State v. Milliner

Dyke, Judge. Defendant-Appellant, Lloyd Milliner, alias “Floyd Miller,” appeals his conviction for aggravated drug trafficking (R.C. 2925.03[A][10]); aggravated robbery (R.C. 2911.01[A][1]) with a firearm specification; permitting drug abuse (R.C. 2925.13); and possessing criminal tools (R.C. 2923.24). In nine assignments of error, appellant claims that he was denied due process of law. Upon review, we find his assignments of error to be without merit. The judgment of the trial court is affirmed. Five witnesses testified on behalf of the state. Accomplice, Accra Debose, testified that on the morning of January 25, 1993, appellant recruited him, Umar Clark, Maurice Marbury and appellant’s half- *264 brother, Robert Bledsoe, to deliver five kilos of cocaine for $105,000 to $110,000 to Marty Goldfab, a contact identified by appellant’s cousin, Janissa Jordan. Debose stated that appellant further directed them to steal the money after Jordan delivered the drugs. Debose testified that appellant directed Clark to drive the delivery car, Jordan to carry the drugs to the buyer’s car, Bledsoe to drive the robbery car, and Marbury to hold a gun to the buyer’s head while he (Debose) took the money. Debose identified the gun and stated that he saw Marbury take the weapon from a brown station wagon parked outside appellant’s mother’s house, a location where appellant met with participants before they left for the scene of the transaction. Debose stated that as he fled from the scene after the sale and robbery, he saw appellant at a nearby intersection, in the station wagon from the gun was taken. Debose admitted that he lied in the first written statement given to the police, as he failed to describe appellant’s involvement. However, he testified that his second written statement and testimony at trial were true. Appellant’s cousin, Janissa Jordan, testified that her boyfriend, Marty Goldfab, asked her if she knew anyone who could supply him with five to ten kilos of cocaine. She stated that on Friday, January 22, 1993, Marty was at her home and that she placed a call to appellant, who was at the home of a mutual cousin named Lasonya Bryant. 1 Jordan testified that she told appellant over the phone that Marty was interested in purchasing cocaine. She stated that appellant told her that he would deal with Marty. She also stated that she handed the phone to Marty, who spoke with appellant about the deal at that time. Jordan corroborated Debose’s testimony that appellant met with the participants at his mother’s house prior to the planned sale and robbery. Jordan stated that appellant told her to ride with Clark to a BP station on 130th Street and to deliver the drugs to Marty. After her arrest, Jordan gave a written statement to the police and testified consistent with that statement at trial. She also received a reduced sentence in exchange for her testimony. Drug Enforcement Administration (“DEA”) agent Tony Sargin testified that Jordan’s boyfriend, Marty Goldfab, served as a reliable information source. He stated that Marty informed him of the deal and gave him the phone number of an individual named “Floyd.” Sargin stated that he contacted “Floyd” and, via taped phone conversations, “Floyd” agreed to sell him five kilos of cocaine for $105,000. These conversations were played for the jury. Sargin testified that on January 25, 1993, Janissa Jordan carried a duffle bag to his car. He explained that he became concerned that something was going wrong with the deal because *265 the bag contained three rather than five packages and because the packages were wrapped in an unusual manner. He stated that immediately after the delivery, appellant’s half-brother, Robert Bledsoe, rammed the car he was driving into his car, pinning it against a rear utility pole. Sargin stated that Maurice Marbury then jumped out of Bledsoe’s car, held a gun to his head, and demanded money. Sargin stated that he took control of the weapon and that all five suspects were arrested. Investigating Officer Henry O’Bryant testified that Jordan and Bledsoe implicated appellant as the mastermind of the deal in written statements made immediately after their arrest. Five witnesses testified on behalf of the defense. Three witnesses testified as to appellant’s good character. Lasonya Bryant, appellant’s cousin, testified that the reason Accra Debose and Umar Clark came to her apartment on the morning of the sale was because she had just begun dating Debose. On rebuttal, however, Debose denied knowing Bryant and stated that he and Clark went to Bryant’s apartment because appellant directed him to pick up the cocaine there. On cross-examination, Bryant admitted that she allowed Clark, a total stranger, to make several phone calls and that Clark told her that if anyone called looking for “Floyd,” he (Clark) would call or beep them back. Appellant took the stand and denied involvement in the crimes. He stated that he let Clark borrow his car and that he was picking up his wife’s car at her place of. employment at the time of the sale and robbery. He identified the voice on the tape, alleged to be “Floyd,” as the voice of his long-time friend, Umar Clark. He also admitted giving his alias name to officers who stopped him for speeding less than an hour before the sale. 2 The jury found appellant guilty of all but the felonious assault charge. The instant appeal followed. I “The defendant was denied due process of law when he was convicted under the first count of the indictment for selling or offering to sell cocaine when the actual substance involved in the transaction was counterfeitt [sic ].” In his first assignment of error, appellant, relying on R.C. 1.51 and State v. McDonald (1987), 31 Ohio St.3d 47, 31 OBR 155, 509 N.E.2d 57, argues that the more specific statute of trafficking in a counterfeit controlled substance, to wit, R.C. 2925.37, applies to his conduct because cocaine was never mentioned *266 during taped telephone conversations and because the substance actually transferred was counterfeit. 3 Appellant’s argument is without merit. In State v. Chippendale (1990), 52 Ohio St.3d 118, 556 N.E.2d 1134, the Supreme Court of Ohio specifically limited the application of R.C. 1.51 in the following manner: “R.C. 1.51 comes into play only when a general and a special provision constitute allied offenses of similar import and additionally do not constitute crimes committed separately or with a separate animus for each crime.” (Emphasis omitted.) Id. at 120, 556 N.E.2d at 1137. In State v. Mughni (1987), 33 Ohio St.3d 65, 514 N.E.2d 870, the Supreme Court of Ohio determined that knowingly selling or offering to sell a controlled substance, R.C. 2925.03(A)(1), and knowingly selling or offering to sell a counterfeit controlled substance, R.C. 2925.37(B), were not allied offenses of similar import. Hence, R.C. 1.51 does not apply to the instant case. The fact that cocaine was not mentioned in tape-recorded conversations is unpersuasive. Debose and Jordan testified that appellant set up the entire transaction and told them that the deal involved five kilos of cocaine. The purchase price of $105,000, set by appellant, confirms the fact that appellant intended those he involved in the scheme to believe that the substance to be transferred was cocaine. Hence, appellant, through his operatives, knowingly offered to sell cocaine in violation of R.C. 2925.03(A)(1). Appellant’s first assignment of error is overruled. II “The defendant was denied due process of law when the court failed to instruct the jury as to all of the elements needed to be proven to convict the defendant of selling or offering to sell cocaine.” In his second assignment of error, appellant claims that the court failed to instruct the jury on the requisite mental state of “knowingly” selling or offering to sell cocaine. • Appellant’s assignment of error is without merit. The record demonstrates that the court defined the term “knowingly” and advised jurors that before they could convict appellant on any of the indicted offenses, they must find that the defendant acted “knowingly.” 4 Moreover, appellant failed to object *267 to such alleged omissions. Accordingly, he has waived any such error on review. See Crim.R. 30 and State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804. Appellant’s second assignment of error is overruled. Ill “The defendant was denied due process of law when the court without notice changed this case to a conspiracy.” In his third assignment of error, appellant claims that because he was indicted and defended as a principal offender, he was prejudiced when the court, without notice, gave jury instructions on the theory of conspiracy. Appellant’s assignment of error is without merit. The record demonstrates that the court instructed the jury not on the theory of conspiracy but on the theory of complicity, with conspiracy being one element of that offense. 5 “It is well settled that the state may charge and try an aider and abettor as a principal and if the evidence at the trial reasonably indicates that the defendant was an aider and abettor rather than a principal offender, a jury instruction may be given; thus, a defendant, through his attorney, has legal notice of the possibility that the jury might be given a complicity instruction, even thought he has been charged and tried as a principal offender.” Hill v. Perini (C.A.6, 1986), 788 F.2d 406, 408. Sufficient evidence of solicitation, procurement, aiding, abetting and conspiracy was adduced at trial to warrant an instruction on complicity. Appellant’s third assignment of error is overruled. *268 IV “The defendant was denied due process of law when the jury was instructed on a conspiracy and the evidence, at most, shows a conspiracy but defendant was sentenced to a term of life imprisonment and other terms of imprisonment as if he committed the substantive offenses.” In his fourth assignment of error, appellant claims that the court instructed the jury on the theory of conspiracy and, hence, the lesser penalties specified in R.C. 2923.01(J) should apply. 