State v. Sutherland

Evans, Presiding Judge. This is an appeal by the defendan1>appellant, Danny Ray Sutherland, from a judgment of conviction in the Court of Common Pleas of Auglaize County entered pursuant to a jury verdict of guilty to a felony charge of trafficking in drugs, a violation of R.C. 2925.03(A)(6) and (E)(4). 1 On Sunday, September 13, 1992, at approximately 10:30 a.m., Chris Allen Roberts was stopped by an Ohio State Highway Trooper for operating his vehicle, a 1987 Ford pickup, in an erratic manner. Appellant, a passenger in the truck, was observed by Trooper Stockman rising from a sleeping position and turning to look at the patrol car. As the truck pulled to the side of the highway, the trooper observed Roberts’ making movements as if placing something under the seat with his right hand, and observed appellant’s making similar movements toward the center of the seat. After determining that Roberts’ Michigan driver’s license and registration were in order, the trooper asked both subjects to exit the truck so he could frisk them for weapons. Finding that neither was armed, he told them to stand ten to fifteen feet in front of the truck while he checked the truck’s passenger compartment for weapons. In conducting the search of the truck’s interior, the trooper discovered a “fuzz buster,” which Roberts had placed under the seat, and a nearly transparent plastic box containing marihuana on the seat under a black nylon jacket. After Trooper Stockman had placed the container of marihuana in his cruiser, he radioed for assistance from another officer. When Trooper Barrett, the “backup” officer, arrived, Chris Roberts and appellant were arrested and placed in Barrett’s patrol car. Trooper Stockman later testified that he did not place the suspects in the back of his own cruiser, because his K-9 companion (ie., his “narcotics detection” dog) was in the back seat. Based upon the evidence found on the seat of the truck, the officers next conducted a search of the entire truck for contraband. During this second search, conducted with the aid of the narcotics dog, the troopers found what *843 appeared to be freshly harvested marihuana under the hood of the truck and under the spare tire in the truck bed. Appellant and Roberts were both advised of their Miranda rights prior to the second search. Appellant has consistently denied knowledge of the marihuana that had been concealed on the truck, outside the passenger compartment. Appellant was charged in the Auglaize County Municipal Court with trafficking in marihuana, in violation of R.C. 2925.03(A)(6) and (E)(4), a felony of the third degree, without specification. Due to continuances and delays in the holding of a preliminary hearing, appellant was indicted on the same charge by a grand jury, before a preliminary hearing could be held. On November 12, 1992, appellant and Chris Roberts, his co-defendant, filed motions to suppress evidence that they contended was improperly obtained in an illegal search. On November 19, 1992, the day after the motion hearing, the court issued its ruling, denying both motions to suppress. The case was then scheduled for trial on January 12, 1993. Chris Roberts pled to the charge before trial. However, due to appellant’s unwillingness to negotiate a plea, and based upon the state’s discovery of appellant’s prior felony drug conviction, the state dismissed the charges against appellant and indicted him on the more serious charge of trafficking in marihuana, with the added element of a prior felony drug conviction, which served to raise the level of appellant’s offense to a second degree felony. See R.C. 2925.03(A)(6) and (E)(4). 2 Appellant again pled not guilty to the charge. Prior to the May 5th jury trial, appellant agreed to stipulate to the authenticity of a photocopy of the decree of conviction to felony drug abuse in the state of Michigan. Also prior to the trial, the state filed a motion in limine, requesting the court to allow the introduction of “other acts” testimony under Evid.R. 404(B), which permits the introduction of such evidence only if it tends to show “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” The state intended to introduce a detailed factual presentation of appellant’s actions and behavior during the commission of his prior felony drug-related offense in Michigan. The court ruled on the state’s motion in limine immediately preceding the trial, finding such evidence admissible, in that it “does tend to show knowledge on the part of the defendant, * * * knowingly possess being one of the items that is going to be one of the elements of this particular case * * * [sic ]. Therefore the court is going to allow it for the limited purposes of tending to show motive, intent, plan, knowledge, absence of mistake, or accident.” *844 Thus, the court permitted the state to introduce extensive testimony from a Michigan deputy regarding the circumstances surrounding appellant’s prior conviction on a felony drug abuse charge. Following appellant’s trial, the jury convicted him as charged, making the requisite “additional” finding that he had been previously convicted of a felony drug abuse offense. The court then sentenced appellant to a three-to-fifteen year term of imprisonment, suspended his driver’s license for five