State v. Ostrowski, Appellate Case No. 2018-000423

• Court: Court of Appeals of South Carolina
• Writing for the Court: GEATHERS, J.
• Citation: 435 S.C. 364,867 S.E.2d 269
• Parties: The STATE, Respondent, v. Jonathan Stanley OSTROWSKI, Appellant.
• Decision Date: 24 November 2021
• Docket Number: Opinion No. 5872,Appellate Case No. 2018-000423

435 S.C. 364
867 S.E.2d 269

The STATE, Respondent,
v.
Jonathan Stanley OSTROWSKI, Appellant.

Appellate Case No. 2018-000423
Opinion No. 5872

Court of Appeals of South Carolina.

Heard November 2, 2020
Filed November 24, 2021

William G. Yarborough, III, and Lauren Carole Hobbis, of William G. Yarborough III, Attorney at Law, LLC, of Greenville, for Appellant.

Attorney General Alan McCrory Wilson and Assistant Attorney General Jonathan Scott Matthews, both of Columbia; and Solicitor Kevin Scott Brackett of York, all for Respondent.

GEATHERS, J.:

435 S.C. 373

Jonathan Ostrowski (Appellant) was convicted in 2018 of: (1) trafficking methamphetamine, (2) possession of a weapon during the commission of a violent crime, (3) possession of a handgun by a person convicted of a crime of violence,¹ and (4) possession of a handgun with the serial number obliterated. He challenges his convictions on seven grounds, ranging from a motion to suppress to improper jury instructions. We reverse Appellant's convictions on methamphetamine trafficking and possession of a weapon during the commission of a violent crime;² affirm his convictions for possession of a handgun by a person convicted of a crime of violence and possession of a handgun with the serial number obliterated; and remand for a new trial on the reversed convictions.

FACTS/PROCEDURAL HISTORY

On the morning of January 25, 2017, while officers with the York County Multijurisdictional Drug Enforcement Unit ("MDEU") and Drug Enforcement Agency-Columbia ("DEA") were surveilling 162 Bailey Avenue in Rock Hill, they saw Alexandria Peters³

867 S.E.2d 274

("Peters") exit the home, where she sporadically

435 S.C. 374

stayed. Peters, who was subject to an arrest warrant for prescription drug charges, drove to a nearby bank; law enforcement arrested her there.

Authorities then requested a search warrant for 162 Bailey Avenue. Peters allegedly told officers that there was marijuana at the home.⁴ Additionally, in an affidavit in support of the request for a warrant, an officer assigned to the MDEU swore that "[o]fficers of the YCMDEU and the US Drug Enforcement Administration have been conducting an ongoing investigation of Jonathan Ostrowski in reference to narcotic violations."

A law enforcement officer later conceded that when Peters was apprehended, the officers had—in the words of Ostrowski's counsel—"no evidence that there was any type of drug distribution from [Ostrowski's] residence." Bond Judge Tanesha Lonergan authorized the warrant. Officers searched the home and found a glass pipe, packaging materials, tin foil with methamphetamine, 20 dose units of Alprazolam, a .32 caliber gun and ammunition, at least one digital scale, sandwich bags, a glass pipe with marijuana, methamphetamine, and possibly an LG cell phone.⁵ The methamphetamine was found "in the right front pants pocket from a pair of men's Columbia pants sized 38[,] which were on a shelf in a make shift closet/makeup room," according to a case summary by MDEU. "The room and shelves contained both male and female clothing."

At trial, one officer characterized the area as "in the middle of the house. Where the front door was they had kind of made an area for a closet and a dressing area." Ostrowski called it "an open area" accessible to the kitchen and living room.

Later that afternoon, the Chester County Sheriff's Office arrested Ostrowski in Great Falls. Law enforcement confiscated

435 S.C. 375

an LG cell phone from Ostrowski and obtained a warrant for the contents of the phone.

Ostrowski was indicted for trafficking more than 28 grams of methamphetamine, possession of a weapon during the commission of a violent crime, possession of a handgun by a person convicted of a crime of violence, and possession of a handgun with the serial number obliterated.

