Opinion
C. A. 30287
06-30-2023
STATE OF OHIO Appellee v. JOSLYN A. MOBLEY Appellant
SENECA KONTURAS, Attorney at Law, for Appellant. SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant Prosecuting Attorney, for Appellee.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR-2019-06-1959
SENECA KONTURAS, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
DONNA J. CARR, JUDGE
{¶1} Defendant-Appellant Joslyn A. Mobley appeals the judgment of the Summit County Court of Common Pleas. This Court affirms in part, reverses in part, and remands the matter for proceedings consistent with this decision.
I.
{¶2} Following a May 29, 2019 traffic stop, Mobley was indicted on one count of trafficking in marijuana in violation of R.C. 2925.03(A)(2), (C)(3), a felony of the fifth degree and one count of possession of marijuana, a fourth degree misdemeanor. A forfeiture specification, related to $419.00 found during the stop, accompanied the trafficking charge. The second count was subsequently amended to a minor misdemeanor.
{¶3} Ultimately, in March 2022, the trafficking charge and accompanying specification were tried to a jury and the minor misdemeanor was tried to the bench. The jury found Mobley guilty of the trafficking charge but found the money was not subject to forfeiture. The trial court found Mobley guilty of the possession charge. Mobley was sentenced to a year of community control with a reserved prison sentence of one year. The sentencing entry reflects a $250.00 fine as a sentence for the minor misdemeanor. The entry also states that two days of time served in the Summit County Jail would satisfy the $250.00 fine and costs associated with the case. Mobley moved to stay exaction of her sentence, which the trial court granted.
{¶4} Mobley has appealed, raising four assignments of error for our review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN FAILING TO GRANT DEFENDANT'S MOTIONS FOR ACQUITTAL UNDER CRIM.R. 29, AND FOR ENTERING JUDGMENT ON THE VERDICT WHERE IT WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.
{¶5} Mobley argues that the trial court erred in denying her Crim.R. 29 motion with respect to the trafficking in marijuana charge and that the verdict was not supported by sufficient evidence. Mobley argues that the evidence only supports that the marijuana present was for personal use and that the record does not demonstrate that Mobley knowingly trafficked in marijuana.
{¶6} Crim.R. 29(A) provides:
The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state's case.
{¶7} When reviewing the sufficiency of the evidence, this Court must review the evidence in a light most favorable to the prosecution to determine whether the evidence before the trial court was sufficient to sustain a conviction. State v. Jenks, 61 Ohio St.3d 259, 279 (1991).
An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The 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.Id. at paragraph two of the syllabus.
{¶8} R.C. 2925.03(A)(2) provides that "[n]o person shall knowingly * * * [p]repare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance or a controlled substance analog, when the offender knows or has reasonable cause to believe that the controlled substance or a controlled substance analog is intended for sale or resale by the offender or another person." R.C. 2901.22(B) provides that:
A person acts knowingly, regardless of purpose, when the person is aware that the person's conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when the person is aware that such circumstances probably exist. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person subjectively believes that there is a high probability of its existence and fails to make inquiry or acts with a conscious purpose to avoid learning the fact.Distribute means "to deal in, ship, transport, or deliver but does not include administering or dispensing a drug." See R.C. 2925.01(A); R.C. 3719.01(F).
{¶9} "Drug trafficking may be proven by circumstantial evidence." State v. Lopez-Olmedo, 9th Dist. Lorain No. 21CA011745, 2022-Ohio-2817, ¶ 33. "This Court and our sister courts have held that the convergence of illegal drugs, drug paraphernalia (including baggies), and large sums of cash permit a reasonable inference that a person was preparing drugs for shipment." (Internal quotations and citations omitted.) Id.
{¶10} Officer Matt Bacher with the Macedonia Police Department was on patrol on May 29, 2019, when he noticed a silver Buick with windows that he believed were so darkly tinted that they violated Ohio law. Officer Bacher then initiated a traffic stop.
