State v. Pilgrim
| Decision Date | 08 October 2009 |
| Docket Number | No. 08AP-993.,08AP-993. |
| Citation | 2009 Ohio 5357,922 N.E.2d 248,184 Ohio App.3d 675 |
| Parties | The STATE of Ohio, Appellee, v. PILGRIM, Appellant. |
| Court | Ohio Court of Appeals |
Ron O'Brien, Franklin County Prosecuting Attorney, and John H. Cousins IV, Assistant Prosecuting Attorney, for appellee.
Scott & Nemann Co., L.P.A. and Shannon S. Leis, Columbus; and Torrance C. Pilgrim, pro se.
{¶ 1} Defendant-appellant, Torrance C. Pilgrim, appeals from a judgment of the Franklin County Court of Common Pleas finding him guilty, pursuant to a jury verdict, of one count of possession of crack cocaine in violation of R.C. 2925.11, a first-degree felony, and sentencing him to serve a four-year prison term and pay a mandatory fine of $10,000. Because (1) the trial court did not abuse its discretion in denying defendant's motion to suppress evidence of the crack cocaine, (2) legally sufficient evidence and the manifest weight of the evidence support defendant's conviction, (3) defendant's right to speedy trial was not violated, (4) defendant was not denied the effective assistance of counsel, (5) the prosecution and the trial court did not engage in conduct prejudicing defendant or denying him a fair trial, and (6) the trial court did not err in imposing a $10,000 fine on defendant, we affirm the trial court's judgment.
{¶ 2} By indictment filed April 11, 2008, defendant was charged with one count of possession of crack cocaine in an amount equal to or over 25 grams but less than 100 grams, a first-degree felony in violation of R.C. 2925.11. Following resolution of the parties' motions and completed discovery, a jury trial commenced on October 6, 2008.
{¶ 3} According to the state's evidence, Columbus police officers were dispatched at approximately 9:30 p.m. on September 30, 2007, to the West of Eastland Apartments complex in Columbus in response to a "gun run," a report that someone had a gun. The apartment complex, which consists of several single-story "row" apartment buildings, has a higher than average amount of drug, gang, and firearm activity. The police dispatch described the suspect as an African-American male wearing a white tank top, dark pants, and a yellow baseball hat.
{¶ 4} Moments after hearing the dispatch, Columbus Police Officer Timothy Shepard was the first of four police officers to arrive at the apartment complex. Shepard saw defendant emerging from behind some bushes in front of an apartment, and upon observing that he matched the description of the suspect, directed defendant to come to the police cruiser. Officer Shepard conducted a protective pat-down search of defendant and then arrested him when the officer discovered a baggie containing 4.8 grams of crack cocaine in defendant's pants pocket and a marijuana cigarette tucked behind his right ear. Defendant had $654 in cash on him at the time of his arrest.
{¶ 5} Not finding a gun on defendant during the pat-down search, Officer Shepard directed two other police officers to search for a firearm in the area behind the bushes from which defendant emerged when Shepard first arrived at the scene. The officers did not find a firearm during their search, but on the ground behind the bushes, they discovered individually wrapped baggies of crack cocaine in two pill bottles and a separate, large rock of crack cocaine. The crack cocaine found on the ground had a combined weight of 22.8 grams.
{¶ 6} According to Officer Burkey, the contraband appeared to have been placed on the ground recently, because the pill bottles were clean and rested on top of, rather than underneath, any leaves, spider webs or other debris. He believed the contraband was placed deliberately, not dropped casually, because the pill bottles were carefully grouped together on the ground in a corner behind the bushes in a location where people usually would not be present. None of the police officers saw anyone other than defendant in the vicinity while they were at the scene, although Officer Burkey acknowledged that other people could have been in the area.
{¶ 7} When the officers brought the contraband out from behind the bushes, defendant began sweating profusely and collapsed to the ground; the officers summoned a medical squad, who examined defendant and determined that he did not need medical assistance. Defendant admitted to the officers that the drugs found during the pat-down search were his, but he denied that the drugs found behind the bushes belonged to him.
