Beruflich Dokumente
Kultur Dokumente
STATE OF OHIO,
VS.
EVELYN M. ROBINSON,
DEFENDANT/APPELLANT.
BRIGHAM M. ANDERSON
Lawrence County Prosecuting Attorney
1 Veterans Square
Ironton, Ohio 45638
Attorney for Appellee State of Ohio
TABLE OF CONTENTS
Table of Authorities . . . . . . . . 2
Assignments of Error . . . . . . . . 3
Issues Presented . . . . . . . . . 4
Argument . . . . . . . . . . 8
Assignment of Error 1 . . . . . . . . 8
Assignment of Error 2 . . . . . . . . 9
Assignments of Error 3, 4 . . . . . . . . 10
Assignments of Error 5, 6, 7 . . . . . . . 11
Conclusion . . . . . . . . . . 20
Certificate of Service . . . . . . . . 21
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TABLE OF AUTHORITIES
CONSTITUTIONAL LAW
STATUTORY LAW
RC § 2901.05
CASE LAW
State v. Adkins, 2014-Ohio-3389, 2014 Ohio App. LEXIS 3326, 2014 WL 3824030
(Ohio Ct. App., Lawrence County July 23, 2014)
State v. Burns, 2013-Ohio-4784, 2013 Ohio App. LEXIS 4981, 2013 WL 5864626 (Ohio
Ct. App., Summit County Oct. 30, 2013)
State v. Dennewitz, 1999 Ohio App. LEXIS 5327, 1999 WL 1001109 (Ohio Ct. App.,
Ross County Nov. 5, 1999)
State v. Hamilton, 2011-Ohio-3835, 2011 Ohio App. LEXIS 3226, 2011 WL 3359984
(Ohio Ct. App., Cuyahoga County Aug. 4, 2011)
State v. Qualls, 2012-Ohio-1111, 131 Ohio St. 3d 499, 967 N.E.2d 718, 2012 Ohio
LEXIS 694 (Ohio 2012)
State v. Robinette, 80 Ohio St. 3d 234, 685 N.E.2d 762, 1997 Ohio LEXIS 2970,
1997-Ohio-343 (Ohio 1997)
State v. Roper, 2013-Ohio-2176, 2013 Ohio App. LEXIS 2086, 2013 WL 2368766 (Ohio
Ct. App., Summit County May 29, 2013)
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ASSIGNMENTS OF ERROR
2. THE TRIAL COURT ERRED IN ORDERING THAT THE APPELLANT’S VEHICLE SHOULD BE
FORFEITED.
3. THE TRIAL COURT ERRED IN OMITTING FROM THE SENTENCING ENTRY THE FACT THAT THE
OFFENSES OF POSSESSION OF HEROIN AND TRAFFICKING IN HEROIN WERE ALLIED AND
SHOULD MERGE.
4. THE TRIAL COURT ERRED IN INCLUDING IN THE SENTENCING ENTRY THE IMPOSITION OF A
MANDATORY FINE EVEN THOUGH THE TRIAL COURT HAD PREVIOUSLY WAIVED THAT FINE.
5. THE TRIAL COURT ERRED IN CONVICTING THE APPELLANT IN THE ABSENCE OF ANY EVIDENCE
THAT THE APPELLANT KNOWINGLY POSSESSED OR TRAFFICKED IN HEROIN.
7. THE JUDGMENT OF THE TRIAL COURT SHOULD BE REVERSED BECAUSE THE JUDGMENT IS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND/OR PLAINLY IN ERROR.
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ISSUES PRESENTED
1. WHETHER THE TRIAL COURT ERRED IN SENTENCING THE APPELLANT TO A PERIOD OF POST-
RELEASE CONTROL EVEN THOUGH THE TRIAL COURT DID NOT GIVE APPELLANT
NOTIFICATION OF THE PERIOD OF POST-RELEASE CONTROL AT THE SENTENCING HEARING.
2. WHETHER THE TRIAL COURT ERRED IN ORDERING THAT THE APPELLANT’S VEHICLE SHOULD
BE FORFEITED.
3. WHETHER THE TRIAL COURT ERRED IN OMITTING FROM THE SENTENCING ENTRY THE FACT
THAT THE OFFENSES OF POSSESSION OF HEROIN AND TRAFFICKING IN HEROIN WERE ALLIED
AND SHOULD MERGE.
4. WHETHER THE TRIAL COURT ERRED IN INCLUDING IN THE SENTENCING ENTRY THE
IMPOSITION OF A MANDATORY FINE EVEN THOUGH THE TRIAL COURT HAD PREVIOUSLY
WAIVED THAT FINE.