6 Once again, appellant’s assignment of error is inaccurate and without merit. As stated supra, the trial court instructed the jury not on a theory of conspiracy, but on a theory of complicity. Contrary to appellant’s assertions, he was convicted as an accomplice, not as a conspirator. R.C. 2923.01(E), conspiracy, provides in relevant part that: “This section does not define a separate conspiracy offense or penalty where conspiracy is defined as an offense by one or more sections of the Revised Code, other than this section.” Committee Comments which immediately follow the above-cited section provide in relevant part that: “Although this section does not replace any other conspiracy offenses defined in the Revised Code, the rules, exceptions, and defenses defined in this section are expressly made applicable to such other offenses.” (Emphasis added.) Thus, R.C. 2923.01(E) provides that if “conspiracy” is defined as an offense by another section of the Revised Code, to wit, the complicity section, then R.C. 2923.01(J) is specifically excepted as the applicable penalty provision and the penalty provision of the other defining section applies. The penalty provision for complicity, to wit, R.C. 2923.03(F), provides that: “Whoever violates this section is guilty of complicity in the commission of an offense, and shall be prosecuted and punished as if he were a principal offender.” (Emphasis added.) Hence, appellant was properly sentenced as a principal on four of the five offenses for which he was convicted. His fourth assignment of error is overruled. V “The defendant was denied due process of law when the court made an obvious misstatement of the law[;] based upon this misstatement of the law the defendant is entitled to a judgment of acquittal.” *269 Appellant’s fifth assignment of error is without merit. The record fails to demonstrate that the court misstated the law. While page 427 of the transcript demonstrates the word “acquitted” instead of the correct word “convicted,” an affidavit submitted by the court reporter indicates that the error was a transcrip-' tion rather than an instruction error. Hence, the jury received the proper instruction. Appellant’s fifth assignment of error, is overruled. VI “The defendant was denied due process of law when the court permitted a conviction to result from improper inducements made to witnesses for the prosecution.” In his sixth assignment of error, appellant claims that the court improperly permitted the state to propose a contingency agreement, whereby Debose and Jordan would receive reduced sentences if the state was successful in obtaining a conviction. Appellant’s argument is unpersuasive. The record demonstrates that Debose and Jordan entered their guilty pleas and agreed to testify for the state on the day before trial. The record fails to demonstrate that their sentence reductions were contingent on the outcome of the trial. The only condition imposed on their sentence reductions by the state was that their testimony had to be truthful. Appellant’s sixth assignment of error is overruled. VII “The defendant was denied due process of law when the court overruled motions for judgment of acquittal and failed to grant a new trial in this case.” In his seventh assignment of error, appellant claims that the evidence presented by the state was insufficient to support the jury’s verdict. “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.” (Citation omitted.) State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus. A reviewing court will not reverse a jury verdict where there is substantial evidence upon which a jury could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt.” State v. Eley (1978), 56 Ohio St.2d 169, 10 O.O.3d 340, 383 N.E.2d 132, syllabus. *270 Accra Debose and Janissa Jordan testified that appellant controlled and directed every aspect of the drug sale and robbery. Jordan and appellant’s half-brother, Bledsoe, implicated appellant immediately after their arrest. 