Opinion

State v. Whitfield

2023 Ohio 4579

Court: Ohio Court of Appeals
Filed: Dec 15, 2023
Status: Published
On the bench: Osowik
Cited by: 1 cases
Authority: More cited than 52.5%

The opinion

[Cite as State v. Whitfield, 2023-Ohio-4579.]

IN THE COURT OF APPEALS OF OHIO

SIXTH APPELLATE DISTRICT

LUCAS COUNTY

State of Ohio Court of Appeals No. L-22-1259

Appellee Trial Court No. CR0202102966

Mitchell Whitfield DECISION AND JUDGMENT

Appellant Decided: December 15, 2023

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and

Kaitlyn Tauber, Assistant Prosecuting Attorney, for appellee.

Lawrence A. Gold, for appellant.

*****

OSOWIK, J.

{¶ 1} This is an appeal from a judgment of the Lucas County Court of Common

Pleas, which sentenced appellant, Mitchell Whitfield, to four years of community control

after a jury convicted him of cocaine possession and tampering with evidence. For the

reasons set forth below, this court affirms the judgment of the trial court.

{¶ 2} Appellant sets forth three assignments of error in this appeal:

1. The trial court abused its discretion and erred to the prejudice of

appellant by denying his motion to suppress evidence.

2. The trial court erred in denying appellant’s Crim.R. 29 motion.

3. The jury’s verdict was against the manifest weight of the evidence

presented at trial.

I. Background

{¶ 3} This appeal originated from two felony indictments issued on February 7,

2021, by a Lucas County Grand Jury against appellant for possession of cocaine, a

violation of R.C. 2925.11(A) and (C)(4)(a) and a fifth-degree felony under R.C.

2925.11(C)(4)(a), and for tampering with evidence, a violation of R.C. 2921.12(A)(1)

and a third-degree felony under R.C. 2921.12(B). Appellee, the state of Ohio, alleged

that at around 4:00 pm on October 16, 2021, in Toledo, Lucas County, Ohio, after Toledo

police smelled the strong odor of marijuana originating from appellant’s vehicle, which

appellant was driving alone, and before Toledo police could stop the vehicle, appellant

tossed from the window a plastic bag containing cocaine. Appellant pled not guilty, and

discovery ensued in anticipation of a jury trial.

{¶ 4} On May 20, 2022, appellant filed a motion to suppress all information and

evidence arising from the October 16, 2021 traffic stop because appellee lacked an arrest

warrant for appellant and was without “probable cause or a reasonable suspicion of

criminal activity or any other constitutionally permissive reason for stopping the vehicle.”

Appellee opposed the motion to suppress, and the hearing on the motion was held on

June 24. The trial court heard testimony from one witness and admitted one exhibit into

evidence. On June 27, the trial court denied appellant’s motion to suppress.

{¶ 5} The jury trial commenced on September 19, 2022. The jury heard testimony

from three witnesses, and the trial court admitted five exhibits into evidence. Following a

two-day trial and deliberations, the jury found appellant guilty of both offenses.

Sentencing occurred on October 5, 2022, during which the trial court reviewed the 36-

year-old appellant’s lengthy criminal history that included one felony and 22

misdemeanors as an adult. Appellant offered mitigating factors for the court’s

consideration. The trial court sentenced appellant to serve four years of community

control with conditions. Appellant timely appealed.

II. Motion to Suppress

{¶ 6} In support of his first assignment of error, appellant argues the trial court

abused its discretion by denying his motion to suppress and in admitting evidence arising

from allegedly illegal traffic stop by officers of the Toledo police gang force. Appellant

argues appellee’s traffic stop was pretextual because the Toledo police officers “were

seeking to be ‘proactive’ with regard to ‘suppression stops.’” Appellant further argues it

was impossible for the police officers “to smell burnt marijuana with their windows

rolled up[.]” Appellant argues that the smell of burnt hemp, which is legal, is comparable

to burnt marijuana. Consequently, appellant concludes the traffic stop was made without

reasonable suspicion or probable cause, which resulted in an ensuing search that violated

his constitutional rights.

