State v. Smith

• Decision Date: 22 July 2016
• Docket Number: No. 15CA3686.,15CA3686.
• Citation: 70 N.E.3d 150,2016 Ohio 5062
• Parties: STATE of Ohio, Plaintiff–Appellee, v. Thomas O. SMITH, Defendant–Appellant.
• Court: Ohio Court of Appeals

70 N.E.3d 150

2016 Ohio 5062

STATE of Ohio, Plaintiff–Appellee,

v.Thomas O. SMITH, Defendant–Appellant.

No. 15CA3686.

Court of Appeals of Ohio, Fourth District, Scioto County.

July 22, 2016.

Timothy Young, Ohio Public Defender and Nikki Trautman Baszynski, Assistant State Public Defender, Columbus, OH, for appellant.

Mark E. Kuhn, Scioto County Prosecuting Attorney, Pat Apel, Assistant Prosecuting Attorney and Julie Cooke–Hutchinson, Assistant Prosecuting Attorney, Portsmouth, OH, for appellee.

HOOVER, J.

{¶ 1} Defendant-appellant Thomas O. Smith ("Smith") appeals his convictions and sentences from the Scioto County Common Pleas Court, following a jury trial. A jury found Smith guilty of multiple offenses including engaging in a pattern of corrupt activity, multiple trafficking and possession offenses, and participating in a criminal gang. The trial court sentenced Smith to an aggregate total of 40 years in prison.

{¶ 2} Here on appeal, Smith asserts five assignments of error. First, Smith argues that numerous instances of prosecutorial misconduct violated his right to a fair trial. Second, Smith contends that his trial counsel was ineffective because he failed to object to those instances of prosecutorial misconduct. Third, Smith argues that testimony from a State of Ohio ("State") expert witness and two of the State's admitted exhibits contained testimonial hearsay in violation of his Sixth Amendment right to confront the witnesses against him. Fourth, Smith contends that the cumulative nature of the errors that occurred during his trial denied him his right to a fair trial. Finally, Smith contends that his convictions for engaging in a pattern of corrupt activity and participating in a criminal gang should have merged for sentencing as allied offenses of similar import.

{¶ 3} For the reasons discussed more fully below, we overrule Smith's first, second, third, and fourth assignments of error. Therefore, we affirm Smith's convictions. However, we agree with Smith that his convictions for engaging in a pattern of corrupt activity and participating in a criminal gang should have merged as allied offenses of similar import. Accordingly, we sustain Smith's fifth assignment of error. We remand the case for proceedings consistent with this decision.

I. Facts and Procedural Posture

{¶ 4} On September 26, 2014, the Scioto County Grand Jury filed a superseding indictment against defendant-appellant Smith and 21 other defendants for multiple offenses. Smith was charged with the following counts: Count 1: engaging in a pattern of corrupt activity, a first degree felony, in violation of R.C. 2923.32(A)(1) ; Count 2: conspiracy to engage in corrupt activity, a second degree felony, in violation of R.C. 2923.01 ; Counts 10–13: trafficking in drugs/major drug offender, first degree felonies, in violation of R.C. 2925.03(A)(2) ; Counts 15 and 16: trafficking in drugs/heroin, second degree felonies, in violation of R.C. 2925.03(A)(2) ; Count 17: possession of heroin, a second degree felony, in violation of R.C. 2925.11(A) /(C)(6)(e); Count 18: trafficking in drugs/cocaine, a first degree felony, in violation of R.C. 2925.03(A)(2) & (C)(4)(f) ; Count 19: possession of cocaine, a first degree felony, in violation of R.C. 2925.11(A) /(C)(4)(e); Count 27: conspiracy to traffic in heroin, a second degree felony, in violation of R.C. 2923.01 ; Count 28: participating in a criminal gang, a second degree felony, in violation of R.C. 2923.42 ; Count 38: trafficking in drugs, a fourth degree felony, in violation of R.C. 2925.03(A)(1). Counts 10–13, 15–19, 27 and 38 were predicate events of the offenses of engaging in a pattern of corrupt activity and participating in a criminal gang.¹

{¶ 5} The State's case against Smith proceeded to a jury trial on February 2, 2015.² During its case in chief, the State presented 11 witnesses. The State's theory of this case was that members of the 22nd Street Bloods, a gang from Columbus, Ohio, ran a drug trafficking operation in Scioto County. The operation included usage of a phone number that individuals would call and set up a meeting in order to purchase drugs. The State presented evidence that Smith took an active role in this drug trafficking operation.

