State v. Price

• Decision Date: 02 May 2019
• Docket Number: No. 107096,107096
• Citation: 135 N.E.3d 1093,2019 Ohio 1642
• Parties: STATE of Ohio, Plaintiff-Appellee v. Mark A. PRICE, Defendant-Appellant
• Court: Ohio Court of Appeals

135 N.E.3d 1093

2019 Ohio 1642

STATE of Ohio, Plaintiff-Appellee

v.Mark A. PRICE, Defendant-Appellant

No. 107096

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

RELEASED AND JOURNALIZED: May 2, 2019

Susan J. Moran, 55 Public Square, Suite 1616, Cleveland, Ohio 44113, ATTORNEY FOR APPELLANT.

Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Jeffrey Schnatter, Katherine Mullin, Assistant Prosecuting Attorneys, Justice Center, 8th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE.

BEFORE: Boyle, P.J., Laster Mays, J., and Celebrezze, J.

JOURNAL ENTRY AND OPINION

MARY J. BOYLE, P.J.:

{¶1} Defendant-appellant, Mark Price, appeals his convictions. He raises six assignments of error for our review:

1. The trial court erred by denying appellant's motion for acquittal pursuant to Crim.R. 29 when the state failed to submit sufficient evidence for the essential elements of the crimes charged denying the appellant due process.

2. Appellant's convictions are against the manifest weight of the evidence.

3. The trial court committed prejudicial error and/or plain error in violation of the Double Jeopardy Clause of the United States Constitution and Section 10, Article I of the Ohio Constitution when it failed to merge the two counts of corrupting another with drugs as they were allied offenses of similar import and were committed in a singular act with the same animus.

4. The trial court erred in imposing consecutive sentences as such a sentence was not supported by the record.

5. The trial court erred in failing to provide the [ Burrage v. United States , 571 U.S. 204, 134 S.Ct. 881, 187 L.Ed.2d 715 (2014) ] instruction regarding proximate cause which resulted in the denial of due process and wrongful conviction of the appellant.

6. The trial court erred in failing to allow the appellant to present exculpatory evidence as a defense to corrupting another with drugs, violating his right to a fair trial and due process.

{¶2} Finding merit to Price's third assignment of error, we affirm in part, reverse in part, and remand for the trial court to merge Price's convictions for corrupting another with drugs and allow the state to elect which of the convictions it wishes to pursue at sentencing.

I. Procedural History and Factual Background

{¶3} On September 19, 2016, the Cuyahoga County Grand Jury indicted Price on 22 counts. The charges stemmed from the victim dying of an alleged overdose on August 2, 2016, and separate alleged drug activities on August 4, 2016. Those charges were as follows:

August 2, 2016: One count of involuntary manslaughter, in violation of R.C. 2903.04(A) ; two counts of corrupting another with drugs, in violation of R.C. 2925.02(A)(3) (one for heroin and one for fentanyl); two counts of trafficking, in violation of R.C. 2925.03(A)(1) (one for heroin and one for fentanyl); two counts of trafficking, in violation of R.C. 2925.03(A)(2) (one for heroin and one for fentanyl); and two counts of drug possession, in violation of R.C. 2925.11(A) (one for heroin and one for fentanyl).

August 4, 2016: Three counts of trafficking, in violation of R.C. 2925.03(A)(1) (two heroin and one for fentanyl); four counts of trafficking, in violation of R.C. 2925.03(A)(2) (two for heroin and two for fentanyl); four counts of drug possession, in violation of R.C. 2925.11(A) (two for heroin and two for fentanyl); one count of tampering with evidence, in violation of R.C. 2921.12(A)(1) ; and one count of possessing criminal tools, in violation of R.C. 2923.24(A).

All of the August 2 charges (except drug possession) contained a school yard specification. Except for the count for tampering with evidence, all of the counts had forfeiture specifications. Price pleaded not guilty, and the case proceeded to a jury trial in February 2018.

{¶4} On August 2, 2016, police officers responded to the victim's apartment for a report of a deceased male. After securing the scene, police collected evidence from the victim's apartment, including "a white pinkish powder residue and * * * a straw, which is commonly used for drug use[,]" six pills near the victim's body, an ATM receipt from 1:00 a.m. that morning showing that $ 220 was withdrawn from the victim's account, and the victim's cell phone. Police also found what appeared to be heroin residue on the victim's nightstand, but did not collect that residue.