7 Moreover, the jury heard tape-recorded conversations between DEA Agent Tony Sargin and an individual referred to as “Floyd,” appellant’s alias name. Appellant and Lasonya Bryant identified the voice of “Floyd” as that of appellant’s long-time friend, Umar Clark. Appellant testified that he let Clark borrow his car. Debose and Jordan testified that appellant directed Clark to drive Janissa Jordan to the scene. It is fundamental that the credibility of the witnesses and the weight to be given to the evidence are primarily for the triers of fact. State v. DeHass (1967), 10 Ohio St.2d 230, 39 O.O.2d 366, 227 N.E.2d 212. Under Eley and DeHass, a jury could reasonably find that appellant knowingly aided and abetted the sale of or offered to sell five kilograms of cocaine. A jury could also find that appellant directed that a firearm be used in the commission of a robbery, that he permitted drug abuse, and that his vehicle and weapon were used as criminal tools. Appellant’s seventh assignment of error is overruled. VIII “The defendant was denied due process of law when the term ‘offer’ was defined in a manner which required less than what is required to prove an attempt yet defendant was convicted and faced the same penalty as if the offense has been consummated.” Appellant’s eighth assignment of error is without merit. The record demonstrates that appellant was convicted of selling or offering to sell cocaine exceeding one hundred times the bulk amount in violation of R.C. 2925.03(A)(10). R.C. 2925.03(A)(10) provides in relevant part that: “(A) No person shall knowingly do any of the following: (6 * * * “(10) Sell or offer to sell a controlled substance in an amount equal to or exceeding one hundred time the bulk amount[.]” In order to prove a violation of R.C. 2925.03, appellee need only prove that an “offer to sell” had been made. Janissa Jordan testified that appellant agreed to sell cocaine to Marty. Detective Sargin testified that Marty gave him the *271 phone number of an individual named “Floyd” and that he phoned “Floyd” and set up the instant deal. It was well established that “Floyd” was appellant’s alias name and that appellant had masterminded the transaction. Under DeHass, it was not unreasonable for the jury to infer that appellant knowingly offered to sell five kilos of cocaine to DEA Agent Tony Sargin via informant Marty Goldfab and his long-time friend, Umar Clark. Appellant’s eighth assignment of error is overruled. IX “The defendant was denied due process of law when the court instructed the jury on theory of aiding and abetting with respect to an offer of sale when aiding and abetting is inapplicable to this particular criminal.” Appellant cites no controlling case law in support of his assertion that the theory of complicity is inapplicable to the offense of aggravated trafficking. In State v. Bennett (1993), 89 Ohio App.3d 475, 624 N.E.2d 1099, evidence of aiding and abetting was adduced at trial and the defendant was convicted of trafficking after the jury was instructed on complicity. Appellant’s ninth assignment of error is overruled. Accordingly, the judgment of the trial court is affirmed. It is so ordered. Judgment affirmed. Spellacy, P.J., concurs. Harper, J., dissents. Footnotes [1] Jordan’s testimony was disputed by Bryant, who testified on behalf of the defense. She testified that appellant was at her home when Jordan called. [2] This admission was corroborated by Debose, and motor vehicle citations in the name of "Floyd Miller” were entered into evidence. [3] The substance transferred was determined to be cornmeal and flour. [4] At page 423 of the transcript the court instructed the jury as follows: "Now I have used some language that relates to intent. I have used the term knowingly. The word knowingly means that a person is aware of the existence of facts and that his acts will probably cause a certain result and be of a certain nature. *267 "In this instance, ladies and gentlemen, with regard to all five counts of this indictment, the defendant is charged with these specific crimes specific crimes under the theory of complicity. Under the theory of complicity the defendant could not be convicted of any offenses unless you found beyond a reasonable doubt that the defendant knowingly solicited, procured another to commit the offense, any of the offenses that are charged in the indictment, or that the defendant aided or abetted another in committing the offense, any of these offenses, or that the defendant conspired with another to commit the offenses set forth in counts 1 through 5 of the indictment." (Emphasis added.) [5] R.C. 2923.03, complicity, provides in relevant part that: “(A) No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following: "(1) Solicit or procure another to commit the offense; "(2) Aid or abet another in committing the offense; "(3) Conspire with another to commit the offense in violation of section 2923.01 of the Revised Code[.]” [6] R.C. 2923.01(J) specifies the penalties associated with a conviction for conspiracy within the conspiracy section of the Revised Code. [7] While Bledsoe became a hostile witness at trial, Jordan's testimony was consistent with her pretrial statement.