5. WHETHER THE TRIAL COURT ERRED IN CONVICTING THE APPELLANT IN THE ABSENCE OF ANY
EVIDENCE THAT THE APPELLANT KNOWINGLY POSSESSED OR TRAFFICKED IN HEROIN.
7. WHETHER THE JUDGMENT OF THE TRIAL COURT SHOULD BE REVERSED BECAUSE THE
JUDGMENT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND/OR PLAINLY IN
ERROR.
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STATEMENT OF THE CASE
On October 22, 2013, the grand jury of Lawrence County, Ohio returned a two (2)
count indictment against the Appellant, Evelyn M. Robinson. The two (2) counts were
possession of heroin in excess of 250 grams with a major drug offender specification and
trafficking in heroin in excess of 250 grams with a vehicle forfeiture specification. Trial
by jury was held in the matter and on July 1, 2014, Appellant was found guilty on both
counts.
on the possession of heroin charge. The Trial Court sentenced the Appellant to eleven
(11) years of incarceration; ordered a fine of $10,000.00; ordered a two (2) year
Appellant’s Trial Counsel moved to set aside the mandatory fine because the
Appellant was indigent. The Trial Court granted Appellant’s motion to set aside the fine
STATEMENT OF FACTS
On October 19, 2013 at approximately 3:00 a.m., Ohio Highway State Patrol
Trooper Joshua Craft (hereinafter “Trooper”) was parked on Porter Gap Road with his
high beams shining across State Route 93, just north of Ironton, Ohio. At that time,
Appellant was driving from Detroit on Route 93 towards Ironton, with her ultimate
destination being her nephew’s residence in Huntington, West Virginia (Trans. P. 91).
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Trooper testified at both the Motion to Suppress hearing and at Trial that he
visually estimated the Appellant’s speed and that she had slowed from 55 mph to 35 mph
upon seeing Trooper’s car. Trooper also claimed to have observed Appellant with “... her
hands gripped tightly on the wheel. For whatever reason when she went by she turned
Trooper began to follow Appellant’s vehicle down Route 93 for approximately three (3)
miles “... just to keep looking for a traffic violation...”. Trooper claimed to have
witnessed Appellant “drive on the white line...”, as she drove onto the entrance ramp to
US 52. (Trans. P. 93). Trooper testified that Appellant failed to use her left turn signal
as she exited the ramp onto US 52. Trooper testified that he then activated his dash cam,
“... in hopes to catch a probable cause violation for the traffic stop. As I was following
her she was weaving the lane and touching the marked lanes a few times...”. (Trans. P.
93).
Trooper then pulled Appellant over (Trans. P. 93-94). Trooper indicated that upon
his initial contact with Appellant, Appellant was “trembling and had a nervous
behavior”, but was able to provide her Michigan driver’s license to him as requested.
Trooper found it strange that Appellant was traveling State Route 93 at 3:00 a.m. in a
vehicle with Michigan license plates. However, Appellant explained that she was merely
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following the directions given by her GPS system in her vehicle (Trans. P. 316-317). That
explanation was not challenged by the State with any contradictory evidence.
Appellant had a warrant for failure to appear in Marion County Municipal Court related
to possession of marijuana residue and that Appellant was being placed under arrest.
Trooper testified that the arrest was “Based solely on the [failure to appear] warrant”.
(Trans. P. 94-95).
Only then - after Appellant’s arrest related solely to failing to appear on the
warrant - did Trooper Craft request a K-9 unit and Officer Lusk of the Huntington, West
Virginia Police Department responded with his K-9. (Trans. P. 97). When the K-9 alerted
search of Appellant’s vehicle. The search revealed 297 grams of heroin behind the tail
light assembly. The detention and search took approximately three (3) hours. Appellant
After a two (2) day jury trial, the jury returned a verdict of guilty on both counts
and the Appellant was sentenced to eleven (11) years in prison. Appellant appeals from
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ARGUMENT
The Trial Court did not notify the Appellant that she would be subject to a period
2014-Ohio-3389, 2014 Ohio App. LEXIS 3326, 2014 WL 3824030 (Ohio Ct. App., Lawrence
Under R.C. 2929.19(B)(2)(c) and (e), a trial court must notify certain
felony offenders at the sentencing hearing that: 1.) the offender is
subject to statutorily mandated postrelease control; and 2.) the
parole board may impose a prison term of up to one-half of the
offender's originally-imposed prison term if the offender violates
the post-release control conditions...
Here, the record shows that the trial court did not notify Adkins at
his sentencing hearing about postrelease control or the potential
consequences for violating his postrelease control conditions as
required by R.C. 2929.19(B)(2)(c) and (e). Therefore, that portion of
his sentence is void and we sustain his fifth assignment of error.
