State v. Taylor
| Decision Date | 27 April 2016 |
| Docket Number | Case No. 15CA12 |
| Citation | 2016 Ohio 2781 |
| Parties | STATE OF OHIO, Plaintiff-Appellee, v. DARRYL D. TAYLOR, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
DECISION AND JUDGMENT ENTRY
APPEARANCES:
Scott D. Evans, Ironton, Ohio, for appellant.
Brigham M. Anderson, Lawrence County Prosecuting Attorney, C. Michael Gleichauf, Lawrence County Assistant Prosecuting Attorney, Ironton, Ohio, for appellee.
{¶1} A jury convicted Darryl D. Taylor of trafficking in drugs and found that his property was subject to forfeiture. After the trial court sentenced him, Taylor filed this appeal and argues that there was insufficient evidence to support his conviction and that the conviction was against the manifest weight of the evidence. He appears to argue that he established an entrapment defense because the informant initiated the sale; or in the alternative, that there is no evidence that he formed the intent to sell or offer to sell oxycodone. In support he argues the only evidence presented concerning three controlled buys came from a confidential informant, whom Taylor argues was not credible. He also contends that there was insufficient evidence that the sale occurred in the presence of juveniles because the confidential informant could not provide the names of the juveniles or give a physical description with certainty, i.e. she was not credible. But, the credibility of witnesses is a task for the jury. The state introduced testimony of investigators and the confidential informant, as well as the audio-video recordings of each of the three controlled buys. And the informant testified she was familiar with the children. Based on this evidence, the jury properly found the essential elements of the crimes proven beyond a reasonable doubt. Because the jury did not clearly lose its way or create a manifest miscarriage of justice, we reject Taylor's first assignment of error.
{¶2} Next, Taylor contends that the trial court erred in denying his motion to suppress because police obtained evidence through the informant in violation of his Fourth Amendment right to be free from unreasonable searches in his home. However, the record shows that Taylor willingly invited the confidential informant - a relative of his ex-wife—into his residence so that he could sell her oxycodone. Thus, there was no violation of Taylor's Fourth Amendment rights. We overrule Taylor's second assignment of error.
{¶3} Finally, Taylor argues that the trial court erred in its sentencing because R.C. 2929.19(B) requires the trial court to impose post-release control for his second degree felony conviction. Taylor claims he was not advised of post-release control so his sentence is void. The state agrees that, according to the sentencing transcript, Taylor was not advised of post-release control at the sentencing hearing and thus that portion of his sentence is void. We agree and sustain Taylor's third assignment of error.
{¶4} We affirm in part, reverse in part, and remand for limited resentencing.
{¶5} Taylor was the subject of a Lawrence County Drug and Major Crimes Task Force investigation. The chief investigator testified that the task force worked with a confidential informant to set up three separate purchases of oxycodone from Taylor. The confidential informant was equipped with an audio-visual recording device and marked purchase money. On the first buy the informant went to Taylor's residence and purchased 20 oxycodone 30 mg tablets; on the second buy she purchased 15 oxycodone 30 mg tablets; and on the third buy she purchased 15 oxycodone 30 mg tablets. Each purchase met or exceeded the bulk amount of 450 mg of oxycodone. Investigators set up each of the three buys, searching the confidential informant and her vehicle before and after the buys and following the informant to and from Taylor's residence. The jury viewed the audio-visual recordings from each of the three controlled buys.1
{¶6} The confidential informant testified that she knew Taylor because he was married to her cousin and she knew Taylor's two children, who were approximately eight and ten years old. When she arrived at Taylor's residence to make the first controlled buy, she saw both of Taylor's children playing in the front yard, approximately 20 feet from where she and Taylor transacted the controlled buy. The confidential informant testified that the day before the first controlled buy, Taylor met with her to discuss how they were going to conduct his sale of oxycodone to her. She testified that Taylor told her that they were never going to talk on the phone, he was never going to physically hand the pills to her, and he was never going to sell her fewer than 10 oxycodone 30 mg tablets.
{¶7} After the third controlled buy police obtained and executed a search warrant for Taylor's residence and seized four firearms, an additional 19 oxycodone 30 mg tablets, two thousand and seventeen dollars in cash, of which four hundred and fifty dollars were marked money from the controlled buy earlier that day, a money counter, and a counterfeit bill detector. The state introduced photographs of evidence obtained from the search, including photographs of a plastic bag with 19 oxycodone 30 mg tablets, a box containing small, re-sealable plastic bags, a stack of money, and serial number comparisons that identified the marked money used in the controlled buys.
{¶8} Police arrested Taylor, who waived his Miranda rights and gave an audio-recorded statement in which he disclosed the location of firearms in his residence, but refused to answer questions related to the controlled buys. Based on the information Taylor provided, investigators located two firearms in the bedroom, one in a kitchen cabinet, and one in the trunk of Taylor's vehicle.
{¶9} A jury found Taylor guilty on count one of trafficking in drugs in the presence of juveniles in violation of R.C. 2925.03(A)(1)(C)(1)(c), a second degree felony, on counts two and three of trafficking in drugs in violation of R.C. 2925.03(A)(1)(C)(1)(c), and on count four of trafficking in drugs in violation of R.C. 2925.03(A)(2)(C)(1)(c), all of which are third degree felonies. The jury also found that Taylor's cell phone and $2,017.00 in cash were subject to forfeiture. However, the jury found Taylor not guilty of having a firearm on or about him while trafficking in drugs.
{¶10} At the sentencing hearing the trial court sentenced Taylor to a total of 13 years in prison and a total fine of $22,500. The trial court did not inform Taylor that he would be subject to a period of post-release control, nor did it inform him of the potential prison term that may be imposed should he violate the terms of the post-release control. However, the judgment of conviction sets forth the post-release control period and sanctions for possible violations. Taylor appealed.
{¶11} Taylor raises three assignments of error:
{¶12} Taylor contends that his convictions for trafficking in oxycodone and trafficking in oxycodone in the presence of juveniles are not supported by sufficient evidence and are against the manifest weight of the evidence. "When a court reviews a record for sufficiency, '[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.'" State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 146, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus; Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). That analysis does not include a weighing of the evidence or witness credibility. See State v. Tolbert, 4th Dist. Washington No. 15CA5, 2015-Ohio-4733. It simply determines whether the evidence, if believed, would support a conviction. But the weight and credibility of evidence are to be determined by the trier of fact. State v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 132. "A jury, sitting as the trier of fact, is free to believe all, part or none of the testimony of any witness who appears before it." State v. West, 4th Dist. Scioto No. 12CA3507, 2014-Ohio-1941, ¶ 23. We defer to the trier of fact on these evidentiary weight and credibility issues because it is in the best position to gauge the witnesses' demeanor, gestures, and voice inflections, and to use these observations to weigh their credibility. Id.
{¶13} In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997); State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6254, 960 N.E.2d 955, ¶ 119. "Although a court of appeals may determine that a judgment of a trial court is sustained by sufficient evidence, that court may nevertheless conclude...
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