State v. Smith
| Decision Date | 17 October 2016 |
| Docket Number | Case No. 16-CA-15 |
| Citation | 2016 Ohio 7390 |
| Parties | STATE OF OHIO Plaintiff-Appellee v. STEVEN L. SMITH Defendant-Appellant |
| Court | Ohio Court of Appeals |
JUDGES: Hon. W. Scott Gwin, P.J. Hon. John W. Wise, J. Hon. Patricia A. Delaney, J.
For Plaintiff-Appellee
PAULA SAWYERS
Assistant Prosecuting Attorney
20 South Second Street
Newark, OH 43055
For Defendant-Appellant
DENNIS MCNAMARA
88 East Broad Street, Ste. 1350
Columbus, OH 43215
{¶1} Appellant Steven L. Smith appeals his conviction and sentence after a jury trial in the Licking County Court of Common Pleas for tracking in cocaine and possession of cocaine.
{¶2} On July 23, 2015, the Licking County Grand Jury indicted Smith for the offenses of Possession of Cocaine in violation of R.C. 2925.11(A)(C)(4)(f), a first degree felony (Count I) and Trafficking in Cocaine in violation of R.C. 2925.03(A)(2) & (C)(4)(g), a first degree felony (Count II). Attached to the second count was a forfeiture specification pursuant to R.C. 2941.1417. The specification requested forfeiture of the vehicle that Smith was driving when arrested and the fifty-eight thousand dollars that the officers seized from Smith's residence.
{¶3} On September 3, 2015, Smith filed a motion to suppress the items seized during the search of his residence. On September 17, 2015, the prosecution filed its response opposing the motion. On October 2, 2015, the trial court conducted oral argument on the motion. The parties agreed that no testimony or evidence would be presented to the trial court on the motion to suppress. On November 5, 2015, the trial court issued its entry overruling the motion.
{¶4} The following evidence was presented during Smith's jury trial.
{¶5} On July 7, 2015, a package was shipped via Federal Express from a Catherine Smith in California to a John Smith located at 50 North 11th Street Newark, Ohio. The package was sent two-day delivery with no signature required.
{¶6} On July 8, 2015 at approximately 11:45 p.m., Smith is observed on the video surveillance system of Big Mommas' House of Chicken and Fish located at 50 North 11th Street, Newark, Ohio. Smith can be seen entering the business and disconnecting the video surveillance system.
{¶7} On July 9, 2015, Detective Jerry Peters was working the package interdiction unit under the narcotics task force with the City of Columbus Police Department. Detective Peters has worked this unit for 17 of his 28 years with the Columbus Police Department. On July 9, 2015, Detective Peters was assigned to Federal Express in Columbus, Ohio.
{¶8} Detective Peters testified that he observed a white cardboard box come down the belt that stood out from the other packages. The box had been heavily taped at all of the seams. The package was coming from California and was addressed from a "Smith" to a "Smith." Further, the telephone number was the same for the sender and the recipient of the package. Detective Peters initiated a LexisNexis Accurint database search and determined that Big Mommas' House of Chicken and Fish was located at the delivery address. Detective Peters called for a canine drug-detecting dog who subsequently alerted upon the package.
{¶9} Detective Peters obtained a search warrant to open the package and discovered over two pounds of cocaine inside the box. A decision was made to place a tracking device inside the package and to attempt a controlled delivery of the parcel. Detective Peters posed as the FedEx delivery person and delivered the package on July 9, 2015 to Big Mommas' House of Chicken and Fish. Detective Peters testified that 50 North 11th Street, Newark, Ohio is a commercial building divided into two sections. One side of the building was vacant; however, the other side of the building housed Big Mommas' House of Chicken and Fish. Detective Peters did not observe any "50 A" or "50 B" anywhere on the outside of the building.
{¶10} An employee accepted delivery of the package and placed it on a shelf.
{¶11} Special agent Jonathan Dozer of the Ohio Bureau of Criminal Investigation testified that he placed a "package alarm" inside the box. This device would enable the officers to detect if the package is opened and to track the package from a short distance away.
{¶12} Officers maintained a visual surveillance of Big Mommas' House of Chicken and Fish. At approximately 5:50 p.m. on July 9, 2015, Smith is seen restarting the video surveillance system. At approximately 5:55 p.m., the officers detected that the package is being moved. Smith is observed on the video surveillance systems removing the package now located on the bottom rack of a cabinet or stand and leaving the building.
