Statev.Martin

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICTNov 18, 2019
Case No. 19 CAA 01 0004 (Ohio Ct. App. 2019)

Case No. 19 CAA 01 0004

11-18-2019

STATE OF OHIO Plaintiff-Appellee v. JOSHUA MARTIN Defendant-Appellant

APPEARANCES: For Plaintiff-Appellee MELISSA A. SCHIFFEL Delaware County Prosecuting Attorney DOUGLAS DUMOLT Assistant Prosecuting Attorney 140 N. Sandusky Street, 3rd Floor Delaware, Ohio 43015 For Defendant-Appellant APRIL F. CAMPBELL 545 Metro Place South, Ste. #100 Dublin, Ohio 43017


JUDGES: Hon. W. Scott Gwin, P.J Hon. William B. Hon. John W. Wise, J.

OPINION

CHARACTER OF PROCEEDINGS: Appeal from the Delaware County Court of Common Pleas, Case No. 18 CRI 090511 JUDGMENT: Affirmed APPEARANCES: For Plaintiff-Appellee MELISSA A. SCHIFFEL
Delaware County Prosecuting Attorney DOUGLAS DUMOLT
Assistant Prosecuting Attorney
140 N. Sandusky Street, 3rd Floor
Delaware, Ohio 43015 For Defendant-Appellant APRIL F. CAMPBELL
545 Metro Place South, Ste. #100
Dublin, Ohio 43017 Hoffman, J.

{¶1} Appellant Joshua Martin appeals the judgment entered by the Delaware County Common Pleas Court convicting him of six counts of trafficking in heroin (RC. 2925.03(A)(1)), five counts of trafficking in cocaine (R.C. 2925.03(A)(1)), one count of trafficking in cocaine in the vicinity of a juvenile (R.C. 2925.03(A)(2)), one count of trafficking in fentanyl in the vicinity of a juvenile (R.C. 2925.03(A)(2), one count of possession of heroin (R.C. 2925.11(A)), one count of possession of cocaine (R.C. 2925.11(A)), and one count of possession of fentanyl (R.C. 2925.11(A)), and sentencing him to an aggregate term of incarceration of fifteen years. Appellee is the state of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} In September, October, and November of 2017, Detective Nicholas Strasser of the Delaware County Drug Taskforce conducted an investigation of alleged drug trafficking by Appellant. As part of the investigation, Strasser used a confidential informant, R.B., to conduct controlled drug buys. R.B. was unpaid, and cooperated with police in exchange for a reduction or elimination of drug charges she faced. By the time of trial, R.B. had died of a drug overdose.

{¶3} Det. Strasser conducted five controlled drug buys relating to Appellant. R.B. was used in all five transactions. Det. Strasser recorded four of the five calls between Appellant and the informant to set up the transactions, and recorded all five of the buys. He was also able to listen to the conversations between Appellant and R.B. as they occurred.

{¶4} The first controlled purchase occurred October 9, 2017, in Franklin County. R.B. purchased $120 worth of heroin and crack cocaine from Appellant. On October 11, 2017, R.B. also purchased "china", powdered heroin, from Appellant in the parking lot of a Dollar General store in Franklin County. R.B. purchased heroin and crack cocaine from Appellant during a third controlled by on October 18, 2017, in Franklin County.

{¶5} The fourth controlled purchase of "china" for "70" and "hard" (crack cocaine) for "30" occurred on November 6, 2017, in Delaware County. The fifth purchase also occurred in Delaware County, in which R.B. purchased crack and heroin.

{¶6} Delaware Sheriff's Department Detective Dan Maurer participated in a search of Appellant's apartment on April 12, 2018. Numerous items seized in the residence were sent for laboratory testing and tested positive for controlled substances.

{¶7} Det. Maurer participated in an interview with Appellant after the search. Appellant admitting to selling drugs, and stated his "phone would ring nonstop, and that the money was coming in fast, and the drugs was leaving fast." Tr. 353. Appellant stated he would buy 150 grams of heroin from a supplier in Pittsburgh for approximately $12,000.00. Appellant admitted when he was arrested on April 12, he had "china" on his person.

{¶8} Appellant was indicted with twenty drug offenses by the Delaware County Grand Jury. Following jury trial in the Delaware County Common Pleas Court, he was acquitted on four counts and convicted of sixteen. The trial court sentenced Appellant to an aggregate term of incarceration of fifteen years.

{¶9} It is from the December 13, 2018 judgment of conviction and sentence Appellant prosecutes his appeal, assigning as error:

I. MARTIN'S FELONY CONVICTIONS SHOULD BE REVERSED BECAUSE THE STATE DID NOT ESTABLISH EITHER JURISDICTION
OR VENUE FOR THE THREE DRUG TRANSACTIONS THAT OCCURRED IN FRANKLIN COUNTY.