{¶11} Mobley was the driver and there was also a front seat passenger. Officer Bacher approached the passenger side of the vehicle and immediately noticed an odor of marijuana coming from the vehicle. Officer Bacher testified that, when Mobley was questioned about the odor of marijuana, she seemed puzzled. Officer Bacher asked if there were any marijuana roaches in the ashtray. Mobley handed Officer Bacher the ashtray and there was a roach in it. Officer Bacher also noticed marijuana shake on the passenger door. Based on his findings, Officer Bacher requested a second officer to the scene as Officer Bacher planned to search the vehicle.
{¶12} Mobley's phone rang and Officer Bacher allowed her to answer it while he was waiting for the second officer to arrive. Mobley went to retrieve her phone from the purse on the floor, but it seemed to be taking her a long period of time to do so. As Mobley was rummaging in her purse, the odor of marijuana became stronger. Officer Bacher asked Mobley what she was reaching for. Mobley closed her knees and pulled out a small, zippered purse that she put to her left hip. Mobley informed Officer Bacher that she was still reaching for her phone, but Officer Bacher testified that the phone was near the top of her large purse. Mobley then put the purse on top of her lap. Officer Bacher asked Mobley to hand him the purse several times, but Mobley ignored him.
{¶13} Sergeant Michael Plesz then arrived on the scene. At that point, Mobley was asked to step out of the vehicle. As she did so, Mobley passed the zippered purse towards the passenger. The passenger did not take the purse. Mobley and the passenger were then placed in the back of separate police cars. Mobley was placed in Officer Bacher's car and the passenger was put in Sergeant Plesz's vehicle.
{¶14} The police then began to search the car. Inside Mobley's purse there were multiple packages containing marijuana, some of which were vacuum sealed, and a digital scale, which Officer Bacher testified was used for weighing marijuana. Officer Bacher did not know whether the scale was operable. In addition, two smaller zippered purses were found; one containing $419 and another containing 42 empty small wax paper bags and one wax paper bag containing a small amount of marijuana. A pair of rubber gloves was found in the purse containing the wax paper bags. The currency consisted of one $100 bill, one $50 bill, ten $20 bills, three $10 bills, five $5 bills, and fourteen $1 bills. The small purse containing the money was found in the car; it was the purse Mobley was passing towards the passenger when Mobley was exiting the vehicle. The other purse with the wax paper bags was found inside Mobley's large purse. Two of the vacuum sealed packages containing marijuana were still sealed and weighed 33 grams; the remaining two were partially opened and contained varying amounts of marijuana. In total, the packages containing marijuana weighed 110 grams, as weighed by the police.
{¶15} Officer Bacher described that quantity as a large amount; however, he acknowledged that it was possible that that amount could be for personal use. Office Bacher found it suspicious that Mobley was traveling with sealed bags, partially opened bags, the empty bags, and the scale. He testified that if she had just bought the marijuana for her own use, he would expect it to be just sealed bags that she was taking home.
{¶16} Officer Bacher initially indicated that there were no rolling papers or glass bowls for smoking the marijuana, although he later clarified that a couple rolling papers were located in the search. Nonetheless, he maintained that, based on the totality of the circumstances, which included some of the packages being vacuum sealed, the amount of cash present, the presence of the empty 42 small bags, and the digital scale, he believed that the marijuana was going to be packaged and redistributed. Mobley's phone was also seized but no information related to trafficking was recovered from it.
{¶17} When asked to describe the types of supplies police look for in trafficking cases, Sergeant Plesz explained that "[w]hen people are breaking down larger quantities of drugs, they're usually putting it into smaller packages. That way it can be redistributed." With respect to the instant matter, Sergeant Plesz observed that, "[l]ooking at the [wax paper] packages here, especially having one of the packages of marijuana packaged in it, showing the larger amount that is broken down into these smaller packages for sale." Based on the amount of drugs found, the amount of money, and the presence of drug paraphernalia, Sergeant Plesz believed that the matter was a drug trafficking case. Sergeant Plesz noted that having the small denominations of money could then be used to make change for sales. Further, while Sergeant Plesz admitted that it was possible that the wax paper bags could be used to divvy up personal use marijuana, he also stated that, in his experience, it was not common to do so. Also, Sergeant Plesz did not believe that the quantity of marijuana Mobley had was for personal use. Sergeant Plesz found it unlikely that Mobley smoked an ounce a day, but acknowledged if she actually did then it could be for personal use.
