State v. Smith, 20CA3934

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtPETER B. ABELE, JUDGE
Citation2022 Ohio 371
Decision Date02 February 2022
Docket Number20CA3934
PartiesSTATE OF OHIO, Plaintiff-Appellee, v. HENRY DEANDRE SMITH, Defendant-Appellant.

2022-Ohio-371

STATE OF OHIO, Plaintiff-Appellee,
v.

HENRY DEANDRE SMITH, Defendant-Appellant.

No. 20CA3934

Court of Appeals of Ohio, Fourth District, Scioto

February 2, 2022


CRIMINAL APPEAL FROM COMMON PLEAS COURT

James H. Banks, Dublin, Ohio, for appellant. [1]

Shane A. Tieman, Scioto County Prosecuting Attorney, and Jay Willis, Scioto County Assistant Prosecuting Attorney, Portsmouth, Ohio, for appellee.

DECISION AND JUDGMENT ENTRY

PETER B. ABELE, JUDGE

{¶1} This is an appeal from a Scioto County Common Pleas Court judgment of conviction and sentence. A jury found Henry Deandre Smith, defendant below and appellant herein, guilty of:

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(1) trafficking in heroin in violation of R.C. 2925.03(A)(2);[2] (2) possessing heroin in violation of R.C. 2925.11(A); and (3) possessing criminal tools in violation of R.C. 2923.24(A). After the trial court merged the possession offense with the trafficking offense, the court sentenced appellant to serve an eight-year prison term. The court also sentenced appellant to serve 180 days in jail for possessing criminal tools, but ordered that sentence to be served concurrently with the trafficking offense.

{¶2} Appellant assigns the following errors for review:

FIRST ASSIGNMENT OF ERROR
"THE TRIAL COURT ERRED IN ALLOWING THE IMPROPER INTRODUCTION OF EVIDENCE."
SECOND ASSIGNMENT OF ERROR:
"THE DEFENDANT'S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE."
THIRD ASSIGNMENT OF ERROR:
"DEFENDANT SMITH'S CONVICTIONS ARE CONTRADICTORY ACCORDING TO THE JURY VERDICTS SUCH TO REQUIRE REVERSAL."
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FOURTH ASSIGNMENT OF ERROR:
"THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL SUCH THAT HE IS ENTITLED TO A NEW TRIAL."
FIFTH ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED IN SENTENCING THE DEFENDANT."

{¶3} During the late-night hours of August 10, 2018, Ohio State Highway Patrol Trooper Nick Lewis stopped a black sport-utility vehicle for following a vehicle too closely, for making an unexpected lane change, and for driving 40 miles per hour in a 55 mile-per-hour speed zone. During the ensuing traffic stop, Lewis and another trooper discovered approximately 57 grams of heroin stuffed inside the lining of the backside of the driver's seat. The troopers questioned the three occupants, Carvion McKee, Ernest Whitehead, and appellant, and all stated they did not know that the vehicle contained heroin. The troopers then allowed the occupants to leave and advised them that the prosecutor's office likely would present the matter to a grand jury.

{¶4} On August 22, 2019, a Scioto County Grand Jury returned indictments that charged appellant, Whitehead, and McKee with trafficking in heroin in violation of R.C. 2925.03(A)(1), possessing heroin in violation of R.C.

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2925.11(A), and possessing criminal tools in violation of R.C. 2923.24(A). Appellant and Whitehead entered not guilty pleas.[3]

{¶5} On April 23, 2020, appellant filed a motion to suppress the evidence discovered during the traffic stop and vehicle search. Appellant asserted that the trooper lacked a lawful basis to stop and search the vehicle.

{¶6} At the July 23, 2020 hearing, appellant's counsel, Attorney Banks, indicated that the parties had agreed to resolve the case, but that appellant recently changed his mind. Apparently, the state offered to reduce the first-degree felony offense, to recommend a two-year prison term, and agree not to object to judicial release. The trial court questioned appellant regarding his decision to reject the plea offer and appellant indicated that he did not believe that he could "sign away [his] freedom for something" he does not support. The court explained the maximum penalties it could impose and allowed appellant to again discuss the matter with counsel.

{¶7} After appellant again discussed the plea offer, counsel informed the trial court that appellant wished to reject the state's offer. Attorney Banks also asked the court to allow him to withdraw as counsel. After the court granted Banks'

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motion to withdraw, the court appointed Attorney Gene Meadows to represent appellant. Subsequently, appellant withdrew his motion to suppress evidence.

{¶8} The morning of trial, the state filed a motion to amend the indictment. The state asserted that the indictment incorrectly recited the trafficking offense in terms of R.C. 2925.03(A)(1), rather than R.C. 2925.03(A)(2). The prosecutor explained that the amendment did not change the name of the offense or the penalty, and that the case "always [has] been a transport, deliver, shipment type of case."