II. THE TRIAL COURT'S ADMISSION OF THE CONFIDENTIAL INFORMANT'S RECORDED OFFERS TO PURCHASE AND RECORDED DRUG TRANSACTIONS OVER OBJECTION VIOLATED MARTIN'S RIGHT TO CONFRONT HIS ACCUSER, REQUIRING REVERSAL OF HIS CONVICTIONS.

III. THE TRIAL COURT ERRED IN ADMITTING AUDIO RECORDING OF THE FIVE CONTROLLED BUYS BECAUSE THERE WAS NOT VOICE IDENTIFICATION UNDER EVID.R. 901(B)(5), REQUIRING REVERSAL OF MARTIN'S CONVICTIONS.

IV. MARTIN WAS DENIED HIS RIGHT TO A FAIR TRIAL IN THIS CASE BECAUSE OF CUMULATIVE ERROR.

V. THE EVIDENCE WAS LEGALLY INSUFFICIENT AS A MATTER OF LAW TO CONVICT MARTIN OF COUNTS 7 AND 8 BECAUSE THE STATE DID NOT DEMONSTRATE THAT MARTIN TRAFFICKED HEREIN AND COCAINE IN THE VICINITY OF A JUVENILE ON OCTOBER 18, 2017.

VI. THE EVIDENCE AGAINST MARTIN FOR COUNTS 7 AND 8 WEIGHED MANIFESTLY AGAINST CONVICTING HIM, BECAUSE THE STATE DID NOT PROVE THAT MARTIN TRAFFICKED DRUGS IN THE
VICINITY OF A JUVENILE ON OCTOBER 18, 2017, AND THE JURY LOST ITS WEIGHT [SIC] WHEN IT FOUND THAT HE DID.

I.

{¶10} In his first assignment of error, Appellant argues the convictions related to the three drug transactions which occurred in Franklin County must be dismissed for want of venue and jurisdiction.

{¶11} R.C. 2901.12(H) provides:

(H) When an offender, as part of a course of criminal conduct, commits offenses in different jurisdictions, the offender may be tried for all of those offenses in any jurisdiction in which one of those offenses or any element of one of those offenses occurred. Without limitation on the evidence that may be used to establish the course of criminal conduct, any of the following is prima-facie evidence of a course of criminal conduct:

(1) The offenses involved the same victim, or victims of the same type or from the same group.

(2) The offenses were committed by the offender in the offender's same employment, or capacity, or relationship to another.

(3) The offenses were committed as part of the same transaction or chain of events, or in furtherance of the same purpose or objective.

(4) The offenses were committed in furtherance of the same conspiracy.
(5) The offenses involved the same or a similar modus operandi.

(6) The offenses were committed along the offender's line of travel in this state, regardless of the offender's point of origin or destination.

{¶12} In the instant case, some of the drug transactions occurred in Delaware County, while several occurred in Franklin County. Appellant does not argue R.C. 2901.12(H) is inapplicable to the facts in the instant case, but rather argues the statue violates his constitutional right to be tried in the county where the offense was alleged to have occurred. The Ohio Supreme Court has rejected this argument, holding there is no constitutional or statutory provision which prohibits a grand jury in one county from indicting a defendant for conduct which occurred in another county as part of a continuing course of conduct. State v. Jackson, 141 Ohio St. 3d 171, 23 N.E.3d 1023, 2014-Ohio-3707, ¶132.

{¶13} Accordingly, Appellant's first assignment of error is overruled.

II.

{¶14} In his second assignment of error, Appellant argues admission of the recordings of the drug transactions with the deceased confidential informant violated his Sixth Amendment right to confront witnesses, specifically R.B.

{¶15} The Confrontation Clause of the Sixth Amendment states, "In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him." Out-of-court statements by a witness which are testimonial in nature are barred, under the Confrontation Clause, unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). If testimony qualifies as nonhearsay, it does not implicate the Confrontation Clause. Id. at 59, citing Tennessee v. Street, 471 U.S. 409, 414, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985); State v. Maxwell, 139 Ohio St. 3d 12, 9 N.E.3d 930, 2014-Ohio-1019, ¶131. Evid. R. 801(C) defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."

{¶16} A recording of a criminal defendant's own actions or reactions does not implicate the Confrontation Clause. State v. Graves, 9th Dist. Lorain No. 08CA9397, 2009-Ohio-1133, ¶ 8. The comments of the confidential informant on such a recording are not hearsay, as they give context to a defendant's statements and are not offered to prove the truth of the matter asserted. State v. Suber, 5th Dist. Licking No. 16 CA 14, 2016-Ohio-7497, ¶ 17.

{¶17} The trial court found the recordings were admissible because the statements of R.B. were not offered to prove the truth of the matter asserted therein. Tr. 12-13. We review de novo evidentiary rulings implicating the Confrontation Clause. United States v. Henderson, 626 F.3d 326, 333 (6th Cir. 2010); State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶97.