{¶13} Smith is driving a red Subaru. A second vehicle, a black Dodge Durango leaves the parking lot the same time as Smith. When the signal from the package is lost, a marked police cruiser attempted to stop the vehicles.
{¶14} After the officers initiated the emergency lights of their cruiser, they attempted to get around the "Durango which had slowed to almost a stop on 10th Street." Smith's home was "merely several feet away from the traffic stop." The box was recovered in plain view from Smith's vehicle.
{¶15} The Durango continued "and officers attempted to pull it over, but it fled making several turns." The Durango was eventually stopped. Two cell phones that were destroyed were found inside that vehicle.
{¶16} Smith gave Sergeant Alan Thomas of the Licking County Sheriff's Office an address of "252 West Main Street, Newark, Ohio" as his place of residence. (2T. at 365-366). While knocking on the front door of 314 N. 10th Street, a female who identified herself as Smith's mother informed the officers that Smith lived at the premises.
{¶17} Police obtained a warrant to search the premises located at 314 N. 10th Street.
{¶18} Lieutenant Paul Cortright is a law enforcement officer with over twenty-nine years of experience. Twenty-five of his twenty-nine years have been with the Central Ohio Drug Enforcement Task Force. Lieutenant Cortright testified he had received specialized training in dealing with items related to drug trafficking. Lieutenant Cortright testified that he had been involved in the search of the Smith's residence, specifically in the master bedroom. Lieutenant Cortright located a safe. Inside the bedroom closet, Lieutenant Cortright found a cardboard box containing a black vinyl bag. Inside of the bag, Lieutenant Cortright found a $50,000.00 in U.S. currency inside a vacuum-sealed bag. An additional $8,000.00 was found inside the safe. The vacuum sealing machine was also located in the master bedroom. Lieutenant Cortright testified that it is very common to seal up packets of narcotics for redistribution using this type of machine.
{¶19} Lieutenant Cortright further testified that several bags of white powder were located in the kitchen of Smith's home, and his belief was that it was used for cutting cocaine. In addition, a large amount of Inositol a dietary supplement was located underneath the kitchen sink. Lieutenant Cortright testified that a bottle of Inositol costs $149 and is used as a cutting agent for cocaine. Lieutenant Cortright explained that the block of cocaine in the package would be made into a powdered form using something like a mortar and pestle. A mortar and a pestle were recovered from underneath the sink area in Smith's kitchen. The cocaine would then be mixed with a cutting agent, such as Inositol, and then pressed back into a solid form. A chrome press and a digital scale were also recovered from Smith's home. Additionally, the press found in Smith's home was found to have cocaine residue on it. The mortar and pestle found in Smith's home also had residue on it, but not a sufficient amount to test.
{¶20} No adult female clothing was observed in the home. (2T. at 294; 306; 310).The police also recovered a list with names with amounts of money next to each name.
{¶21} Francione Dumas testified on Smith's behalf. Dumas installed the video surveillance system at Big Mommas' House of Chicken and Fish. Dumas testified that Smith could activate or deactivate the system from his home using a tablet or computer. Dumas testified that on July 8, 2015, Smith brought the DVR recording system to him sometime around 11:30 p.m. to 12:00 a.m. Dumas was to see if the system could handle an additional video camera that Smith wanted to install. Dumas identified State's Exhibit 29 the DVR recording system confiscated by the police on July 9, 2015 from Big Mommas' House of Chicken and Fish as the same system he had received on July 8, 2015. (2T. at 459-460).
{¶22} Ana Jefferies, Smith's fiancé testified that she has lived with Smith at 314 North 10th Street since July 2015. Jefferies testified that the vitamins and supplements belonged to her, including the Inositol. Jefferies testified that she began taking Inositol at the request of her doctor. She further testified that she stored the items underneath the kitchen sink because the bottles were big and would fall off the shelves.
{¶23} Jeffries testifies that she has kept most of her belongings, including most of her clothing, in bags and totes. Further, Jefferies testified that the mortar and pestle, digital scale, and chrome press were used for food preparation.
{¶24} Smith testified on his own behalf. Smith testified that he was not expecting a package to be delivered on July 9, 2015; however, it was not unusual for packages to arrive at Big Mommas' House of Chicken and Fish.
{¶25} On July 9, 2015, Smith was preparing for a barbecue, blues and jazz festival at the business. Smith testified that he took the package when he left work to make room for the party preparations.
{¶26} Smith testified that he was on his way to Walmart to buy produce for the business...
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