The Appellant asserts that the failure of the Trial Court to notify her of the
postrelease control conditions at the sentencing hearing requires that the postrelease
control portion of her sentence be set aside and asks this court order the same.
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2: THE TRIAL COURT ERRED IN ORDERING THAT THE APPELLANT’S VEHICLE
SHOULD BE FORFEITED
Appellant was convicted of two (2) crimes, trafficking and possession. The
underlying trafficking offense merged into the possession offense and the State chose
to proceed at sentencing on the possession offense. However, trafficking was the basis
for the vehicle forfeiture. In State v. Roper, 2013-Ohio-2176, 2013 Ohio App. LEXIS 2086,
2013 WL 2368766 (Ohio Ct. App., Summit County May 29, 2013), the Court stated:
Further, the same Court stated in State v. Burns, 2013-Ohio-4784, 2013 Ohio App.
LEXIS 4981, 2013 WL 5864626 (Ohio Ct. App., Summit County Oct. 30, 2013):
Additionally, we note that, despite the fact that the trial court
merged count two (kidnapping) with count one (aggravated
robbery), it impermissibly sentenced Mr. Burns on both counts and
on both attendant firearm specifications. See State v. Roper, 9th
Dist. Summit Nos. 26631, 26632, 2013-Ohio-2176, ¶ 9, 11. These
errors must be corrected on remand as well.
The Appellant agrees with the 9th District Court of Appeals of Summit County and
in relation to an offense for which the Appellant cannot be sentenced. The Appellant
asks this Court to reverse the forfeiture specification of the Trial Court’s sentencing
entry.
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3: THE TRIAL COURT ERRED IN OMITTING FROM THE SENTENCING ENTRY THE
FACT THAT THE OFFENSES OF POSSESSION OF HEROIN AND TRAFFICKING IN HEROIN WERE
ALLIED AND SHOULD MERGE
4: THE TRIAL COURT ERRED IN INCLUDING IN THE SENTENCING ENTRY THE IMPOSITION OF A
MANDATORY FINE EVEN THOUGH THE TRIAL COURT HAD PREVIOUSLY WAIVED THAT FINE
None of the Trial Court’s three (3) sentencing entries (dated July 10, 2014; August
15, 2014; and August 25, 2014) note that the Appellant’s offenses of trafficking and
possession were allied offenses and should merge. That error appears to be a clerical
error, as the Trial Court did note in the sentencing hearing that the offenses were allied
Further, in the sentencing hearing, the Trial Court ordered a mandatory fine of
$10,000.00. On July 9, 2014, Appellant’s Trial Counsel filed a motion to set aside the fine
because the Appellant was and is indigent. The Trial Court granted that motion and
ordered that the mandatory fine be waived on the same day. However, the Trial Court’s
sentencing entry imposes the mandatory $10,000.00 fine. That error also appears to be
a clerical error.
In State v. Qualls, 2012-Ohio-1111, 131 Ohio St. 3d 499, 967 N.E.2d 718, 2012 Ohio
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Further, in State v. Roper, 2013-Ohio-2176, 2013 Ohio App. LEXIS 2086, 2013 WL
2368766 (Ohio Ct. App., Summit County May 29, 2013), the 9th District Court of Appeals
stated:
Given the above, the Appellant asks this Court to order that the clerical errors
5. THE TRIAL COURT ERRED IN CONVICTING THE APPELLANT IN THE ABSENCE OF ANY EVIDENCE
THAT THE APPELLANT KNOWINGLY POSSESSED OR TRAFFICKED IN HEROIN
7. THE JUDGMENT OF THE TRIAL COURT SHOULD BE REVERSED BECAUSE THE JUDGMENT IS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND/OR PLAINLY IN ERROR
Appellant asserts that the evidence seized by Appellee State of Ohio was seized in
violation of the Appellant’s Constitutional rights conferred upon her by the Fourth and
Fourteenth Amendments of the U.S. Constitution, Article One, Section 14 of the Ohio
Constitution, as well as the case law interpreting those Constitutional provisions. State
v. Wilmoth (1986), 22 Ohio St.3d 251, 490 N.E.2d 123; U.S. v. Calandra (1974), 141 U.S. 338.
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Appellant asserts that the exclusionary rule should have applied to all evidence seized
The evidence seized from the Appellant and used by the Appellee State of Ohio
against Appellant at Trial was obtained by the State as a result of a warrantless search.
No exception to the requirement of a search warrant applies under the facts of this case.