{¶ 6} The State's first witness was Detective Robert C. Vass ("Vass") of the Columbus Police Department ("CPD"). Vass was tasked with investigating and gathering intelligence on criminal street gangs. Vass was designated as an expert witness, without objection from counsel. As a part of his duties, Vass and the other officers within the CPD classify gangs and monitor the criminal activities of their members. Vass testified that the CPD compiles a list of active and inactive members of each gang. According to Vass, if an active individual has two years of no contact with the police, then that individual is moved to an inactive classification.

{¶ 7} Vass initially testified about the general behavior of gangs and gang culture. Vass stated that most of the gangs in Columbus identify as either the Bloods or the Crips; and the gangs typically have affiliation to a specific neighborhood. Vass's testimony eventually focused on the 22nd Street Bloods. Vass identified several members of the 22nd Street Bloods, including an original member of the gang Dartangnan Hill, Smith's brother and co-defendant Orlando Smith, and co-defendants Troy Hines, Courtney Anderson, Kelvin Hayden, Andre Gilliam, and Ronald Fields. Vass also described the characteristics of the gang, as well as the members' use of clothing, symbols, hand gestures, tattoos and colors to show their affiliation with the gang. Vass testified that the gang generated money in two different ways—selling narcotics and committing armed robberies.

{¶ 8} During Vass's testimony, the State introduced what was referred to as a "criminal predicate statement" on the activities of the 22nd Street Bloods. According to Vass, the criminal predicate statement explains how and why the CPD believes a certain organization is a criminal street gang. The criminal predicate statement documents the gang's activities and in particular, the gang members' contacts with police officers. The criminal predicate statement is a collection of dated summaries that describe police officers' investigations of criminal activity involving members of the 22nd Street Bloods. Vass testified that the CPD keeps the criminal predicate statement in the normal course of police business. The State introduced and marked the criminal predicate statement as State's Exhibit 4. The trial court admitted the criminal predicate statement into evidence.

{¶ 9} Vass also testified that, in anticipation of trial, he prepares a "gang book" on individual defendants. The gang book shows how a specific gang member has been documented. Vass testified that in 2005, the CPD began to document Smith's criminal activities as a member of the 22nd Street Bloods. The gang book is similar to the criminal predicate statement, in that it is also a report of Smith's criminal activity associated with the 22nd Street Bloods. The gang book contains dated summaries of police investigations and investigative reports written by different CPD investigators. The State introduced the gang book on Smith and marked it as State's Exhibit 5. The trial court admitted the gang book into evidence.

{¶ 10} The State introduced and Vass testified to the multiple prior convictions of documented members of the 22nd Street Bloods. Through Vass's testimony, the State introduced the criminal history of the following co-defendants and documented members of the 22nd Street Bloods: Kelvin Hayden, Robert Charles, Troy Hines, Orlando Smith (Smith's brother), Andre Gilliam, Courtney Anderson, and Ronald Fields. The State also introduced Smith's prior convictions. Smith was convicted in four separate cases from Franklin County on offenses including possession of cocaine, possession of drugs, and having weapons under a disability. Because of those convictions, Smith was incarcerated from May 2010 to November 2013.

{¶ 11} Vass stated that he was personally familiar with Smith because he had interacted with him in the past. Vass stated that Smith went by the aliases "Bugatti Bhomas," "Gotti," and "Bhomas." Vass had also conducted surveillance on Smith. Vass opined that Smith was an active member of the 22nd Street Bloods before he was incarcerated in 2010, while he was incarcerated and after he was released in 2013. On cross-examination, defense counsel asked Vass how he could classify Smith as active during his incarceration if the CDP was not monitoring him. Defense counsel referred to Vass's earlier testimony that if a person had two years of no contact with police then that person would be classified as inactive. Vass answered that he based his conclusion on a Department of Corrections (DOC) report, obtained through the Ohio law enforcement gateway ("OLEG") that classified Smith as an active participant in a criminal gang during his incarceration. The DOC report was included in the gang book. Vass stated that the DOC would have to furnish the documentation to support that classification as the DOC, and not CPD, monitors a gang member's status during incarceration.

{¶ 12} During Vass's testimony, the State introduced photographs and videos depicting Smith's co-defendants with drugs, money, and guns. Vass identified gang members and gang references in the pictures and videos. The State also introduced videos and photographs from Smith's social media account. The videos featured Smith performing rap music. The photographs and videos portray Smith with large sums of money and making references to the 22nd Street Bloods. The images did not indicate the exact date of posting to social media but they did show how long had passed since they were posted. Vass estimated that the images were posted in November 2013. On cross-examination, Vass indicated that he did not know the exact dates the photographs and videos were...