{¶ 8} In his testimony at trial, defendant confessed that he had been a crack addict since 2002 and acknowledged that he was "high" at the time of his arrest because he had been smoking marijuana laced with crack cocaine. Defendant conceded that he possessed the 4.8 grams of crack cocaine found in his pocket during the pat-down search, but he again denied knowledge or possession of the 22.8 grams of crack cocaine found behind the bushes outside his apartment. According to defendant, he was in the process of moving into a new apartment at West of Eastland Apartments on the evening of September 30, 2007, when a jealous "lady friend" damaged the windows of the apartment on seeing him there with another woman. Defendant testified that he was standing in the bushes outside his apartment when Officer Shepard arrived at the scene, because he was looking at the damage to the windows. He denied seeing the drugs or putting them on the ground while he was standing there. Defendant explained that he had the $654 that evening because he was going to pay his rent, which was due the next day.
{¶ 9} After two days of testimony, the jury found defendant guilty as charged in the indictment. On October 10, 2008, the trial court sentenced defendant to four years in prison, with 163 days of jail-time credit, and imposed a mandatory fine of $10,000. The trial court journalized its sentencing decision in a judgment entered October 17, 2008, from which defendant timely appealed.
{¶ 10} On appeal, six errors are assigned in appellate counsel's brief:
Assignment of Error One
The trial court abused its discretion by denying appellant's motion to suppress evidence.
Appellant's conviction is based upon circumstantial evidence that is impermissibly based on inference upon inference.
The record contains insufficient evidence to support appellant's conviction for possession of a controlled substance.
Appellant's conviction is against the manifest weight of the evidence.
The trial court abused its discretion by denying appellant's motion to dismiss for speedy trial in violation [sic].
Appellant was denied his due process right to a fair trial and effective assistance of counsel.
{¶ 11} Four additional errors are assigned in a supplemental brief defendant filed pro se:
Supplemental Assignment of Error One
Appellant's right to a speedy trial as guaranteed by RC § 2945.71 et seq., the Sixth and Fourteenth Amendments of the United States Constitution, and Article 1, Section § 10 Ohio Constitution was violated.
The prosecutor's pattern of misconduct throughout the proceedings in case No. 08 CR 2691 and at trial denied appellant/defendant his rights under O.R.C. § 2945.71 et seq., and the Sixth and Fourteenth Amendments of the United States Constitution, and Article I, Section § 10 of the Ohio Constitution and deprived appellant of a fair trial.
The trial court plainly erred where it failed to provide appellant a speedy trial; allowed trial to proceed on a charge not included in the indictment; failed to make a journal entry prior to the tolling of time for speedy trial; failed to suppress evidence; denied use of police reports by jury during deliberations; advised jurors without appellant being present; and assisted the prosecutor in swaying the jurors.
The fine imposed at sentence and the forced collection thereof infringes upon appellant's rights under the Eighth and Fourteenth Amendments to the United States Constitution, R.C. § 2929.18(B)(1), R.C. 2947.14, and related Sections of the Ohio Constitution.
{¶ 12} The first assignment of error that defendant's appellate counsel presented contends that the trial court abused its discretion in denying defendant's motion to suppress evidence of the crack cocaine.
{¶ 13} "[A]ppellate review of a trial court's decision regarding a motion to suppress evidence involves mixed questions of law and fact." State v. Vest (May 29, 2001), 4th Dist. No. 00CA2576, 2001 WL 605217. Thus, an appellate court's standard of review of the trial court's decision denying the motion to suppress is two-fold. State v. Reedy, 10th Dist. No. 05AP-501, 2006-Ohio-1212, 2006 WL 648861, ¶ 5, citing State v. Lloyd (1998), 126 Ohio App.3d 95, 100-101, 709 N.E.2d 913. Because the trial court is in the best position to weigh the credibility of the witnesses, "we must uphold the trial court's findings of fact if they are supported by competent, credible evidence." Id., citing State v. Klein (1991), 73 Ohio App.3d 486, 488, 597 N.E.2d 1141. We nonetheless must independently determine, as a matter of law, whether the facts meet the applicable legal standard. Id., citing State v. Claytor (1993), 85 Ohio App.3d 623, 627, 620 N.E.2d 906. The state bears the burden of establishing the validity of a warrantless search. Xenia v. Wallace (1988), 37 Ohio St.3d 216, 218, 524 N.E.2d 889, citing State v. Kessler (1978), 53 Ohio St.2d 204, 207, 7 O.O.3d 375, 373 N.E.2d 1252.
{¶ 14} Challenging the lawfulness of Officer Shepard's investigatory stop, defendant contends on appeal that "the state did not demonstrate at the suppression hearing that the facts...
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