[Cite as State v. Hawthorne , 2016-Ohio-203.] 

# Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 102689

STATE OF OHIO

PLAINTIFF-APPELLEE

vs. LONNIEL R. HAWTHORNE

DEFENDANT-APPELLANT

JUDGMENT:

AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-14-590272-A

BEFORE: McCormack, J., Kilbane, P.J ., and E.T. Gallagher, J.

RELEASED AND JOURNALIZED: January 21, 2016ATTORNEY FOR APPELLANT

P. Andrew Baker 17877 St. Clair Avenue Suite 150 Cleveland, Ohio 44110

ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor By: Timsi Pathak Gregory J. Ochocki Assistant County Prosecutors 8th Floor, Justice Center 1200 Ontario Street Cleveland, OH 44113TIM McCORMACK, J.: {¶1} Defendant-appellant, Lonniel R. Hawthorne (“Hawthorne”), was asleep in his vehicle at a pump at a gas sta tion around 3:00 a.m. with 98 bags of crack cocaine on his lap. A jury found him guilty of drug trafficking, drug possession, and possessing criminal tools. After a review of the record and applicable law, we affirm his convictions. Substantive Facts and Procedural History {¶2} Joe Jenkins was a gas station attendant wo rking the night shift at Carnegie Gas on Carnegie Avenue in the city of Cleveland. On October 11, 2014, around 3:00 a.m., he noticed a vehicle at a pump that had not moved for over an hour. Because of the unusual circumstances, he called the police. {¶3} Officers Eric Sands and Ken Conic arrive d at the gas station to find the driver, Hawthorne, asleep behind the wheel, with the vehicle’s engine running and lights on. The

officers looked inside the vehicle a nd saw, to their surprise, a larg e bag of what appeared to be drugs on Hawthorne’s lap in plain view. An open bottle of alcohol was on the passenger’s seat. {¶4} The officers’ presence aw akened Hawthorne, and he was quickly placed under arrest. Inside the large bag on his lap were 98 small baggies, each containing a rock of crack

cocaine. A search of the vehi cle also uncovered a bag of powde r cocaine above the driver’s visor, as well as a cell phone and $292 in cash in de nominations of twenties, tens, and singles. The 98 individual rocks totaled 8.9 grams, a nd the powder cocaine weighed 2 grams. {¶5} The state subsequently charged Hawthor ne with drug trafficking involving between 10 and 20 grams of cocaine (Count 1), a third-degree felony; drug possession involving between 5 and 10 grams of cocaine (Count 2), a fourth-degree felony; and possessing criminal tools (Count 3), a fifth-degree fe lony. All three counts containe d a forfeiture specification forthe money and cell phone. Hawthor ne pleaded not guilty, and the matter proceeded to a jury

trial. {¶6} After the evidence was presented, the trial court instructed the jury on a lesser included offense of count one: drug traffick ing involving between five and ten grams of cocaine, a fourth-degree felony. {¶7} The jury found Hawthorne not guilty of drug trafficking between 10 and 20 grams of cocaine but guilty of the lesser included offense of trafficking between five and ten grams of cocaine. The jury also found Hawthorne guilty of drug possession as indicted and possessing criminal tools, as well as the forfeiture specifications. The court merged the trafficking and possession counts, and the state el ected to proceed on the traffick ing offense. The court then imposed 18 months on the drug trafficking offense and 12 months on possessing criminal tools, to run consecutively. The court, in addition, imposed 12 months for Ha wthorne’s violation of community control sanctions in a prior case, al so to be served consecutively. Hawthorne received a total prison term of 42 months. {¶8} On appeal, Hawthorne assigns five errors for our review. We address them out of

order for ease of discussion. The fi ve assignments of error state:

I. The trial court erred in failing to reverse the conviction after forcing appellant to appear in c ourt wearing jail clothes.

II. The trial court erred when it failed to reverse the sentence when defendant-appellant was punished twice for the same criminal activity.

III. The trial court erred in c onvicting defendant-appe llant for possessing criminal tools when this convicti on was not supported by sufficient evidence.