{¶ 7} Appellee responds the trial court did not abuse its discretion because of

competent, credible testimony by one of the three Toledo police officers at the scene,

who is familiar with the odor of marijuana based on his seven-and-one-half-years of

training, education, and experience relating to illegal narcotics. The officer testified at

the hearing that the odor of marijuana coming from appellant’s car, a blue Pontiac G6,

was “significant.” Consequently, the officer had probable cause to believe that appellant

possessed marijuana in the car and was driving under the influence of that drug, which

are crimes in Ohio. Citing State v. Vega, 154 Ohio St.3d 569, 2018-Ohio-4002, 116

N.E.3d 1262, ¶ 15, which, in turn, quotes State v. Moore, 90 Ohio St.3d 47, 48, 734

N.E.2d 804 (2000), appellee argues the Ohio Supreme Court has made clear that “the

smell of marijuana, alone, by a person qualified to recognize the odor, is sufficient to

establish probable cause to search a motor vehicle, pursuant to the automobile exception

to the warrant requirement.” The court further affirmed, “There need be no other tangible

evidence to justify a warrantless search of a vehicle.” Moore at 48. We agree. State v.

Brown, 6th Dist. Sandusky No. S-20-015, 2021-Ohio-753, ¶ 36.

{¶ 8} Following the suppression hearing, the trial court determined that, after the

traffic stop, appellant admitted to the police, “You know I smoke weed.” The trial court

continued, “He makes essentially the same admission more than once in the body-worn

camera footage submitted to the court, and does not attempt to clarify that he means to

say ‘hemp’ instead of ‘marijuana.’” In any event, appellant did not present any evidence

with which the court could compare the smells of burnt marijuana and burnt hemp. The

trial court found: the odor of marijuana from the car was strong when the police

approached it; appellant repeatedly called “marijuana” the burnt blunt found in

appellant’s blue Pontiac G6; and the police retrieved the “white chalky substance”

observed thrown from appellant’s blue Pontiac G6, which was “found to be contraband

upon testing.” The trial court then denied appellant’s motion to suppress.

{¶ 9} We review the trial court’s denial of appellant’s motion to suppress as a

mixed question of fact and law. State v. LaRosa, 165 Ohio St.3d 346, 2021-Ohio-4060,

179 N.E.3d 89, ¶ 17, citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797

N.E.2d 71, ¶ 8. We accept the trial court’s factual findings if they are supported by

competent, credible evidence, but review de novo the trial court’s legal conclusions. Id.

{¶ 10} We find the trial court’s factual findings are supported by competent,

credible evidence. Detective Mugler testified regarding his formal training, education.

and daily job experience recognizing the odor and appearance of raw and burnt

marijuana. He testified that “the odor of that burning marijuana is generally a lot stronger

than just the raw marijuana.” During his noon-to-eight-o’clock shift on October 16,

2021, at around four o’clock, he drove an unmarked police SUV with two additional

gang-unit officers. “We’re primarily looking for gang members, but we’re also primarily

looking for – to get guns and drugs off the street.” Under cross-examination, detective

Mugler was questioned about the gang unit’s proactive approach to traffic stops.

Q: It’s not reactive, you’re not waiting until you see something? It’s

more proactive, you’re out there hunting for different vehicles to pull over?

A: We try to be proactive, but we are also very reactive in what we

do.

Q: But that day you were being proactive, correct?

A: I was actually being reactive to what I smelled and what I had in

front of me. But, yes, we were out to conduct traffic stops.

{¶ 11} At the time of the incident, the three gang-unit officers were “conducting

crime suppression in the area of Warren and Delaware when we noticed a [blue Pontiac

G6] stopped in the middle of the road on Warren. There were some kids around. We

could smell the odor of marijuana coming from the vehicle.” The police SUV was

stopped directly behind the single-occupant blue Pontiac G6, which had its windows

down, when the marijuana odor was strongest, even though the police vehicle’s windows

were up. “So we actually waited. The vehicle continued northbound and as the vehicle

continued northbound and made its westbound turn onto Delaware, I could still smell the

vehicle or the marijuana coming from the vehicle, so we were 100 percent sure that the

marijuana was coming from that vehicle at that point when there was nobody else around

that vehicle.” Based on that certainty, “it leads us to believe that there is a crime of

marijuana possession or possibly driving under the influence of marijuana.” Detective

Mugler then initiated the vehicle’s lights and activated his body-worn camera for the

traffic stop.

{¶ 12} The driver of the blue Pontiac G6 did not pull over. Then as the blue

Pontiac G6 “made a southbound turn onto Putnam, the driver and only occupant in the

vehicle reached across to the passenger side and threw what appeared to be a white

plastic bag or bag containing a white substance out of the passenger side of the vehicle

into the grassy area on the side of – on the west side of Putnam Street.” The driver of the

blue Pontiac G6 still did not pull over, but eventually did so a while later. Detective

Mugler continued:

Once that vehicle came to a rest, I approached the driver’s side of

the vehicle, made contact with that driver, asked if there was marijuana

coming from the vehicle, because again, when I’m standing that close to the

vehicle, it’s very apparent that it’s coming from inside that vehicle. The –

asked him if there was weed in the car and then didn’t really get a response.

