State v. Milton
| Decision Date | 18 November 2013 |
| Docket Number | Case No. 2013CA00072 |
| Citation | 2013 Ohio 5155 |
| Parties | STATE OF OHIO Plaintiff-Appellee v. CHARLES HENRY MILTON Defendant-Appellant |
| Court | Ohio Court of Appeals |
JUDGES:
Hon. W. Scott Gwin, P.J.
For Defendant-Appellant
GEORGE URBAN
{¶1} Appellant Charles Henry Milton ["Milton"] appeals his convictions and sentences after a jury trial in the Stark County Court of Common Pleas for three counts of Trafficking in Cocaine, felonies of the fifth degree in violation of R.C. 2925.03(A)(1)(C)(4)(A).
{¶2} In 2010, Canton City police officer Zachary Taylor was assigned to work with the FBI Task Force to conduct undercover narcotics investigations. On November 8, 2010, he was asked to do a "buy" with a confidential informant ["C.I."] provided by the FBI. He met with the C.I. and together they placed a telephone call to a "target" who turned out to be Milton. During the telephone conversation, Officer Taylor and the C.I. were instructed to travel to a Laundromat at the corner of 9th and Dueber in Canton, Ohio for the cocaine buy. Officer Taylor prepared the C.l. for the "controlled purchase" by checking him for contraband and money.
{¶3} It was around 2:00 in the afternoon. Officer Taylor was able to observe the drug transaction. Milton was driving a blue Dodge Caliber. Milton told the C.l. to follow him to the corner of 9th and Hafer Court. At a garage directly behind 616 Dueber S.W., the buy was made. The C.I. walked over to the driver's side of Milton's car, reached in the window with his left hand and exchanged $200.00 for two loose rocks of crack cocaine. The C.l. immediately reentered the passenger seat of the truck Officer Taylor was driving and gave the cocaine to Taylor who placed it in an evidence bag. {¶4} When the buy was over, Officer Taylor checked the C.l. again to make sure that he had not pocketed any drugs. Officer Taylor turned the C.l. and the crack cocaine into Canton Detective Mike Volpe, who was also assigned to the undercover FBI task force.
{¶5} Jay Spencer of the Stark County Crime Laboratory tested the rock like substance submitted by Volpe and found it to be crack cocaine.
{¶6} In 2011, Canton City police officer Joseph Mongold was assigned to the Canton Gang Task Force working with the FBI Task Force in the investigation of illegal drugs in the Canton area. Mongold was assigned to work an undercover drug investigation of Milton along with a C.I. Officer Mongold prepared the C.l. for the "controlled purchase" by checking him for contraband and money. He then gave the C.l. $200.00 to make the drug purchase. Officer Mongold drove the C.l. to the Family Dollar Store on East Tuscarawas and Riverside, Canton, Ohio.
{¶7} Milton pulled into the Family Dollar in a gray Dodge Charger and motioned the C.I. to come over to the car. The C.I. handed Milton the money he had been given by Officer Mongold and Milton gave the C.I. the crack cocaine. The C.I. returned to the vehicle, gave Officer Mongold several loose off white rocks of crack cocaine. Officer Mongold tagged these as evidence. It was turned over to the Stark County Crime Laboratory and tested positive for crack cocaine.
{¶8} Milton sold crack cocaine on January 19, 2011 near 11th and Prospect SW., Canton, Ohio. This time, however, Officer Mongold was out of uniform andundercover. Officer Mongold personally made the buy. Officer Mongold went to Milton's vehicle. Milton rolled the window down and took a plastic bag of crack cocaine out of the center console, counted out several off white rocks and exchanged it for $200.00. Milton told Officer Mongold, -if you need anything else, give me a call."
{¶9} Officer Mongold turned over the off-white rocks to an agent with the FBI Task Force and it tested positive for crack cocaine.
{¶10} Testimony was presented that because the investigation of Milton was a long-term investigation, the moneys used for the drug buys were not photographed. So too, the buys were not recorded either by audio or visual equipment.