{¶18} R.B. is heard on the recordings asking to buy drugs from Appellant, referring to the drugs by slang terms such as "china" or "hard." As in Suber, supra, her comments on the recording were not offered to prove the truth of the matter asserted, and therefore are not hearsay. Rather, we find R.B.'s statements were offered to give context to Appellant's admissible statements on the recordings. We find the trial court did not err in admitting the recordings, as the recordings do not implicate Appellant's Sixth Amendment right to confront the witnesses against him.

{¶19} The second assignment of error is overruled.

III.

{¶20} In his third assignment of error, Appellant argues the State did not lay an appropriate foundation for admission of the audio recordings of the five recorded drug transactions, because Det. Strasser did not explain how he recognized Appellant's voice on the recordings.

{¶21} Evid. R. 901 provides in pertinent part:

(A) General Provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

(B) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:

(5) Voice Identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.

{¶22} "[A] trial court is vested with broad discretion in determining the admissibility of evidence in any particular case, so long as such discretion is exercised in line with the rules of procedure and evidence." Rigby v. Lake Cty., 58 Ohio St.3d 269, 271, 569 N.E.2d 1056 (1991).

{¶23} "There is no one way to authenticate a recorded voice, and there is no per se rule of live and in person experience with a voice." State v. Spires, 7th Dist. Noble No. 04 NO 317, 2005-Ohio-4471, ¶31. Rather, the circumstances surrounding the authenticating witness's familiarity with the voice are relevant to the trial court's exercise of discretion. Id. See also State v. Pettaway, 3rd Dist. Seneca No. 13-14-18, 2015-Ohio-1597, ¶24 (tapes of drug transactions properly authenticated where officers testified they were familiar with the defendant and recognized his voice).

{¶24} Det. Strasser testified he knew Appellant, and identified him in court. Tr. 104. He conducted surveillance on Appellant's residence over the course of his investigation. Tr. 124-127. He testified he recognized Appellant's voice on the recordings. Tr. 140, 146, 157, 158, 159, 165, 169. He further testified he saw the confidential informant meet with the person he previously identified as Appellant at the time of the second buy and recorded transaction, and photographs were admitted into evidence which showed Appellant at the scene of the second recording. Tr. 148. Further, at the time the recordings were admitted into evidence by the court, the court had an opportunity to hear Appellant's recorded interview as well as jail calls made by Appellant. The trial court thus had an opportunity to personally compare Appellant's voice in the recordings of the interview and jail calls before admitting the recordings of the drug buy into evidence.

Appellant does not claim error in the authentication of Appellant's voice on these recordings. --------

{¶25} We find Det. Strasser's testimony identifying Appellant's voice as the voice on the recording sufficient to authenticate the recordings. The jury was free to give whatever weight it felt appropriate to Det. Strasser's identification of Appellant's voice on the recordings. See State v. Hutson, 11th Dist. Portage No. 2007-P-0026, 2008-Ohio-2315, ¶17 ("once the trial court determined sufficient evidence was presented to comply with the admissibility requirements of Evid. R. 901(B)(5), the sufficiency of such testimony to verify the identity of the defendant is a matter to be weighed by the trier of fact.").

{¶26} The third assignment of error is overruled.

IV.

{¶27} In his fourth assignment of error, Appellant argues he was denied a fair trial due to cumulative error as set forth in his first three assignments of error.

{¶28} In State v. Brown, 100 Ohio St.3d 51, 2003-Ohio-5059, 796 N.E.2d 506, the Ohio Supreme Court recognized the doctrine of cumulative error. However, where we have found the trial court did not err, cumulative error is inapplicable. State v. Carter, 5th Dist. Stark No. 2002CA00125, 2003-Ohio 1313 at ¶ 37.

{¶29} In the instant case, we have found no error in the admission of the recordings of the controlled buys, and no error in venue. Therefore, the doctrine of cumulative error is inapplicable.

{¶30} The fourth assignment of error is overruled.

V., VI.

{¶31} In his fifth and sixth assignments of error, Appellant argues the judgments of conviction on counts seven and eight are against the manifest weight and sufficiency of the evidence because the State did not prove he trafficked heroin and cocaine in the vicinity of a juvenile.

{¶32} Appellant does not argue the evidence was insufficient to establish trafficking in counts seven and eight. Rather, he argues the evidence was insufficient to prove the charged enhancements to these counts for trafficking in the vicinity of a juvenile.

{¶33} The jury specifically found Appellant did not traffic in the vicinity of a juvenile on count seven and count eight, and Appellant was accordingly acquitted of the enhancements. Appellant's claim of error is not supported by the verdict in the instant case.

{¶34} The fifth and sixth assignments of error are overruled.

{¶35} The judgment of the Delaware County Common Pleas Court is affirmed. By: Hoffman, J. Gwin, P.J. and Wise, John, J. concur