{¶18} Mobley was asked about the marijuana and she indicated that she smoked about an ounce a day. Officer Bacher commented to Mobley that that was a lot of marijuana to smoke in a day. When asked about the currency, Mobley indicated that she was not working but sometimes did hair. Mobley was arrested and the passenger was allowed to leave the scene. The evidence found was put into Mobley's large purse for transport to the station.
{¶19} Both officers had dash-mounted cameras and body-worn microphones. The footage from both was admitted into evidence along with various photos.
{¶20} Erin Miller from Ohio Bureau of Criminal Investigation testified concerning testing she conducted on the suspected marijuana found in the vehicle. Ms. Miller testified that based on the definition of marijuana in Ohio before July 30, 2019, the plant matter found was marijuana. Ms. Miller indicated that beginning on July 30, 2019, Ohio began differentiating between hemp and marijuana. Hemp has a THC content of less than 0.3 percent. The marijuana was not tested to determine whether it qualified as hemp due to the timing of the offense. Ms. Miller testified that she was required to test based on the date of the offense, not the state of the law at the time of the testing. Absent the packaging the marijuana was in, the marijuana weighed a total of 78.90 grams.
{¶21} Both Mobley and the passenger testified for the defense. Mobley testified that she had numerous health problems at the time of the stop and that she was using marijuana to address her health issues. She indicated that she did not have a medical marijuana card because doing so would interfere with her ability to continue to pursue her career in social work. At the time, Mobley did hair and also delivered food, although she did not inform the officers that she delivered food. Mobley testified that she had hair rollers in the back of the car and that her clients often paid in cash. She also explained that she had a lot of the materials for delivering and packaging the food in her back seat, including Styrofoam containers, foil, plastic wrap, and gloves. Mobley used the wax paper bags to store condiments to give to customers with their food orders. Mobley stated that she would receive cash tips.
{¶22} Mobley testified that, on May 29, 2019, she was going to check on her goddaughter when she was pulled over. Mobley asserted that the air conditioning in her vehicle was not working at the time, it was a warm day, and so her windows would have been down. Accordingly, she did not think that the officer could see the tint status of her front windows. She believed that she was stopped because the officer thought that her passenger was an African American man, because the passenger was a woman with a short haircut. Mobley maintained that the officer focused on questioning the passenger instead of Mobley. Mobley asserted that parts of the video of the stop were altered or cut out. She also maintained that the police planted evidence which was evidenced by the police not looking through what they found in the car in view of the dash camera. Mobley indicated that the officers took things in her car and packaged them in a way to look like she was trafficking. Mobley asserted that she did not know where the digital scale came from, it was not hers, and that it was put in her purse so that she would be charged with a felony. Mobley also indicated that the gloves and the wax paper bags were not in her purse and were instead in the back with food delivery materials. She believed that the officers filled one of the wax paper bags with marijuana to further implicate her.
{¶23} Mobley testified that the marijuana was for her own personal use and that she was not preparing it for distribution and was not distributing or selling it.
{¶24} The passenger also testified at trial. The passenger confirmed that the front windows were down and that she felt that the officer spent a lot of time directing questions at her instead of Mobley. The passenger described the officer as being condescending. The passenger verified that Mobley was involved in food deliveries and had items related to that in the car. The passenger denied using marijuana at that time and did not have any on the day of the stop. The passenger testified that her only belongings that were with her were her phone and her keys.