{¶11} Milton was secretly indicted on four counts of count of Trafficking In Cocaine, R.C. 2925.03(A)(1)(C)(4)(b), felonies of the fourth degree and two counts Trafficking In Cocaine, RC 2925.03(A)(1)(C)(4)(A), felonies of the fifth degree. However, prior to the start of trial the state dismissed three charges and amended the remaining charges to reflect Trafficking in Cocaine, felonies of the fifth degree.
{¶12} At the conclusion of the trial, the jury found Milton guilty of three counts of Trafficking in Cocaine, felonies of the fifth degree. The trial court then imposed an aggregate prison sentence of 36 months.
{¶13} Milton raises three assignments of error,
{¶14} "I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ALLOWED THE ADMISSION OF PREJUDICIAL EVIDENCE THAT DID NOT REFLECT THE CRIMES ALLEGED IN THE BILL OF PARTICULARS.
{¶15} "II. APPELLANTS CONVICTION WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
{¶16}
{¶17} In his first assignment of error, Milton claims the trial court abused its discretion when it allowed the state to admit crime laboratory reports that did not match the amount of crack cocaine alleged to have been sold by him as detailed in the bill of particulars.
{¶18} During Milton's jury trial, defense counsel objected to the admission of a Stark County Crime Laboratory Report that reflected .98 grams of crack cocaine because the Bill of Particulars furnished by the state in discovery stated .92 grams of crack cocaine. (T. at 151; 155-58). The second objection made counsel occurred when the state moved to admit a crime lab sheet that reflected .179 grams of crack cocaine. The basis for that objection was that the specific crime alleging the sale of .179 grams of crack cocaine was one of the counts that the state had dismissed prior to the start of trial. (T. at 153). The trial court overruled both objections and permitted the two crime lab sheets to be admitted as evidence and submitted to the jury.
{¶19} State v. Taylor, 39 Ohio St.3d 162, 164, 529 N.E.2d 1382(1988).
{¶20} In the case at bar, the state dismissed counts 2, 3 and 6 of the indictment prior to trial. Milton was convicted on counts 1, 4 and 5.
{¶21} Count 1 alleged that Milton sold .54 grams of crack cocaine on November 8, 2010. The state submitted the correct Stark County Laboratory sheet for Count 1.
{¶22} Count 4 alleged Milton sold 1.31 grams of crack cocaine on January 19, 2011. However, the state mistakenly submitted the Stark County Crime Laboratory report for Count 2 in support of this charge. [State's Exhibit 1A]. Count 2 had alleged that Milton sold .179 grams of crack cocaine on November 15, 2010. Count 2 had been dismissed before trial.
{¶23} Count 5 alleged that Milton sold .092 grams of crack cocaine on January 4, 2011. The state mistakenly submitted a Stark County Laboratory report showing .98 grams of crack cocaine. [State's Exhibit 3A] Apparently, the laboratory report that was admitted into evidence related to an alleged sale on January 11, 2011 for which Milton was never charged.
{¶24} It is clear that the trial court erred by allowing the state to introduce and present to the jury State's Exhibit's 1A and 3A.
{¶25} Even assuming the admission of the two laboratory reports was erroneous, we would conclude, from a review of the entire record, that such error would be "harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 87 S.Ct.824, 17 L.Ed.2d 705(1967); Harrington v. California, 395 U.S. 250, 89 S .Ct. 1726, 23 L.Ed.2d 284(1969); Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340(1972).
{¶26} The state's argument that the amount of crack cocaine Milton sold is not determinative of whether he sold or offered to sell the drugs and does not affect the penalty for conviction is somewhat disingenuous. So is the state's argument that only an "offer to sell" is needed in order to convict an individual of trafficking in cocaine. One is certainly left to wonder why, then, the state went to the effort and expense to have the substances analyzed, and further to present witnesses and documents to the jury attempting to prove the substance was in fact cocaine, if the state is confident that such evidence is unnecessary and would not be persuasive to the jury.
{¶27} In any event, we find from a review of the record in this particular case that the state did provide all six of the laboratory reports in support of the six charges originally contained in the Indictment to the defense in advance of trial. Reports in support of count four and count five accurately reflect the correct amounts and that the substance were in fact crack cocaine.
{¶28} We must be mindful of the " * * * elementary proposition of law that an...
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