Said is there marijuana in the car, he said, you know I smoke, you know I

smoke, a couple times. And then I proceeded to get him out of the vehicle.

That’s when we identified the driver as Mitchell Whitfield and I placed him

in handcuffs at that time for what we had going on.

We weren’t 100 percent sure what he had thrown out the window so

we just detained him and with that odor of marijuana, we brought him to

the back of the car. I actually had him sit on the curb and I checked him

just to make sure he didn’t have anything else on him.

{¶ 13} Detective Mugler suspected the plastic bag tossed out of the blue Pontiac

G6 c contained cocaine. “Generally * * * when we’re conducting a traffic stop and

occupants are throwing items out of vehicles, that’s – in my experience they’re trying to

tamper with evidence or get rid of evidence, guns and drugs.” While detective Mugler

remained with appellant, detectives Sulick and Schotter searched for the plastic bag in the

area where it had been tossed and immediately found it. Through later lab testing, the

plastic bag’s contents were confirmed to be 3.23 grams of crack cocaine.

{¶ 14} Detectives Sulick and Schotter brought the retrieved plastic bag to where

detective Mugler was with appellant. “Due to that odor of that marijuana coming from

the vehicle, that gave us probable cause to believe that there’s probably more drugs inside

the vehicle.” Detective Mugler read appellant his rights, appellant, again, admitted he

had a “blunt” in the car’s ashtray, and searched the rest of the blue Pontiac G6. At no

time did appellant indicate the “blunt” was anything other than weed, a well-known

synonym for marijuana, according to detective Mugler. The half-smoked “blunt” of

marijuana was found in the car’s ashtray, but no other drugs. “And during the course of

that stop, Mr. Whitfield did not give me any indication of him actually being under the

influence or being impaired as to being able to drive that vehicle.”

{¶ 15} Having found there is competent, credible evidence to support the trial

court’s factual findings, upon de novo review, we further find no error with the trial

court’s decision to deny appellant’s motion to suppress. The smell of marijuana alone by

detective Mugler, a person qualified to recognize the odor, provided sufficient probable

cause to search the blue Pontiac G6, and no other tangible evidence was required to

justify the warrantless search of appellant’s car.

{¶ 16} Appellant’s first assignment of error is not well-taken.

III. Sufficiency of Evidence

{¶ 17} Appellant’s second assignment of error argues appellee failed to meet its

burden to produce sufficient evidence to convict him of cocaine possession and evidence

tampering for three reasons: (1) there was no evidence of a traffic violation committed by

appellant; (2) there was no forensic evidence at trial to link him to the 3.23 grams of

crack cocaine retrieved at the scene; and (3) there was no video evidence showing him

possessing crack cocaine or tampering with evidence. Appellant argues that he was

prejudiced by the trial court’s denial of his two Crim.R. 29(A) motions for acquittal, and

his conviction should be reversed.

{¶ 18} Appellee responds that the evidence is more than sufficient to permit the

jury to find that the elements of cocaine possession and evidence tampering were proven

beyond a reasonable doubt. Citing State v. Bridgeman, 55 Ohio St.2d 261, 264, 381

N.E.2d 184 (1978), which construed Crim.R. 29(A), appellee argues that even if

reasonable minds reach different conclusions whether each element of the crime was

proven beyond a reasonable doubt, “they clearly might find guilt.” (Emphasis sic.) We

agree.

{¶ 19} Appellant made two motions for acquittal pursuant to Crim.R. 29(A): after

appellee rested its case and after appellant rested his case. The trial court denied both

motions. Crim.R. 29(A) states, in part, “The court on motion of a defendant * * *, 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 * * *, if the evidence is insufficient to

sustain a conviction of such offense or offenses.” Appellant’s motions for acquittal under

Crim.R. 29(A) are governed by the same standard as a challenge to the sufficiency of

evidence supporting a conviction at trial. State v. Tenace, 109 Ohio St.3d 255, 2006-

Ohio-2417, 847 N.E.2d 386, ¶ 37.

The test for sufficiency of the evidence 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.” “‘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.” A sufficiency-of-the-

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evidence challenge asks whether the evidence adduced at trial “is legally

sufficient to support the jury verdict as a matter of law.” (Citations

omitted.)