{¶25} Viewing the evidence in a light most favorable to the State, we conclude that sufficient evidence was presented to support a conviction for trafficking in marijuana. Reviewing a Crim.R. 29 motion or a challenge to the sufficiency of the evidence does not involve resolving conflicts in the evidence or assessing the credibility of witnesses. See State v. Oliver, 9th Dist. Summit No. 29535, 2021-Ohio-4153, ¶ 20. Here, there was evidence that Mobley possessed what was described by police as a large amount of marijuana. In fact, Sergeant Plesz testified that he did not believe that the amount Mobley had was for personal use. In addition, the way that the marijuana was packaged also raised Officer Plesz's concerns that the marijuana was for repackaging and distribution and not personal use. In addition to the marijuana itself, police also found numerous wax paper bags, including one which contained a small amount of marijuana. Further, a digital scale and a significant amount of cash in numerous denominations were recovered from Mobley's purse. Both Officer Bacher and Sergeant Plesz discussed how the combination of items found in Mobley's belongings led them to believe that Mobley was engaged in trafficking marijuana.
{¶26} Given the evidence before this Court, we cannot say that Mobley has demonstrated that the trial court erred in denying her Crim.R. 29 motion or that the verdict was based upon insufficient evidence. See Lopez-Olmedo, 2022-Ohio-2817, at ¶ 33 (noting that "the convergence of illegal drugs, drug paraphernalia (including baggies), and large sums of cash permit a reasonable inference that a person was preparing drugs for shipment[]"); State v. Haydon, 9th Dist. Summit No. 27737, 2016-Ohio-4683, ¶ 19. While the evidence was largely circumstantial, as noted above, "[d]rug trafficking may be proven by circumstantial evidence." Lopez-Olmedo, 2022-Ohio-2817, at ¶ 33. Moreover, "[b]ecause direct evidence of mental state is not available, proof of a culpable mental state must be derived from circumstantial evidence * * *." (Internal quotations and citations omitted.) State v. Myers, 9th Dist. Wayne No. 21AP0027, 2022-Ohio-991, ¶ 10.
{¶27} Mobley's first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED IN ENTERING JUDGMENT ON THE VERDICT AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶28} Mobley argues in her second assignment of error that the guilty verdict on the drug trafficking charge was against the manifest weight of the evidence. Mobley argues that, given the jury's finding that forfeiture of the $419 was not warranted, the record does not support a guilty verdict on the drug trafficking charge.
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 and a new trial ordered.State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986).
{¶29} "When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a 'thirteenth juror' and disagrees with the factfinder's resolution of the conflicting testimony." State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982). An appellate court should exercise the power to reverse a judgment as against the manifest weight of the evidence only in exceptional cases. Otten at 340. "[W]e are mindful that the [trier of fact] is free to believe all, part, or none of the testimony of each witness." (Internal quotations and citations omitted.) State v. Gannon, 9th Dist. Medina No. 19CA0053-M, 2020-Ohio-3075, ¶ 20. "This Court will not overturn a conviction on a manifest weight challenge only because the [trier of fact] found the testimony of certain witnesses to be credible." Id.
{¶30} Essentially Mobley argues that the jury must have concluded that the $419 was not connected to the marijuana found in the search. Thus, Mobley maintains that, considering the remainder of the evidence, the jury lost its way in finding Mobley guilty of trafficking in marijuana. However, we conclude that, after considering the entire record, Mobley has not demonstrated the verdict was against the weight of the evidence.
{¶31} Even aside from the currency, substantial evidence was presented that supports that Mobley was engaged in trafficking marijuana. There was testimony that the amount of marijuana present was inconsistent with personal use. Further, the packaged marijuana was present in different amounts, and only some of it was in sealed packages. Office Bacher testified that if Mobley had just bought the marijuana for her own use, he would expect it to be just sealed bags that she was taking home as opposed to traveling with sealed bags, partially opened bags, and the abundance of small empty wax paper bags. In addition, the numerous small empty wax paper bags could be used to distribute small amounts of marijuana; a fact which was supported by the presence of one wax paper bag actually filled with marijuana. Finally, a digital scale was also recovered from Mobley's purse. Taken together, particularly when considered along with the officers' testimony concerning their experiences of encountering similar evidence, the jury was not unreasonable in finding Mobley guilty.