IV. The trial court erre d in convincing defendant-a ppellant when conviction was against the manifest weight of the evidence.V. The trial court erred when it permitted a state’s witness to invade the province of the jury. Testimony of Matt Baeppler {¶9} We begin with the fifth assignment of error. Hawthorne argues that Sergeant Matt Baeppler improperly gave expert opinion testimony as to the ultimate issue of the case and therefore invaded the province of the jury. {¶10} Sergeant Baeppler, a 20-year veteran in th e Cleveland Police Department, had been involved in thousands of drug cases as a narcotic s detective in the depar tment’s narcotics unit. He assisted in the investigation of the instan t case. The state relied on Sergeant Baeppler’s testimony to show, by way of circumstantial evidence, that Hawthorne was guilty of drug trafficking. {¶11} Baeppler testified at le ngth, based on his personal experience and observations, regarding how crack cocaine was typically packaged for sale to drug users. He explained that the amount of drugs in a suspect’s possession is often indicative of whether the drugs were for sale or for personal use, due to the economics of the drug trade. In his opinion, the possession of 98 individually packaged rocks of crack cocaine showed that these drugs were for sale and it would be highly unlikely they were for personal use. {¶12} Sergeant Baeppler was not presented as an expert witness, and we find his testimony proper under Evid.R. 701. Pursuant to Evid.R. 701 (“Opinion testimony by lay witnesses”), [i]f the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the per ception of the witness and (2) helpful to a clear understanding of the witness’ testimony or the determinati on of a fact in issue.{¶13} Sergeant Baeppler’s testimony fell within the scope of Evi d.R. 701’s requirement that a lay witness’s opinion be rationally based on firsthand obs ervations and personal knowledge and helpful in determining a fact in issue. {¶14} Furthermore, the testimony was permissi ble under Evid.R. 704 (“Testimony in the form of an opinion or inference otherwise admissible is not objectionable solely because it embraces an ultimate issue to be decided by th e trier of fact.”). Opinion testimony on an

ultimate issue is admissible if it assists the trier of the fact. State v. Irwin , 7th Dist. Columbiana No. 11-CO-6, 2012-Ohio-2704, ¶ 77, citing Staff Notes of Evid.R. 704. {¶15} Specifically, it has been long settled that “police officers may testify to the nature and amount of drugs and its signif icance in drug trafficking.” State v. Young , 8th Dist. Cuyahoga No. 92744, 2010-Ohio-3402, ¶ 19; State v. Fellows , 8th Dist. Cuyahoga No. 70900, 1997 Ohio App. LEXIS 2213 (May 22, 1997); State v. Wilson , 8th Dist. Cuyahoga No. 69751, 1996 Ohio App. LEXIS 4374 (Oct. 3, 1996); State v. Crenshaw , 8th Dist. Cuyahoga No. 60671, 1992 Ohio App. LEXIS 2831 (June 4, 1992). Sergeant Baeppler’s opinion that the possession of 98 individually packaged rocks of crack cocaine was indicative of drug dealing was based on his experience and observation as a vete ran narcotics investig ator, and it aided the trier of fact in understanding the testimony presented by the state a nd in the determination of a fact in issue. As such, it was not improper under Evid.R. 704, ev en though it concerned the ultimate issue of whether the defendant was guilty of drug trafficking. Sufficiency and Manifest Weight {¶16} This court’s function on a review of the sufficiency of the evidence is: to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mi nd of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence ina light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the cr ime proven beyond a reasonable doubt. State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. {¶17} When a defendant asserts that his conviction is against th e manifest weight of the evidence, the court, “reviewing the entire record, weighs th e evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction mu st be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence we ighs heavily against the conviction.” State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). {¶18} Under the third assignment of error, Hawt horne claims his convi ction of possessing criminal tools was not supported by sufficient evidence. He argues the money and cell phone found in proximity to the drugs did not establish th e offense of possessing criminal tools. Under the fourth assignment of error, Hawthorne cl aims his conviction of drug trafficking and possessing criminal tools were against the manifest weight of the evidence. He argues that there was no evidence that any actual drug transaction was scheduled and that the presence of the drugs at best showed a possession of drugs for personal use. {¶19} The gist of Hawthorne’s argument is that the evidence against him for drug trafficking and possessing criminal tools is circumstantial only. {¶20} Circumstantial evidence and direct evidence inherently possess the same probative

value. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492, at paragraph one of the syllabus. “[A]ll that isrequired of the jury is that it weigh all of the evidence, direct and circumstantial, against the standard of proof bey ond a reasonable doubt.” Jenks at 272. “‘Circumstantial evidence is not only sufficient, but may also be more certain, satis fying, and persuasive than direct evidence.’”