State v. Worley, 164 Ohio St.3d 589, 2021-Ohio-2207, 174 N.E.3d 754, ¶ 57.

{¶ 20} We must determine if any rational trier of fact viewing the evidence at trial,

when viewed in a light most favorable to appellee, could have found the essential

elements of possession of cocaine and of tampering with evidence proven beyond a

reasonable doubt. We do from the admitted evidence.

{¶ 21} With respect to the elements of a possession-of-cocaine offense, R.C.

2925.11(A) “provides, ‘No person shall knowingly obtain, possess, or use a controlled

substance,’ and R.C. 2925.11(C) establishes separate offenses based on the identity of the

controlled substance involved.” State v. Foreman, 166 Ohio St.3d 204, 2021-Ohio-3409,

184 N.E.3d 70, ¶ 14. In turn, R.C. 2925.11(C)(4), “‘prescribes the offense of ‘possession

of cocaine.’ And R.C. 2925.01(K) defines the terms ‘possess’ and ‘possession’ as

“having control over a thing or substance.’” Id.

{¶ 22} With respect to the elements of a tampering-with-evidence offense, R.C.

2921.12(A)(1) provides, “No person, knowing that an official proceeding or investigation

is in progress, or is about to be or likely to be instituted, shall * * * [a]lter, destroy,

conceal, or remove any record, document, of thing, with purpose to impair its value or

availability as evidence in such proceeding or investigation[.]” “A conviction for

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tampering with evidence pursuant to R.C. 2921.12(A)(1) requires proof that the

defendant intended to impair the value or availability of evidence that related to an

existing or likely official investigation or proceeding.” State v. Straley, 139 Ohio St.3d

339, 2014-Ohio-2139, 11 N.E.3d 1175, syllabus.

{¶ 23} The admitted evidence at trial included testimony from three witnesses:

detectives Mugler and Schotter and the Toledo police crime lab drug analyst. In addition,

the trial court admitted the following evidence: the body-worn camera videos of

detectives Schotter and Mugler, the crack cocaine found in the plastic bag retrieved by

detective Schotter, the marijuana blunt retrieved from appellant’s car by detective

Mugler, and the drug-analyst expert’s curriculum vitae and report concluding that the

“off-white looking chunky material” found in the plastic bag is 3.23 grams of crack

cocaine.

{¶ 24} Detectives Schotter and Mugler each testified that at the late afternoon of

October 16, 2021, while in an unmarked police SUV stopped behind a blue Pontiac G6,

they smelled the strong odor of marijuana coming from it. Appellant was the driver and

sole occupant of the blue Pontiac G6. Detective Mugler drove the unmarked police SUV,

with detective Schotter in the front passenger seat, and detective Sulick in the back. The

detectives are all part of the Toledo police gang task force, who regularly patrol known

areas of Toledo where gang activity occurs. They conduct crime suppression and

investigations with the purpose to get illegal drugs and firearms “off the street.”

12.

{¶ 25} Appellant’s vehicle, with its untinted windows down at least part way,

stopped in the middle of Warren Street near Delaware Avenue, an area in Toledo

patrolled by the gang task force. Appellant was talking through a window to some people

outside. The unmarked police SUV was stopped directly behind appellant’s car. The

SUV also does not have tinted windows, and the windows are usually open a crack such

that from a distance they may appear to be all the way up. The people left the area, and

even when appellant turned onto Delaware, the strong marijuana odor followed

appellant’s car, which the police continued to follow. At that point detective Mugler

became one-hundred-percent certain the marijuana odor came from the appellant’s

vehicle and not the people outside. He initiated a traffic stop by activating the SUV’s

overhead lights, but appellant continued traveling on Delaware and then turned down

Putnam Avenue for a while before stopping. While turning down Putnam, detective

Mugler observed appellant toss through the passenger window a plastic bag with a white

substance. In detective Mugler’s experience, when suspects discard items out of a

window after police lights or sirens are activated, “it’s because they’re trying to get rid of

drugs or guns or any type of contraband.”

{¶ 26} Once stopped, detective Mugler approached the driver’s side of the blue

Pontiac G6 and “it was very clear that the marijuana was coming from that vehicle; it got

stronger, I could smell it was burning.” Detective Mugler then identified appellant as the

driver. Detective Schotter retrieved the plastic bag from the grass near the intersection of

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Delaware and Putnam streets, which is where appellant tossed it from the blue Pontiac

G6. The detectives transported the evidence to the police’s central property room. Once

there, detective Mugler secured the retrieved plastic bag with an evidence tag and

completed the report to submit it for crime lab testing. The drug-analyst expert testified

that the evidence tag was not broken until the contents were tested and determined to be

3.23 grams of crack cocaine.