{¶32} While Mobley denied trafficking in marijuana and presented an alternate explanation for the presence of the items, the jury was not required to believe her. The jury may have very well discounted her allegations that the police tampered with evidence in order to secure her conviction. Instead, the jury may have found the officers' explanation of the circumstances more credible. See Gannon, 2020-Ohio-3075, at ¶ 20. Overall, Mobley has not demonstrated that her conviction for trafficking in marijuana is against the manifest weight of the evidence.
{¶33} Mobley's second assignment of error is overruled.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED IN FAILING TO ADVISE DEFENDANT OF THE POSSIBILITY OF POST-RELEASE CONTROL DURING THE SENTENCING COLLOQUY.
{¶34} Mobley asserts in her third assignment of error that the trial court erred in failing to provide the post-release control notification required by R.C. 2929.19(B)(2)(e) at the sentencing hearing.
{¶35} R.C. 2929.19(B)(2)(e) provides that, "[s]ubject to division (B)(3) of this section, if the sentencing court determines at the sentencing hearing that a prison term is necessary or required, the court shall * * * [n]otify the offender that the offender may be supervised under section 2967.28 of the Revised Code after the offender leaves prison if the offender is being sentenced for a felony of the third, fourth, or fifth degree that is not subject to division (B)(2)(d) of this section." It goes on to state that "[t]his division applies with respect to all prison terms imposed for an offense of a type described in this division, including a term imposed for any such offense that is a risk reduction sentence, as defined in section 2967.28 of the Revised Code." R.C. 2929.19(B)(2)(e).
{¶36} Thus, a trial court is only required to give the notification to the specified offenders if the trial court is imposing a prison term. See id; see also State v. Bravo, 9th Dist. Summit No. 27881, 2017-Ohio-272, ¶ 42 ("The issue of post-release control arises when the trial court sentences a criminal defendant to a term of imprisonment."); State v. Hardy, 5th Dist. Fairfield No. 17CA 11, 2017-Ohio-9208, ¶ 19. Here, the trial court did not sentence Mobley to prison for the trafficking in marijuana charge. Instead, it imposed a sentence of one year of community control with a reserve prison sentence of 12 months.
{¶37} While it is true that the trial court mistakenly included information concerning postrelease control in its sentencing entry when it did not provide any notification at the sentence hearing, it can omit the erroneous language when it issues a new sentencing entry to correct the errors discussed in the section addressing Mobley's fourth assignment of error.
{¶38} Mobley's third assignment of error is overruled.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT ERRED IN IMPOSING A FINE OF $250 ON DEFENDANT IN RELATION TO A MINOR MISDEMEANOR CONVICTION.
{¶39} Mobley argues in her fourth assignment of error that the trial court erred in imposing a $250 fine for the minor misdemeanor. The State has conceded error. In addition, the State notes that the trial court did not mention the minor misdemeanor at the sentencing hearing and that the trial court did not comply with R.C. 2947.14 in determining that two days of time served in the Summit County Jail would satisfy the $250.00 fine.
{¶40} The maximum fine for a minor misdemeanor is $150. See R.C. 2929.28(A)(2)(v). Accordingly, the fine of $250 set forth in the sentencing entry is contrary to law. Given the foregoing, we conclude that resentencing on the minor misdemeanor charge is warranted. Because of that, there is no need to address the State's remaining concerns; the trial court will be charged with properly applying the relevant law upon remand.
{¶41} Mobley's fourth assignment of error is sustained.
III.
{¶42} Mobley's first through third assignments of error are overruled. Mobley's fourth assignment of error is sustained. The judgment of the Summit County Court of Common Pleas is affirmed in part, reversed in part, and the matter is remanded for proceedings consistent with this decision.
Judgment affirmed in part, reversed in part, and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed equally to both parties.
HENSAL, P. J. FLAGG LANZINGER, J. CONCUR.