State v. Hawthorne , 8th Dist. Cuyahoga No. 96496, 2011-Ohio-6078, ¶ 9, quoting Michalic v. Cleveland Tankers, Inc. , 364 U.S. 325, 330, 81 S.Ct. 6, 5 L.Ed.2d 20 (1960). {¶21} Here, the police found Hawthorne asleep be hind the wheel at a gas station pump at around 4:00 a.m. with 98 individually wrapped ro cks of crack cocaine on his lap. A cell phone and $292 in various denominations were also found on him, in addition to powdered cocaine

uncovered from above the driver’s side visor. It has long been established that otherwise innocuous objects such as bags, money, or cell phones can be used as criminal tools in drug trafficking and these items may constitute circumstantial evidence for drug trafficking. State v. Bowling , 8th Dist. Cuyahoga No. 93052, 2010-Ohio-3595, ¶ 60. See also State v. Forte , 8th Dist. Cuyahoga No. 99573, 2013-Ohio-5126, ¶ 10 (plastic baggies, digital scales, and large sums of money may be circumstantial evidence for drug trafficking); State v. Harris , 8th Dist. Cuyahoga No. 93758, 2010-Ohio-3423, ¶ 21 (a ce ll phone can be a criminal tool under circumstances that indicate they were intended for criminal use). {¶22} In this case, 98 individual bags of crack cocaine were found in Hawthorne’s lap, together with a cell phone and cash of $292 in various denominations. Sergeant Baeppler

testified about cell phones and cash as tools of the drug trad e. He testified the items found in

this case were consistent with a lower-level drug dealer. {¶23} The state produced suffici ent evidence, albeit circumstantial, to support Hawthorne’s conviction of po ssessing criminal tools. See, e.g., State v. Alexander , 8th Dist. Cuyahoga No. 90509, 2009-Ohio-597 ($544 in small denominations found in conjunction with2.25 grams of crack cocaine satisfied the elem ents for a conviction of criminal tools); Bowling,

supra (a cell phone and $250 found with five prepackaged bags of crack cocaine); State v.

Williams , 8th Dist. Cuyahoga Nos. 92009 and 92010, 2009-Ohio-5553 (12 individual, prepackaged bags of marijuana and $340 in cash); Fellows, 8th Dist. Cuyahoga No. 70900 ($170 in tens and twenties and a pa ger found in conjunction with a bag of 11 rocks of cocaine); State v.

Tolbert , 8th Dist. Cuyahoga No. 69158, 1996 Ohio App. LEXIS 1976 (May 16, 1996) ($460 and two pagers with 94 rocks of crack cocaine); State v. Williams , 8th Dist. Cuyahoga No. 63502, 1993 Ohio App. LEXIS 4237 (Sept. 2, 1993) ($278 in $20 bill denominations and a pager in conjunction with 188 rocks of crack cocaine). The third assignment of error lacks merit. {¶24} As to Hawthorne’s claim that his convic tions of drug trafficking and possessing criminal tools were against the manifest weight of the evidence, after reviewing the record before us and weighing the evidence and all reasonable in ferences, we cannot conclude that the jury in this case clearly lost its way and created such a manifest miscarriage of justice warranting a

reversal of Hawthorne’s convictions. The fourth assignment of error lacks merit as well. Jail Clothing {¶25} Under the first assignment of error, Ha wthorne claims his c onvictions must be

reversed because he was forced to a ppear in court wearing jail clothes. {¶26} We recognize the potential for prejudice when a defendant appears before a jury in jail clothes. Estelle v. Williams , 425 U.S. 501, 504, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976).