years, and ordered him to pay a fine of $2,500 plus costs. Appellant’s motions for probation, shock probation, and appellate bond were all denied. Appellant timely filed his notice of appeal from the court’s May 7,1993 entry of judgment and sentence, asserting three assignments of error. “ASSIGNMENT OF ERROR NO. ONE “The trial court committed prejudicial error in overruling appellant’s motion to suppress the fruits of illegal searches and seizures.” With his first assignment of error, appellant asserts that the court erroneously overruled his motion to suppress evidence, setting forth three contentions in support of the assignment. For the reasons which follow, we find appellant’s contentions not well taken, and therefore overrule the first assignment of error. A “The initial search of Roberts’ truck, purportedly for the limited purpose of assuring the safety of Trooper Stockman, was not justified by specific, articulable facts under the totality of the circumstances.” 3 In Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, the United States Supreme Court declared that a police officer who has “reasonable suspicion” to justify a forcible stop of a defendant may search such defendant for weapons if there exist reasonable grounds to believe that the officer’s safety is threatened. The Ohio Supreme Court has declared the Terry rule applicable to a limited search of the passenger compartment of an automobile legitimately stopped for a traffic violation, if the search is reasonable to ensure the officer’s safety. State v. Smith (1978), 56 Ohio St.2d 405, 409, 10 O.O.3d 515, 517, 384 *845 N.E.2d 280, 282. A reviewing court must consider the “totality of the circumstances” in determining whether the search was reasonable. Id. As a reviewing court, we are to “give due weight to [the officer’s] experience and training and view the evidence as it would be understood by those in law enforcement.” State v. Andrews (1991), 57 Ohio St.3d 86, 88, 565 N.E.2d 1271, 1273, citing United States v. Cortez (1981), 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621. Following a review of the officer’s testimony during the motion hearing, we conclude that his observations of the circumstances and conclusions drawn therefrom were reasonable. Trooper Stockman testified that during his extensive experience as a patrolman he had previously been threatened with weapons by suspects he had stopped, and that the “furtive” movements made by Roberts and appellant while they were being pulled over led him to fear that they might be in the process of concealing weapons. Moreover, as directed by the Supreme Court in State v. Smith, the officer’s initial search was confined to the area toward which the suspects’ furtive motions were directed. Smith, 56 Ohio St.2d at 409, 10 O.O.3d at 517, 384 N.E.2d at 282. Therefore, we find the officer’s suspicion to be reasonable, 4 and his subsequent limited search of the area accessible to the suspects reasonable. See id. at 408, 10 O.O.3d at 516-517, 384 N.E.2d at 281-282. See, also, State v. Evans (1993), 67 Ohio St.3d 405, 413, 618 N.E.2d 162, 169-170. B “Even if the initial search was justified as a protective weapons search, the discovery of a substance alleged to be marihuana in a closed container on the front seat went beyond the scope of a proper protective search.” In Minnesota v. Dickerson (1993), 508 U.S.-, 113 S.Ct. 2130, 124 L.Ed.2d 334, the United States Supreme Court announced that, during a valid Terry 5 search for weapons, an officer who discovers evidence of a crime may seize such evidence. If the officer is lawfully conducting the search, and encounters an object whose “incriminating character is immediately apparent,” he may seize the contraband without a warrant. Id., 508 U.S. at---, 113 *846 S.Ct. at 2136-2137, 124 L.Ed.2d at 344-346. Thus, the court created a “plain feel” exception to the warrant requirement, analogous to the “plain view” exception to the warrant requirement of Coolidge v. New Hampshire (1971), 403 U.S. 443, 465-471, 91 S.Ct. 2022, 2037-2041, 29 L.Ed.2d 564, 582. Since the Terry stop and search doctrine has previously been extended to automobile stops, we find it reasonable to apply “plain view” to a Terry search of an automobile. Thus, if an officer who is lawfully conducting a Terry search of the passenger compartment of a stopped vehicle discovers an object which is immediately seen to be contraband rather than a weapon, he may seize the object and make an arrest. See Dickerson, 508 U.S. at---, 113 S.Ct. at 2136-2137, 124 L.Ed.2d at 344-346 (Fourth Amendment requires that the officer have probable cause to believe that the item is contraband before seizing it, thus ensuring against “excessively speculative seizures”). Therefore, in this case, when Trooper Stockman discovered the nearly transparent container under appellant’s jacket, and recognized immediately that the substance therein was marihuana, he reasonably and lawfully took possession of the container and arrested Roberts and appellant for possession of marihuana. C “The state’s contention that the appellant has no standing to contest the search of the truck amounts to an admission that the contraband was not his.” The trial court determined that, since appellant’s motion to suppress was found to be without merit, the state’s claim that appellant lacked standing to contest the search of Chris Robert’s car was moot. Having found that a valid search was conducted by the arresting officers in this case, we agree with the trial court’s conclusion. 