At trial, Ostrowski moved to suppress the evidence found at the Bailey Avenue residence, alleging in part that the search warrant was based on a misleading or false affidavit. The circuit court denied the motion.⁶

Later, the State attempted to have Investigator Hugh Leland Harrelson, a police officer then with the MDEU, "qualified as an expert in methamphetamine packaging, distribution, paraphernalia, and valuation." Investigator Harrelson was involved in the search of the Ostrowski residence following Peters's arrest. Ostrowski objected. The circuit court declined to qualify Investigator Harrelson; however, the circuit court ruled that Investigator Harrelson "can testify about what he saw, he can testify about the way the house was; he can testify about what he found it in, he can testify about what a pipe looks like, he can testify about what a sandwich bag is and the significance of a sandwich bag." The circuit court stated that "if we attach ... the label of an expert opinion on that it's, you know, I believe it[']s more. I agree with [defense counsel] that it is substantially more prejudicial than [ ]probative[,] so therefore I'm not gonna allow that." The circuit court later indicated: "[ ]I've allowed under Rule 701 him to offer -- I wouldn't want to call it opinion testimony. I've allowed him as a lay witness and based upon, you know, what he does for a living to identify things to say what it is, what he knows them to be."

867 S.E.2d 275

Much of Investigator Harrelson's subsequent testimony was given over objections from Ostrowski, including statements that a box of razor blades could be used "[t]o cut up drugs into smaller amounts" and that "sandwich baggies are commonly used to package drugs." Investigator Harrelson was also asked to "summarize the contents of the house and what it

435 S.C. 376

meant to you." He responded: "Clearly somebody who was using, and also selling methamphetamine, due to the methamphetamine pipes, and digital scales used to weigh out drugs, and also the sandwich baggies and tin foil used also to package drugs for sale to another individual."

The court later heard testimony from Investigator Michael Ryan King, also with the MDEU. Investigator King was never offered or qualified as an expert. Investigator King testified, frequently over objection, about the meaning of certain code words in the drug trade. For example, he testified that "clear" is a word for "methamphetamine." He also characterized some text messages sent or received by a phone linked to Ostrowski. For example, he testified about one message: "No green means no marijuana, just clear, which means I don't have any marijuana, all I have is meth."

During Investigator King's testimony, the State sought to admit several text messages to and from the phone seized from Ostrowski.⁷ Ostrowski moved to exclude the text messages as evidence about other bad acts under Rule 404(b), SCRE. The State offered two reasons for allowing the text messages to come in. First, the State noted that the relevant Code section on trafficking allowed multiple avenues of proving trafficking in addition to the weight of the drugs, and the evidence would go to intent on the other methods of trafficking. Second, the State said the evidence was relevant to prove "intent to control the disposition" of the methamphetamine as part of its case. In response, Ostrowski argued that the state's case was primarily based on possession of the statutorily sufficient amount of methamphetamine to trigger trafficking charges;⁸ that evidence Ostrowski was dealing drugs might lead the jury to conclude that he owned the methamphetamine on improper grounds; and that "any [ ]probative value that

435 S.C. 377

[the text messages] have ... would be far substantially outweighed by the danger of unfair prejudice ...." The circuit court allowed the text messages into evidence, finding that they were "clear and convincing to me at least, as well as logically relevant to the issue at hand," and that the messages were "prejudicial to the defendant" but "substantially [ ]probative to the State's case."⁹ Those admitted included:

[Ostrowski:] "Ok im in Richburg but I have them with me"

[Ostrowski:] "And I have some clear if you want it"

...

[Ostrowski:] "Need to know what u want"

[Other texter:] "Gram 1/4 smoke and any p.o. you got. what do I owe you 30"

[Ostrowski:] "Yeah u owe me 30 so u want a g of clear 1/4 of smoke any pains"

[Other texter:] "Yes Pp also"

[Ostrowski]: "How many"

[Other texter:] "10 give me a total on the money"

[Ostrowski:] "I think I only have half quarter smoke so total will be 230"

[Other texter:] "Ok I got it."

["MomaB":] "Hey u home"

[Ostrowski:] "No buti need myc**k sucked"

["MomaB":] "Well I need some dope on front

"MomaB"

867 S.E.2d 276

[Ostrowski:] "U already owe me one"

["MomaB":] "Yeah but not cash

"MomaB"

[Ostrowski:] "I know"

["MomaB":] "I need some f**king dope I get u when I [pick it] up"

435 S.C. 378

[Ostrowski:] "I need my f**king c**k sucked"¹⁰

...