State v. Holman

Decision Date09 April 2018
Docket NumberCase No. 2017CA00114
Citation2018 Ohio 1373
PartiesSTATE OF OHIO Plaintiff-Appellee v. ADAM M. HOLMAN Defendant-Appellant
CourtOhio Court of Appeals

JUDGES: Hon. John W. Wise, P.J. Hon. W. Scott Gwin, J. Hon. Craig R. Baldwin, J.

OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Stark County Court of Common Pleas, Case No.2017CR0417(A)

JUDGMENT: Affirmed in part; vacated in part

APPEARANCES:

For Plaintiff-Appellee

JOHN D. FERRERO

STARK COUNTY PROSECUTOR

BY: RONALD MARK CALDWELL

110 Central Plaza South

Canton, OH 44702

For Defendant-Appellant

AARON KOVALCHIK

116 Cleveland Avenue N.W.

Suite 808

Canton, OH 44702

Gwin, J.,

{¶1} Appellant Adam M. Holman ["Holman"] appeals his convictions and sentences after a jury trial in the Stark County Court of Common Pleas.

Facts and Procedural History

{¶2} On February 27, 2017, Massillon Police Officer Jeremy Moody was on routine patrol around 4:30 p.m. near the Viaduct on Lincoln Way in Massillon when he spotted a speeding car driven by Holman. A check of his radar device confirmed his suspicion that Holman's car was driving faster than the speed limit. As a result, Moody made a traffic stop of Holman's car. The car was not registered to Holman. As Moody approached the vehicle, Holman admitted to Moody that he did not have a license so he gave the officer his name and social security number. T. at 110. Christopher Predojev was seated in the passenger seat of the car. Doing routine background checks on both people inside the car, Officer Moody was informed that Holman's driver's license was under a financial responsibility law suspension ["FRA suspension"], and that Predojev had an active warrant for his arrest. T. at 110; 115.

{¶3} On cross-examination, Officer Moody was questioned about the FRA suspension. T. at 115-116. He was asked how did he verify the suspension. Moody testified that it was through the dispatch center. He further testified that he was not 100% sure of the nature of the suspension, but that he noted it on the ticket he gave Holman. T. at 116-117. Officer Moody testified that an FRA suspension "usually comes with a failure to provide proof of insurance..." T. at 115. In addition, dispatch had told Moody that the owner of the stopped car had prior convictions for the manufacturing of drugs. T. at 119.

{¶4} During the traffic stop, other police officers arrived on the scene and took Predojev into custody. In addition, Officer Moody told Holman that his car would have to be towed since he did not have a valid driver's license. Holman therefore exited his car, at which time Moody ask Holman for his consent to pat him down. Holman consented to a search of his person. T. at 111. Moody then patted Holman down and found in one of Holman's pants pocket a Marlboro Red cigarette filter, a pack of Marlboro Red cigarettes, and a Coca-Cola bottle cap with a hole drilled in the center of it. Based upon his field training and experience, Officer Moody recognized the bottle cap as a device often used in the making of methamphetamine. Both Holman and Predojev were arrested. Holman was initially charged with driving under suspension, and Predojev arrest was based on the active arrest warrant. A pat-down search incident to the arrest of Predojev uncovered a pack of little cigar-like cigarettes. T. at 129. Officer Moody further testified that Holman did not have any drugs on him when he conducted the pat down search.

{¶5} Because of Holman's arrest, his car was to be towed pursuant to department policy. As part of the towing process, standard policy requires an inventory search be done of the vehicle. Massillon Police Officer Lieutenant Michael Maier1, who had responded as back up for this traffic stop, conducted this inventory search. Between the center console and the front passenger seat, Maier found a Marlboro Red cigarette pack. Instead of finding cigarettes inside this pack, however, Maier found a folded-up white coffee filter. Inside this coffee filter was a white powdery substance resembling crystal methamphetamine. This substance was later tested by Jennifer Creed of the Stark County Crime Lab, and was determined to be 1.8 grams of methamphetamine.

{¶6} Christopher Predojev testified that the methamphetamine was his and his alone, and that Holman did not know of the methamphetamine in the Marlboro Red cigarette pack. He claimed that he did not tell the police at the time that the methamphetamine was his because he was scared. He further testified that getting into the car that day with Holman was the worst decision he had made in his life. Predojev was a 49 year old who had never been in serious trouble before this incident.