6 Thus, appellant’s argument is not well taken. The first assignment of error is overruled. “ASSIGNMENT OF ERROR NO. TWO “The trial court erred to the prejudice of appellant Sutherland in allowing evidence of his previous conviction and the details of the incident leading to that conviction to be presented to the jury.” *847 The Ohio Supreme Court has held that, “‘[a]s a general rule, the introduction of evidence tending to show that a defendant has committed another crime wholly independent of the offense for which he is on trial is prohibited.’ ” (Emphasis added.) State v. Adams (1978), 53 Ohio St.2d 223, 230, 7 O.O.3d 393, 397, 374 N.E.2d 137, 141. See, e.g., State v. Strong (1963), 119 Ohio App. 31, 26 O.O.2d 134, 196 N.E.2d 801 (details of like acts of defendant inadmissible where they have no relation to offense for which defendant is on trial); State v. Lytle (1976), 48 Ohio St.2d 391, 2 O.O.3d 495, 358 N.E.2d 623; Evid.R. 404(A). With regard to admission of evidence of “other acts of wrongdoing,” the Supreme Court has further commented that, “Because R.C. 2945.59 and Evid.R. 404(B) codify an exception to the common law with respect to evidence of other acts of wrongdoing, they must be construed against admissibility, and the standard for determining admissibility of such evidence is strict.” State v. Broom (1988), 40 Ohio St.3d 277, 281-282, 533 N.E.2d 682, 690. As we noted above, despite appellant’s open court admission that he had been previously convicted of a drug-related felony, the trial court herein permitted the state to introduce substantial evidence of the circumstances and facts involved in the commission of that crime. The court determined that the evidence was admissible under R.C. 2945.59 and Evid.R. 404(B). 7 The element specifically noted by the trial court as being provable by the deputy’s testimony was “knowledge.” We conclude that the introduction of the details surrounding the commission of the Michigan offense was highly prejudicial to appellant, and may have unduly influenced the jury to convict appellant of the present possession offense based upon his past, unrelated behavior. Such influence is precisely the reason that the evidence of prior wrongdoing is inadmissible, even if relevant. As noted in Weissenberger’s Ohio Evidence, Section 404.22, “extrinsic act evidence is excluded not because it has no appreciable probative value, but because it has too much.” The rule permits admission of such evidence, if relevant, but only if the prior acts tend to show proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The evidence admitted is not probative of any of these elements. Therefore, although the state was permitted, indeed required, to produce evidence of appellant’s prior conviction in order to prove one element of the crime with which he was charged, permitting the Michigan deputy to elaborate on the intricate details served only to unfairly *848 prejudice the jury against appellant, suggesting the inference that appellant had a propensity to commit the crime with which he was charged. The “knowledge” required to be proven by the state in this case is appellant’s knowledge of the presence of the marihuana concealed on the driver’s truck. Simple knowledge of the existence of the marihuana on appellant’s part would lead to the presumption that he knowingly possessed the drug. However, appellant’s past behavior, occurring nearly one year prior to the incident for which he was arrested herein, has no relevance to whether he knew there was marihuana hidden under the hood of the vehicle on the specific occasion at issue in the present case. Further, after reviewing the record herein, and the testimony of the witness in its entirety, we note that the behavior which led to appellant’s conviction in Michigan, ie., distributing marihuana he had purchased for personal use to his friends, while seated in his own vehicle, is not probative of the commission of the particular crime with which appellant was charged herein. In the present case, appellant, simply by virtue of his being a passenger in Chris Roberts’ truck, was charged with knowingly possessing freshly harvested marihuana which Roberts had admittedly concealed under the hood of his own truck. Nor were the circumstances of the prior offense inextricably intertwined with the crime charged, such that those details would tend to show plan, scheme, motive, or absence of accident. 