{¶ 27} Based on the foregoing, we find that sufficient evidence was submitted to

the jury such that, after viewing the evidence in a light most favorable to appellee, any

rational trier of fact could have found the essential elements of the crimes of cocaine

possession and tampering with evidence proven beyond a reasonable doubt: that on

October 16, 2021, in Toledo, Lucas County, Ohio, appellant knowingly obtained,

possessed, or used crack cocaine, a controlled substance, and that after knowing that an

official proceeding or investigation was in progress or likely to be, appellant altered,

destroyed, concealed, or removed the crack cocaine, with purpose to impair its value or

availability as evidence in such proceeding or investigation.

{¶ 28} Appellant’s second assignment of error is not well-taken.

IV. Manifest Weight of the Evidence

{¶ 29} In support of his third assignment of error, appellant argues his convictions

should be reversed because the evidence relied upon by the jury was not credible.

Appellant argues the evidence was not credible because: the gang task force work is self-

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described as proactive; the crack cocaine found on the street is in a high-crime area such

that “it is not inconceivable that the drugs may have been dropped or placed there before

hand by some other individual”; detective Mugler’s testimony of seeing appellant throw

the plastic bag from the car was not corroborated by detective Schotter; and there is no

forensic evidence from appellant or his vehicle to connect him with crack cocaine.

Appellant concludes that “the jury’s verdict was based on sympathy and respect for law

enforcement and the danger they face by operating in high crime areas, and not on the

evidence presented by the State of Ohio.”

{¶ 30} In response, appellee argues the manifest weight of the evidence at trial

supports appellant’s convictions. Detective Mugler testified he witnessed appellant

possess the crack cocaine when appellant threw the plastic bag containing crack cocaine

from the car he drove as the only occupant. Detective Mugler also witnessed appellant

tamper with that evidence when appellant threw the plastic bag containing crack cocaine

from the car he drove as the only occupant. Appellant did so only after detective Mugler

activated the lights on the unmarked police SUV, which appellant initially ignored to

dispose of the illicit drug. Detective Schotter testified he retrieved the plastic bag from

the location detective Mugler described. The expert drug analyst testified that the plastic

bag’s contents were 3.23 grams of crack cocaine, and the report of that drug analysis was

admitted into evidence. Appellee argues that forensic evidence was presented at trial

15.

connecting appellant to the white substance in the plastic bag that was tested and

confirmed to be 3.23 crack cocaine.

{¶ 31} “To evaluate a manifest-weight claim, we must review the entire record,

weigh the evidence and all reasonable inferences, and consider the credibility of all the

witnesses.” State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶

328. We must decide if the jury clearly lost its way in resolving conflicts in the evidence

to create a manifest miscarriage of justice such that the conviction must be reversed and a

new trial ordered. Id. A manifest-weight claim questions the effect of the evidence in

inducing belief of appellant’s guilt by questioning whether the jury could find the

inclination of a greater amount of credible evidence was admitted at trial to sustain that

decision than not. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).

The discretionary power to grant a new trial is in the exceptional case in which the

evidence weighs heavily against the conviction. Id. The unanimous concurrence of all

three judges of a court of appeals panel is required to overturn, on the weight of evidence,

a judgment that results from a jury. Id. at 389. Appellant does not meet his burden.

{¶ 32} In light of the testimony and evidence previously discussed, we find that

any rational fact-finder could have found the inclination of a greater amount of credible

evidence was admitted at trial than not to induce the jury’s belief of appellant’s guilt for

cocaine possession and for tampering with evidence. The credible evidence admitted at

trial includes direct testimonies from three witnesses who observed appellant with the

16.

plastic bag of cocaine when he tossed it from the blue Pontiac G6, who retrieved the

plastic bag from the location where appellant tossed it after the police initiated the traffic

stop, and who tested the plastic bag’s contents and confirmed it was 3.23 grams of crack

cocaine. In addition, the trial court admitted body-worm camera video evidence, physical

evidence of the retrieved crack cocaine, and the crack cocaine lab analysis report. We

find no exceptional instance from the record where the evidence admitted at trial weighs

heavily against the convictions.

{¶ 33} Appellant’s third assignment of error is not well-taken.

V. Conclusion

{¶ 34} On consideration whereof, the judgment of the Lucas County Court of

Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant

to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.