{¶7} On rebuttal, Massillon Police Officer Jerrell Vincent testified about the background information he had when he responded to the scene. Vincent testified that Holman had been stopped for speeding, doing 44 mph in a 25-mph zone, that Holman was under a FRA suspension and that Predojev had an active arrest warrant, that the car was inventoried as part of the towing process, and that the cigarette pack with methamphetamine was found in the car between the console and the passenger seat. T. 183- 186. As part of the booking procedure for both Holman and Predojev, Vincent interviewed the men. During this interview process, Predojev told Vincent that half of the meth found in the car was his. T. 186-187.

{¶8} Prior to the start of Holman 's jury trial, the trial court went on the record and confirmed that Holman was turning down a plea offer where he would serve 90 to 120 days of incarceration and then enter SRCCC2. (T. at 7). Holman confirmed that he was indeed turning down that offer. T. at 7.

{¶9} The jury verdict found Holman guilty of the charged offenses. Holman was sentenced to an aggregate prison term of eleven months.

Assignments of Error

{¶10} Holman raises three assignments of error,

{¶11} "I. APPELLANT'S SIXTH AMENDMENT RIGHT TO CONFRONT WITNESSES AGAINST HIM WAS VIOLATED WHEN THE TRIAL COURT PERMITTED THE ADMISSION OF HEARSAY STATEMENTS.

{¶12} "II. APPELLANT'S CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.

{¶13} "III. APPELLANT'S PRISON SENTENCE WAS AN UNCONSTITUTIONAL TRIAL PENALTY."

I.

{¶14} In his first assignment of error, Holman contends the trial court allowed hearsay testimony that connected him to the crime of Driving under Suspension. [Appellant's Brief at 8]. The focus of his constitutional challenge is the admission of the testimony of Massillon Police Officer Jerrell Vincent that he received from police dispatch information that Holman was driving under an FRA suspension. T. 184-185. According to Holman, this alleged error violated his rights to confrontation and due process. Holman objected to the admission of this testimony, which the court overruled on the basis that the background information was not being offered to prove the truth of the matter asserted, but was instead being offered to explain Vincent's role and what he did in this investigation.

STANDARD OF APPELLATE REVIEW.

{¶15} "[A] trial court is vested with broad discretion in determining the admissibility of evidence in any particular case, so long as such discretion is exercised in line with the rules of procedure and evidence." Rigby v. Lake Cty., 58 Ohio St.3d 269, 271, 569 N.E.2d 1056 (1991). "Ordinarily, we review a trial court's hearsay rulings for an abuse of discretion. State v. Hymore, 9 Ohio St.2d 122, 128, 224 N.E.2d 126 (1967). However, we review de novo evidentiary rulings that implicate the Confrontation Clause. United States v. Henderson, 626 F.3d 326, 333 (6th Cir. 2010)." State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶97.

ISSUES FOR APPEAL

A. Whether the trial court erred as a matter of law in admitting the testimony of Officer Vincent concerning Holman's driver license suspension.

B. Whether the admission of Officer Vincent's testimony concerning Holman's driver license affected Holman's "substantial rights."

{¶16} Holman's objection centered upon the testimony elicited from the state's rebuttal witness. However, Officer Moody had already testified that the dispatch center had told him that Holman did not have a valid driver's license due to a FRA suspension. Holman did not object to Officer Moody's testimony on this point. On cross-examination, Officer Moody was questioned by Holman's counsel about the FRA suspension. T. at 116. He was asked how did he verify the suspension, and Moody testified that it was through the dispatch center. He further testified that he was not 100% sure of the nature of the suspension, but that he noted it on the ticket he gave Holman. T. at 116-117.

{¶17} We note that any error will be deemed harmless if it did not affect the accused's "substantial rights." Before constitutional error can be considered harmless, we must be able to "declare a belief that it was harmless beyond a reasonable doubt." United States v. Chapman, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705(1967). Where there is no reasonable possibility that unlawful testimony contributed to a conviction, the error is harmless and therefore will not be grounds for reversal. State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶78, citing Chapman; State v. Lytle, 48 Ohio St.2d 391, 358 N.E.2d 623(1976), paragraph three of the syllabus, vacated in part on other grounds Lytle v. Ohio, 438 U.S. 910, 98 S.Ct. 3135, 57 L.Ed.2d 1154(1978). See also, State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, 984 N.E.2d 948, ¶177.

{¶18} Assuming arguendo the trial court had excluded Officer Vincent's testimony, the jury had evidence from Officer Moody that was not objected to that Holman's driver's license was under suspension. Thus, even if error occurred in the admission of the statements by Officer Vincent, it was harmless beyond a reasonable doubt because it was merely cumulative to the testimony that Homan's driver's license was under suspension that was not objected to...

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