{¶5} When searching through the victim's phone, police found text messages to and from a contact identified as "T" occurring around 3:00 a.m. on August 2 that were indicative of drug activity. Detective Amelio Leanza testified that he understood the conversation as meaning that "[the victim's] buying the drugs, but he's going to supply this person T with a portion of it for arranging it." Detective Leanza said it also showed that "the person that's bringing the drugs is about to pull up * * * [and does not] want to meet anybody else" and explained that "it's common for a dealer to maybe only trust a certain clientele of theirs and not so much a person they've never met." The call log from the victim's cell phone also showed calls to "T" around 2:00 a.m. that morning.

{¶6} Police ran "T's" number through the department's computer system and found that it was associated with Tierra Fort, who lived in the same apartment complex as the victim. Police also found "that there were some prior disturbance calls to [the apartment complex] between [the victim] and Miss Fort over some civil matter[s]," giving police a possible connection between Fort and the victim.

{¶7} Police subsequently obtained an arrest warrant for Fort and a search warrant for her address. After arresting Fort, police searched her apartment, finding a digital scale, "some crushed up powder that was similar in color [to the] pink-colored substance that [police] found in [the victim's apartment]," a plastic straw with residue, a "rock of that pink- and tan-colored substance[,]" and Fort's cell phone.

{¶8} During a police interview, Fort allowed police to search her cell phone and identified herself as the contact labeled "T" in the victim's phone. Police found the same text conversation that they found on the victim's cell phone, and Fort said that she had that conversation with the victim because he "wanted heroin and he was only able to get it through her" and that she "middle[d]" the sale to the victim.

{¶9} Detective Leanza explained that "middling a deal" meant a person who "typically * * * [has] a contact * * * that they can get heroin from versus the other person who cannot or maybe their supplier had been locked up or arrested, so they'll go through the other person because they know that this other person has a contact." He also stated that "it's very common for that other person to not want to give up their contacts because they get to get a piece of heroin for arranging a sale."

{¶10} Detective Leanza stated that he found another conversation on Fort's phone with a different phone number that he believed was indicative of drug activity and that Fort identified the person associated with that phone number as "Bam." Fort told police that she texted Bam on August 2 around 1:00 a.m. to obtain drugs for the victim. Fort's phone's call log also showed calls between Fort and Bam around that time.

{¶11} Because Fort did not know Bam's real name and a search of the police department's computer system did not produce any results for the phone number associated with Bam, police ran the number through Facebook and were able to identify Bam as Price. Police showed Fort a photo of Price from Facebook, and Fort confirmed that Price was Bam.

{¶12} During trial, Fort testified as to the events leading up to the victim's death. She said that after the victim contacted her requesting drugs and after she texted Price, Price arrived at her apartment around 3:00 a.m. and that he gave her a gram of heroin in a baggie. In exchange, Fort gave Price $ 100 that the victim had given to her. She then called the victim to come to her apartment, where he saw Price and they said "hello" to each other in her living room. She gave the victim the drugs, and before he left, the victim gave her about "$ 20 worth" of the heroin and she put that "rock" in a dish next to her bedroom.

{¶13} Detective Leanza stated that at that point, he decided to arrange controlled phone calls between Fort and Price to set up a drug purchase. Fort made those calls in his presence, which he recorded. Detective Leanza explained that Fort requested drugs from Price and that Fort and Price agreed to meet at the "RTA station on West 117th and Madison[.]"

{¶14} As part of their strategy, police arranged a "buy/point out," in which a sale is arranged, but no transaction occurs, and the "cooperating party points out [the drug dealer]" and police arrest that person. Fort was stationed with officers in an unmarked vehicle in the parking lot of the RTA station and other officers were stationed in additional unmarked vehicles in the parking lot.

{¶15} Detective Leanza testified that a blue Chrysler with a male driver pulled into the parking lot with Price in the passenger seat and that Fort identified Price. Once the car "pulled into a parking space[,]" officers surrounded the vehicle and ordered both occupants out. Detective Leanza described the arrests as follows during trial:

We're in undercover vehicles, obviously. We're not in marked vehicles. I pulled behind the vehicle. So we're coming up from the rear of this blue Chrysler. At that point, we're ordering people inside, Hands up, you know, Police, Hands Up. We were wearing our vests that say in large white letters Police on the front, Police on the back. I went to the passenger side because that's where I knew Mr. Price was. He did have his hands up. I opened the door. [H]is phone was on his lap. I removed him from the car and he was handcuffed.

I believe I may have asked him his name or something like that, but he was not saying a word. His mouth didn't open. He wasn't

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