{¶9} Whitehead's counsel did not object to the motion to amend the indictment and agreed that the amendment would not change Whitehead's defense strategy. The court asked Whitehead whether he concurred, and Whitehead responded, "[y]es."

{¶10} Appellant's counsel likewise stated that "the case laws [sic] clear on this." Appellant's counsel further stated, "[w]e can tell by reading the discovery that it was a transport * * * case." Appellant also indicated that the amendment would not change the defense strategy. The trial court thus granted the state's motion to amend the indictment to allege a violation of R.C. 2925.03(A)(2).

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{¶11} At trial, Trooper Lewis testified that around 11:30 p.m. on August 10, 2018, he noticed a black vehicle "tailgating a lead vehicle." Lewis followed the vehicle and noticed a change from the right lane to the left lane and speed at 40 miles per hour in a 55-mile-per-hour zone. At this point, Lewis stopped the vehicle and asked the driver for identification. McKee sat in the driver's seat, appellant who had rented the vehicle, sat in the front passenger seat, and Whitehead in the left middle row, directly behind McKee. Lewis learned that all three occupants are Michigan residents.

{¶12} After Trooper Lewis asked McKee to exit the vehicle, they walked to the cruiser. Lewis stated that he asked McKee to exit the vehicle as part of his drug interdiction protocol and to check on the status of his well-being. Lewis related that, when a vehicle is traveling 40 miles per hour in a 55-mile-per-hour zone, "there's typically a - a problem." Lewis indicated he thus instructed McKee to exit the vehicle so Lewis could "try to figure out what was going on with him." Lewis explained he "had planned on placing [McKee] in the back of the cruiser while [he] checked [McKee's] driver's license and just talk[ed] to him about why he was driving erratically." Because highway patrol policy is to conduct pat-down searches of individuals before

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placing them in cruisers, Lewis asked McKee if he could conduct a pat-down search. Lewis indicated that McKee agreed to the search.

{¶13} As Trooper Lewis started to conduct the pat-down search, he told McKee to keep his hands out of his pockets. McKee, however, disobeyed that instruction and "the first thing [McKee] does is takes his left hand[, ] puts it in his pocket and pulls out something in his - his fist." Lewis noticed that McKee's fist was "balled up." Lewis asked McKee what he had in his hand and, rather than answering, McKee "shove[d his hand] back down the front of his pants." Lewis then "grab[bed]" McKee and "put him against the - the rear of the vehicle." As Lewis handcuffed McKee, he noticed "a plastic baggie fall[] from his chest to the ground." The plastic bag contained "a small amount of marijuana residue." At this point, Lewis requested backup assistance.

{¶14} After Ohio State Highway Patrol Trooper Matt Lloyd responded to the call for backup, he removed appellant, the front-seat passenger, patted him down for weapons, and placed him in the rear of Trooper Lewis' cruiser with McKee. Then, the troopers removed Whitehead, patted him down, and placed him in the rear of Lloyd's cruiser. Lewis explained that the troopers

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removed the occupants because they knew that they would search the vehicle based upon the discovery of marijuana residue.

{¶15} As Trooper Lewis began to search the vehicle, he also noticed what appeared to be crack cocaine in the front passenger seat. A field test confirmed that suspicion and indicated the substance to be crack cocaine.

{¶16} Trooper Lewis also stated that Trooper Lloyd searched the area where Whitehead had been seated and noticed that a trim piece on the driver's seat backrest appeared to have "been tampered with." Lloyd pulled the trim piece "back a little bit," and discovered a plastic bag in the back of the driver's seat that contained 57 grams of heroin worth around $6, 000. Lewis also testified that 57 grams of heroin is not an amount to suggest personal use and, instead, "would be considered a trafficking amount."

{¶17} During Trooper Lewis' testimony, the state played a video of the traffic stop that included the vehicle search and the conversation between McKee and appellant while seated in the cruiser. McKee, who was extremely talkative, complained that the handcuffs hurt his wrists and, as Trooper Lloyd started to search the area where he found the heroin, McKee began to yell for the trooper. After the troopers discovered the heroin,

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Lewis read appellant and McKee the Miranda warnings. Appellant asked why they were being arrested and Lewis informed appellant and McKee that they had discovered heroin in the vehicle. Appellant and McKee both responded with disbelief. Appellant claimed he did not know anything about the heroin, that the vehicle is a rental car, that he is a truck driver, and that the three occupants intended to visit "some females" in Kentucky. Lewis agreed with appellant that the vehicle is a rental car, but pointed out to McKee and appellant that appellant had rented the vehicle approximately one week earlier. McKee likewise denied any knowledge about the heroin and expressed surprise about its discovery in the car. McKee also repeated appellant's...

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