State v. Whitehead, 20CA3931

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtPeter B. Abele, Judge
Citation2022 Ohio 479 .
PartiesSTATE OF OHIO, Plaintiff-Appellee, v. ERNEST WHITEHEAD, Defendant-Appellant.:
Decision Date18 February 2022
Docket Number20CA3931

2022-Ohio-479.

STATE OF OHIO, Plaintiff-Appellee,
v.

ERNEST WHITEHEAD, Defendant-Appellant.:

No. 20CA3931

Court of Appeals of Ohio, Fourth District, Scioto

February 18, 2022


CRIMINAL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED: 2-11-22

Rick L. Ferrara, Cleveland, 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 Ernest Whitehead, defendant below and appellant herein guilty of two first-degree felonies: (1) trafficking in heroin in violation of R.C. 2925.03(A)(2), [2] and (2) possession of heroin in violation of

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R.C. 2925.11(A). The trial court merged the possession offense with the trafficking offense and sentenced appellant to serve a six-year prison term.

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

FIRST ASSIGNMENT OF ERROR
"DEFENSE COUNSEL PROVIDED CONSTITUTIONALLY INEFFECTIVE ASSISTANCE BY FAILING TO MOVE FOR DISMISSAL ON SPEEDY TRIAL GROUNDS, FAILING TO FILE A MOTION TO SUPPRESS, FAILING TO FILE A MOTION FOR SEPARATE TRIALS, AND FAILING TO PROVIDE ADEQUATE DEFENSE AT TRIAL"
SECOND ASSIGNMENT OF ERROR:
"THE TRIAL COURT COMMITTED PLAIN ERROR IN AMENDING THE INDICTMENT PRIOR TO TRIAL TO ALTER COUNT ONE BY CHANGING AN ELEMENT OF THE OFFENSE" THIRD ASSIGNMENT OF ERROR:
"THE STATE OF OHIO PRESENTED INSUFFICIENT EVIDENCE TO SUPPORT A CONVICTION FOR DRUG TRAFFICKING, DRUG POSSESSION, AND POSSESSION OF CRIMINAL TOOLS."
FOURTH ASSIGNMENT OF ERROR:
"THE MANIFEST WEIGHT OF THE EVIDENCE DID NOT WARRANT CONVICTION ON ANY COUNT."
FIFTH ASSIGNMENT OF ERROR:
"THE TRIAL COURT ACTED CONTRARY TO LAW IN IMPOSING A SIX YEAR TERM OF MANDATORY IMPRISONMENT."
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{¶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, Henry Deandre Smith, and appellant and all stated that 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, Smith, and McKee with trafficking in heroin in violation of R.C. 2925.03(A)(1), possessing heroin in violation of R.C. 2925.11(A), and possessing criminal tools in violation of R.C. 2923.24(A). Appellant and Smith entered not guilty pleas.[3]

{¶5} 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."

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

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

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 approached the driver to ask for identification. McKee sat in the driver's seat, Smith, who had rented the vehicle, sat in the front passenger seat, and appellant in the left middle row, directly behind McKee. Lewis learned that all three occupants are Michigan residents.

{¶8} 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 wanted McKee out of 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 placing them in cruisers, Lewis asked McKee if he could conduct a pat-down search. Lewis indicated that McKee agreed to the search.

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{¶9} 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.

{¶10} After Ohio State Highway Patrol Trooper Matt Lloyd responded to the call for backup, he removed the front-seat passenger, Smith, patted him down for weapons, and placed him in the rear of Trooper Lewis' cruiser with McKee. Then, the troopers removed appellant, patted him down, and placed him in the rear of Lloyd's cruiser. Lewis explained that the troopers removed the occupants because they knew that they would search the vehicle based upon the discovery of marijuana residue.

{¶11} 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 their suspicion and indicated the substance to be crack cocaine.

{¶12} Trooper Lewis also stated that Trooper Lloyd searched the area where appellant 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.

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Lewis also testified that 57 grams of heroin is not an amount to suggest personal use and, instead, "would be considered a trafficking amount."

{¶13} During Trooper Lewis' testimony, the state played a video of the traffic stop that included the vehicle search and the conversation between McKee and Smith 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, Lewis read Smith and McKee the Miranda warnings. Smith asked why they were being arrested and Lewis informed Smith and McKee that they had discovered heroin in the vehicle. Smith and McKee both responded with disbelief. Smith 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 Smith that the vehicle is a rental car, but pointed out to Smith and McKee that Smith rented the vehicle about one week earlier. McKee likewise denied any knowledge about the heroin and expressed surprise about its discovery. McKee also repeated Smith's statements that they intended to visit "some females" and that Smith is a truck driver.

{¶14} The troopers then removed Smith from the back of Trooper Lewis' cruiser and placed appellant in the back seat with McKee. McKee continued to express surprise to appellant that the troopers discovered heroin and he stated he did not know how heroin ended up in the vehicle. McKee told appellant that they were merely traveling to Kentucky to visit "some females" and did not understand how they ended up in this predicament.

{¶15} When the troopers spoke with appellant, appellant also claimed he knew nothing about the heroin in the back of the driver's seat, even though the heroin had been stuffed inside

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the seat-back directly in front of him. Trooper Lloyd testified he discovered a gap in the back of the driver's seat that "easily pull[ed] back," and inside he discovered a plastic bag that contained heroin.

{¶16} The state also presented the testimony of Josie Keating, a rental car agency representative who rented the vehicle to Smith. Keating stated that the rental car would have undergone an inspection before Smith took possession, and if the vehicle had any damage, it would have been noted on the inspection report. Keating testified that Smith's inspection report indicated "no damage...

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