State v. Shuttlesworth

• Decision Date: 27 July 1995
• Docket Number: No. 458,458
• Citation: 661 N.E.2d 817,104 Ohio App.3d 281
• Parties: The STATE of Ohio, Appellee, v. SHUTTLESWORTH, Appellant.
• Court: Ohio Court of Appeals

Page 281

104 Ohio App.3d 281

661 N.E.2d 817

The STATE of Ohio, Appellee, v. SHUTTLESWORTH, Appellant.

No. 458.

Court of Appeals of Ohio Seventh District, Harrison County.

Decided July 27, 1995.

Andrew Hutyera, Prosecuting

Attorney, Cadiz, for appellee.

David H. Bodiker, Ohio Public Defender, Gloria Eyerly and Thomas R. Wetterer, Jr., Asst. State Public Defenders, Columbus, for appellant.

DONOFRIO, Judge.

On January 22, 1992, defendant-appellant, Trenton L. Shuttlesworth, was indicted by the Harrison County Grand Jury on one count of aggravated trafficking in drugs, with a previous felony drug abuse conviction specification, a violation of R.C. 2925.03(A)(1), and on one count of drug abuse, a violation of R.C. 2925.11(A). Appellant pled no contest to the drug abuse charge in Count 2 of the indictment and had a jury trial on the remaining count.

The evidence at trial disclosed that at approximately midnight on December 12, 1991, Officer James Manley of the Cadiz Police Department observed an automobile, which was known to belong to a suspected drug dealer, parked in the local VFW parking lot. The automobile in question was a yellow Ford Escort with a black "bra." While observing the car, Officer Manley saw someone leave the Escort and walk to a nearby pay phone. After placing a call, the person returned to the car.

Shortly thereafter Officer Manley saw a Monte Carlo automobile arrive and park at a nearby church parking lot. Officer Manley observed an occupant of the Monte Carlo step out of that car and walk towards the Escort. The occupant of the Escort and the occupant from the Monte Carlo conversed for approximately two to three minutes and then exchanged something through the window of the Escort. At this point, Officer Manley radioed for backup to join in the observation of the automobiles.

After the transaction, the Monte Carlo departed and was followed by Officer Manley to the rear of a bowling alley. Manley stopped the car and questioned the occupants. At this time, Manley observed a glass pipe in the car, commonly used to smoke crack. Lenny House, the driver of the Monte Carlo, admitted to Officer Manley that he had recently been smoking crack and had bought some from the man in the Escort.

Subsequently, Manley and three other officers approached the yellow Escort in the VFW parking lot and requested appellant, who was the driver of the Escort, to get out of the automobile. Appellant appeared to obey the directions of the officers but upon getting out of the car began to run away. The police officers pursued him and during the foot chase observed appellant throw down a baggie, which was later proven to contain crack cocaine.

After the jury trial, appellant was found guilty of aggravated trafficking in drugs as charged in Count 1 of the indictment and was sentenced to a prison term of five to fifteen years, which term was to run consecutively with his sentence on the drug abuse charge. This appeal follows.

In appellant's first assignment of error, he argues that the trial court erred in accepting his no-contest plea to Count 2 of the indictment without advising appellant of the potential maximum sentence.

In State v. Johnson (1988), 40 Ohio St.3d 130, 532 N.E.2d 1295, the Ohio Supreme Court held that there is no constitutional right to be advised of the maximum possible penalty for a crime before a guilty plea can be accepted. In doing so the court relied upon State v. Stewart (1977), 51 Ohio St.2d 86, 5 O.O.3d 52, 364 N.E.2d 1163.

In order to be constitutionally valid, a plea of no contest must be entered knowingly, intelligently, and voluntarily. These are the requirements set out in Crim.R. 11(C). If a defendant does not knowingly, intelligently, or voluntarily enter his plea or does not understand the consequences of his plea, it is a violation of due process to accept his plea, and the plea is therefore void. State v. Buchanan (1974), 43 Ohio App.2d 93, 72 O.O.2d 307, 334 N.E.2d 503.

In the instant case, appellant was represented by counsel, executed a written waiver of jury trial and was examined by the trial court to ensure that the plea was knowing and voluntary. There is no evidence in the record to support appellant's claim that his plea was not made knowingly, intelligently and voluntarily.

The appellant's first assignment of error is without merit.

In appellant's second assignment of error, he argues that:

"The trial court erroneously denied defendant's motion for acquittal pursuant to Criminal Rule 29; therefore, defendant's conviction was obtained in violation of his constitutional rights to a fair trial and due process under the Fourteenth Amendment to the United States Constitution and Article I, Section 16 of the Ohio Constitution since the evidence was insufficient to support a conviction."

Appellant makes a number of separate arguments in support of the second assignment of error. In the first, appellant argues that the indictment was faulty.

Count 1 of the indictment issued against appellant by the Harrison County Grand Jury read as follows:

"AGGRAVATED TRAFFICKING IN DRUGS, in that he did sell a controlled substance in an amount less than the minimum bulk amount, the offender having been previously convicted of a felony drug abuse offense, a felony of the second degree, contrary to and in violation of Section 2925.03(A)(1) of the Ohio Revised Code and against the peace and dignity of the State of Ohio."

Article I, Section 10, of the Ohio Constitution guarantees the accused that the essential facts constituting the offense for which he is tried will be found in the grand jury's indictment. Harris v. State (1932), 125 Ohio St. 257, 264, 181 N.E. 104, 106. In State v. Headley (1983), 6 Ohio St.3d 475, 6 OBR 526, 453 N.E.2d 716, the Ohio Supreme Court found an indictment similar to appellant's to be defective because the controlled substance in question, to wit, cocaine, a substance included in Schedule II as defined by R.C. 2925.03, was not included in the indictment. The type of controlled substance involved in the crime alleged is more than a detail to be enumerated. Headley makes it clear at 479, 6 OBR at 530, 453 N.E.2d at 720, that:

"The type of controlled substance involved constitutes an essential element of the crime which must be included in the indictment. The omission of that information cannot be cured by amendment, as to do so would change the very identity of the offense charged."

In the instant case, the indictment charged appellant with the offense of aggravated trafficking but neglected to state the controlled substance involved. This was a fatal defect which was not curable by amendment. Appellant had a constitutional right to have all of the elements of his crime stated in the indictment. They were not. This portion of appellant's second assignment of error is well taken.

Appellant also claims in his second assignment of error that appellee failed to prove venue beyond a reasonable doubt and that the trial court erred by not noticing this defect in the state's case and by not granting appellant's Crim.R. 29 motion for acquittal.

We agree with appellant that at no point did appellee precisely establish that the crime with which appellant was charged had, in fact, occurred in Harrison County, Ohio. However, express evidence is not necessary to establish venue.

"Express evidence to establish venue is not necessary, if, from all of the facts and circumstances in the case, it is established beyond a reasonable doubt that the crime was committed in the county and state named in the indictment." State v. Khong (1985), 29 Ohio App.3d 19, 29 OBR 20, 502 N.E.2d 682, paragraph five of the syllabus.

The Supreme Court of Ohio has permitted venue to be established by the totality of the facts and circumstances of the case. See State v. Headley, supra. Additionally, the trial court has broad discretion...