The evidence which was introduced against the Appellant was 297 grams of heroin was
not found on Appellant’s person or even in the passenger area of Appellant’s vehicle.
Rather, it was found in a sock behind the tail light assembly of Appellant’s vehicle in a
void.
No heroin was found in Appellant’s direct possession or control and there was no
showing by the Appellee that Appellant knew that the heroin was hidden behind the tail
light assembly of Appellant’s vehicle. The Appellee certainly did not prove beyond a
trafficked in heroin.
(E) "Reasonable doubt" is present when the jurors, after they have
carefully considered and compared all the evidence, cannot say they
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are firmly convinced of the truth of the charge. It is a doubt based
on reason and common sense. Reasonable doubt is not mere possible
doubt, because everything relating to human affairs or depending
on moral evidence is open to some possible or imaginary doubt.
"Proof beyond a reasonable doubt" is proof of such character that
an ordinary person would be willing to rely and act upon it in the
most important of the person's own affairs.
The Supreme Court of Ohio delineated the role of an Appellate Court presented
with an argument regarding the sufficiency of evidence in State v. Jenks (1991), 61 Ohio
St.3d 259:
Trooper indicated that what initially drew his attention to the Appellant’s vehicle
was his observation that - although she was “traveling around the posted speed limit of
55 mph,” the Appellant slowed to “well below” the posted speed limit prior to passing
his stationary location. Trooper indicated that he considered Appellant’s slowing down
as a possible criminal indicator. But consider this: As Trooper was sitting stationary and
observing traffic around 3:00 a.m. on County Road 21 and State Route 93, it is logical that
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any prudent driver would slow their vehicle down significantly upon approaching
another vehicle ahead of them sitting perpendicular to their lane of travel. This is
especially true given that many sleepy and/or impaired drivers are out at that time of
night and the Appellant had no means of knowing if the other driver was going to pull
out in front of her. Further, the State presented no evidence that the Appellant even
knew that the vehicle sitting perpendicular to the road was a State Trooper as Appellant
the road was a reasonable action that should not have been interpreted as a criminal
indicator by Trooper.
Trooper continued by stating that he had his “high beams” on and observed the
Appellant sitting straight up in her seat with both hands gripping the steering wheel
tightly and that Appellant abruptly looked away from Trooper as she drove past his
vehicle. Trooper indicated that he believed that Appellant’s holding of the steering
wheel with two (2) hands, sitting up straight and looking away from him were all
criminal indicators.
operating her vehicle just as a person would be taught in drivers’ class - both hands on
the wheel and sitting up straight. A driver nonchalantly driving slumped down with one
(1) hand on the wheel would certainly appear to be less attentive than a driver who is
driving safely. As Trooper had no reason to be suspicious of any possible drug related
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activity on Appellant’s part at this time (Trooper didn’t even know she was from Detroit
as she passed Trooper’s vehicle), Trooper should have only been looking for driving
part until Trooper had followed her for approximately three (3) miles - “in hopes to
All of Trooper’s observations and actions - from the time he first observed
Appellant’s vehicle coming towards him until Trooper had followed Appellant for three
(3) miles - are indicators of a law enforcement officer looking for a pretextual reason to
Right up until Appellant failed to use her turn signal about three (3) miles down
the road, Appellant had done nothing to justify an stop whatsoever. It is curious that
Trooper was so interested in Appellant as she had not broken any law whatsoever.
Trooper had no reason to pull in behind Appellant and follow her at all, much less to
follow her for three (3) miles, hoping beyond hope that Appellant would commit a minor
Appellant acknowledges that this Court’s ruled in State v. Dennewitz, 1999 Ohio
App. LEXIS 5327, 1999 WL 1001109 (Ohio Ct. App., Ross County Nov. 5, 1999), that because
the traffic stop in Dennewitz was based on probable cause that a traffic offense was
committed, the fact that the officer used the traffic stop as a pretext to confirm his
hunch that appellee was involved in illegal drug activity was irrelevant and insufficient
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The Appellant asks the Court to consider that her stop is distinguishable from the
In Dennewitz, the officer followed the Defendant for “several blocks”. In this case,
Trooper followed the Appellant for three (3) miles. That is a significant difference.
Would it be acceptable for a law enforcement officer to follow closely behind a person
for ten (10) miles looking for the person to commit a traffic violation? How about fifty
(50) miles? Five hundred (500) miles? Even when there has been no legitimate
indication of criminal activity? Once the suspect arrives at their destination, can the
Trooper follow her into the residence in hopes that she might take drugs out of her
pocket?