8 See State v. Hutton (1990), 53 Ohio St.3d 36, 40, 559 N.E.2d 432, 438-439. It would have been permissible, and sufficient to establish the necessary element of previous conviction of a felony drug offense, see R.C. 2925.03(E)(4), to prove only that the conviction occurred, and that this defendant is the same person convicted in that case: 9 *849 Considering there was no evidence on the record to support the state’s charge that appellant “knowingly possessed” the bulk amounts of marihuana in question aside from the inconsistent testimony of Chris Roberts, the codefendant, we are not convinced that the court’s admission, of all the deputy’s testimony was harmless error, or that “the other admissible evidence, standing alone, constitutes overwhelming proof of guilt.” Hutton, 53 Ohio St.3d at 41, 559 N.E.2d at 439, citing State v. Williams (1983), 6 Ohio St.3d 281, 6 OBR 345, 452 N.E.2d 1323, paragraph six of the syllabus. We cannot say with certainty that appellant would have been found guilty beyond a reasonable doubt, based solely on the testimony of an unreliable witness. Thus, we conclude that the court erred in granting the state’s motion in limine, especially in light of the fact that appellant had admitted his prior felony conviction on the record, and a few brief statements by the Michigan deputy would have sufficed to establish the relevant element. We therefore sustain appellant’s second assignment of error. “ASSIGNMENT OF ERROR NO. THREE “The evidence is insufficient to sustain a verdict against appellant.” In light of our decision to sustain the second assignment of error, and pursuant to App.R. 12(A)(1)(c), we find the third assignment of error moot. Having found error prejudicial to the appellant herein, in the particulars assigned and argued, we reverse the judgment of the trial court, and remand the case to that court for further proceedings. Judgment reversed and cause remanded. Hadley, J., concurs. Shaw, J., dissents. Footnotes [1] Subsection (E)(4) provides that where the offender has violated division (A)(6), trafficking in marihuana is a third-degree felony, but if he has "previously been convicted of a felony drug abuse offense, trafficking in marihuana is a felony of the second degree.” [2] See footnote 1, supra. [3] The second search, wherein the bulk amounts of marihuana were discovered under the hood of the truck and in the back of the truck, was not challenged as being unreasonable. See Carroll v. United States (1925), 267 U.S. 132, 45 S.Ct. 280, 67 L.Ed. 543, and its progeny; United States v. Ross (1982), 456 U.S. 798, 800, 102 S.Ct. 2157, 2160, 72 L.Ed.2d 572, 578 (police officers who have made legitimate automobile stop and who have probable cause to believe that contraband is in the vehicle may conduct as thorough a search of the vehicle as would be authorized by a magistrate issuing a warrant). [4] Although we agree with appellant's assertion that, as stated in State v. Bobo (1988), 37 Ohio St.3d 177, 179, 524 N.E.2d 489, 492, “a mere furtive gesture, standing alone, does not create probable cause to stop and search a vehicle without a warrant,” the suspects in this case were not initially stopped for making furtive movements, but for erratic driving. [5] Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (officer who reasonably suspects an individual is engaged in illegal behavior may, without violating the Fourth Amendment, forcibly stop and question the individual, and may conduct a “frisk” of the suspect for weapons if officer reasonably fears for his or the public’s safety). [6] Pursuant to the United States Supreme Court’s holdings in Rakas v. Illinois (1978), 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387, and United States v. Salvucci (1980), 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619, a defendant must have both a possessory interest in the items seized in the search and also an expectation of privacy in the areas searched, in order to assert standing to challenge the search as unconstitutional. It is therefore not contradictory for the state to charge a defendant with a possessory offense and to maintain that such defendant has no standing to challenge the legality of the search. See Katz, Ohio Arrest, Search, and Seizure (3 Ed. 1992) 284, Section 17.03. [7] The statute and rule are essentially identical, permitting admission of relevant, prejudicial "other acts” evidence, not for proving the defendant’s propensity for criminal behavior, but only if probative "of motive opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Evid.R. 404(B). [8] Contrary to the assertion of the dissent herein, the fact that appellant committed a drug-related crime in the past surely does not "show that the former crime and the current crime were committed by the same person”! Besides, nowhere in the record is it found that appellant's identity was in question. See Hutton, 53 Ohio St.3d at 40, 559 N.E.2d at 438-439. Furthermore, the only way these crimes could have possibly been "inextricably intertwined” would be if the state had claimed that the actual marihuana concealed on Roberts’ truck was the same marihuana which appellant was previously convicted of possessing, or, perhaps, if Chris Roberts or his truck had been involved in the previously committed crime. See id. [9] The Michigan statute under which appellant was convicted states, in pertinent part: "[A] person shall not manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance. * * * A person who violates this section as to * * * marihuana, is guilty of a felony." (Emphasis added.) Mich.Comp.Laws Ann. 333.7401(1) and (2)(c). The fact that the state already had on record appellant’s admission to that element of the crime (i.e., prior conviction of a drug-related felony) is simply further evidence that the state introduced the testimony simply to inflame the jury. Thus, the evidence was cumulative, besides being irrelevant for the purposes it was allowed.