's residence and sales by appellant to L.V. Although Jestes testified in generalities regarding the movement of cocaine into the United States and Toledo, Ohio, he did not testify regarding the source of the cocaine seized from appellant's home.
{¶ 15} DEA Special Agent Jeremy Nissen also testified regarding drug cartels. He indicated he spent part of his career with the DEA posted in Columbia, "to work the cartels" and investigate money laundering organizations part of or related to the cartels. Nissen testified that his job involved following the money "from the factories where they produced and made the cocaine, all of the way into the United States." Once again, appellant's trial counsel objected, referring back to argument in the motion in limine. In response, the prosecutor characterized Nissen as a fact witness, not offered for his expert opinion. The trial court once more overruled the objection.
{¶ 16} Nissen's testimony regarding the typical journey of cocaine to cities in the United States largely mirrored Jestes’ testimony. He testified that cartels produced cocaine in Central America and shipped it to the United States through Mexico, crossing the border in Texas. From Texas, it was distributed to the major cities, and from...
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