It would appear that Appellant would have been wise to simply pull over in the
first 2.9 miles after Trooper pulled in behind her and allow Trooper to drive by. After
all, Trooper had no basis to stop Appellant during the first 2.9 miles. Nevertheless, for
whatever reason, after three (3) miles of having Trooper on her rear bumper, Appellant
made a minor error and violated a traffic law - thereby resulting in her arrest for failure
to appear... and eventually with being charged with the drug crimes.
It is a generally accepted idea that all people - criminal or not - tend to get
nervous when a law enforcement officer is driving closely behind them. Nervousness
tends to lead to mistakes - mistakes such as not remembering to use a turn signal or
weaving a little bit in the lane, resulting in a tire touching the white line.
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Appellant asserts that it is not wise and an unreasonable public policy to allow law
enforcement officers to follow drivers who have committed no crime for miles in hopes
that they will commit a traffic violation at some point in the sweet by and by.
Of significant importance in this case is State v. Robinette, 80 Ohio St. 3d 234, 685
N.E.2d 762, 1997 Ohio LEXIS 2970, 1997-Ohio-343 (Ohio 1997). In Robinette, the Ohio
Further, in State v. Hamilton, 2011-Ohio-3835, 2011 Ohio App. LEXIS 3226, 2011 WL
3359984 (Ohio Ct. App., Cuyahoga County Aug. 4, 2011), the Court considered several
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specifically held that police officers may search a vehicle incident
to arrest only where the suspect is within reaching distance of
the vehicle, or there is reason to believe evidence of the
arresting offense will be present in the vehicle. Id. at 491. This
court has since upheld the reasoning outlined in Gant, see State v.
Thomas, Cuyahoga App. No. 91891, 2009 Ohio 3461.
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In this case, Trooper pulled Appellant over for a minor traffic violation. Nothing
that happened during the stop gave Trooper a reasonable, articulable suspicion that the
Appellant might be trafficking in heroin or that Appellant possessed heroin. The mere
fact that Appellant had a warrant out for non-appearance in a marijuana residue case
in no way implies that the Appellant might have been trafficking in or possessing large
quantities of heroin. Trooper first arrested Appellant in relation to the warrant and
ONLY THEN requested that a K-9 unit be brought to search Appellant’s vehicle for drugs.
Were it not for the failure to appear warrant, the Appellant could have left
immediately after receiving a ticket for violating a minor traffic law. However,
Appellant was placed under arrest for failure to appear. At that point, Trooper’s primary
concern should have been to process Appellant in relation to the failure to appear
warrant. Instead, Trooper asserted that he had probable cause to search Appellant’s
vehicle because she “had a warrant for her arrest within the pickup radius...”.
Because Trooper had already placed Appellant under arrest for the outstanding
warrant, there was no reason to request a warrantless K-9 search of Appellant’s vehicle.
The Appellant was already in custody and had no access to her vehicle anymore.
Trooper was - correctly - going to let Appellant have someone come and pick up
Appellant’s vehicle. That fact is further evidence in support of the idea that there was
no basis for Trooper to have Appellant’s vehicle searched by a K-9 unit. Once it became
clear that Appellant could not find anyone to pick up the vehicle, Trooper should have
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Appellant’s vehicle upon the vehicle being impounded. If Trooper believed that he had
a reasonable, articulable suspicion that illegal drugs might be in Appellant’s vehicle, then
Trooper could have asked the Court to issue a search warrant for the Appellant’s vehicle
As such, Trooper did not have probable cause to conduct a warrantless search of
Appellant’s vehicle. The heroin that was found in Appellant’s vehicle was not found in
the passenger area, but rather, was found inside the tail light assembly - which was not
accessible from inside of the vehicle. The evidence from the warrantless search should
Further, there was no evidence presented at trial that would tend to prove that
Appellant was aware that the heroin was hidden in her vehicle behind the rear light
cover. If the State did not prove that Appellant was aware that the heroin was in her
vehicle, then the State could not prove the “knowingly” requirement of R.C. § 2925.11
or of R.C. § 2925.03.
Finally, for all of the above reasons, the Appellant’s convictions were in plain
CONCLUSION
WHEREFORE, for all of the above reasons, Appellant asks the Court to reverse the
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Respectfully submitted,
_________________________________
Robert W. Bright (0081612)
278 S. 5th Ave.
Middleport, Ohio 45760
740-304-0688
740-994-5178 (FAX)
robwbright@yahoo.com
Attorney for Appellant
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true copy of the foregoing was served this
10th day of October, 2015 by U.S. Mail to Brigham M. Anderson, Lawrence County
Prosecuting Attorney, 1 Veterans Square, Ironton, Ohio 45638.
_________________________________
Robert W. Bright (0081612)
Attorney for Appellant
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