“The constant reminder of the accu sed’s condition implicit in such di stinctive, identifiable attire may affect a juror’s judgment.” Holbrook v. Flynn , 475 U.S. 560, 567, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986). The United States Supreme Court, however, declined to create a strict rule requiring the reversal of all convi ctions in which the defendant app eared before the jury in prisonclothing. Estelle at 507-508. Our inquiry focuses on whet her the accused’s appearance before the jury in jail clothes was compelled. Id . at 507. Our review of the record does not support the contention that the defendant was compelle d to stand trial in jail clothing. {¶27} The transcript reflects that Hawthorne had over two months to secure regular clothing for his trial — he was notified in N ovember 2014 that his trial was to commence at 8:00 a.m. on January 20, 2015. However, on th e morning of the trial on January 20, 2015, before the voir dire was to begin, his counsel in formed the trial court th e defendant was still in his prison clothing and requested a continuance of one hour for the defendant to change his clothing. The trial court denied the request for a continuance, citing the defendant’s own responsibility to be ready for the scheduled tria l and noting his family’s failure to bring the civilian clothing. The jury se lection took place when Hawthorne was in jail clothing. During

the lunch recess and before th e state’s opening argument, Ha wthorne changed into civilian clothing. {¶28} Because of the ample opportunity the defenda nt had in securing civilian clothing before trial, the record here does not show he was compelled to wear prison clothing to stand

trial. State v. Flowers , 8th Dist. Cuyahoga No. 91864, 2009-Ohio-4876, ¶ 19 (defendant did not show he was compelled to stand trial in jail clothing where one month before the trial date,

defendant’s counsel asked defendant’s parents to bring civilian clothes but they did not do so on the day of trial and they were told to bring the clothes the following day); State v. Dorsey , 8th Dist. Cuyahoga No. 72177, 1998 Ohio app. LEXIS 1727, *8 (Apr. 23, 1998) (defendant was not compelled to stand trial in prison clothing when the defendant had ample time before the trial date to have civilian clothes brought to him but did not make the effort).{¶29} In any event, Hawthorne has not demonstr ated how his brief appearance in prison attire during the jury selection prejudiced him. In State v. Grissom , 6th Dist. Erie No. E-99-029, 2000 Ohio App. LEXIS 4977 (Oct. 27, 2000), the defenda nt claimed that his appearance in jail clothing prejudiced him. The Si xth District observed that the ju ry did not convict appellant of all the charges against him, which indicated th at the jury “carefully considered the evidence relating to the charges rather than making a bla nket decision that appellant was guilty because he was dressed in jail cl othing at trial.” Id . at *8. {¶30} Similarly here, the jury did not convict Hawt horne of all charges against him. He was charged with trafficking over 10 grams of cocaine, which included the 8.9 grams of individually packaged cocaine on his lap and two gr ams of cocaine over the driver’s visor. The jury found, in Hawthorne’s favor, that he was not guilty of tra fficking over 10 grams of cocaine but guilty instead of the lesser included offense of trafficking over 5 grams of cocaine, which suggested that the jury carefully reviewed the evidence against him presented by the state.

Hawthorne has not demonstrated his brief appearance in pris on clothing before the trial commenced biased the jury against him. Th e first assignment of error lacks merit.

Forfeiture {¶31} Under the second assignment of error, Hawthorne argues his conviction of possessing criminal tools and the forfeiture sp ecifications constituted double jeopardy. This

claim is without merit. {¶32} R.C. Chapter 2981 governs forfeiture of pr operty. Property subject to forfeiture

includes contraband and inst rumentalities involved in th e commission of a felony. See R.C. 2981.01(B)(13), 2981.02(A)(1), 2981.02(A)(3)(a), a nd 2981.02(B). Criminal forfeiture isinitiated by including in the charging instrument a specification in compliance with R.C.

2941.1417. State v. Recinos , 5th Dist. Richland No. 14CA9, 2014-Ohio-3021, ¶ 21. {¶33} Here, the state sought forfeiture of th e cell phone and the cash by including a forfeiture specification in all three underlyi ng counts, as permitted by R.C. 2941.1417. {¶34} Hawthorne relies exclusively on State v. Casalicchio , 58 Ohio St.3d 178, 183, 569 N.E.2d 916 (1991), for his double jeopardy claim. Casalicchio has no application here. In

Casalicchio , the state filed a motion for forfeiture of the defendant’s automobile after the defendant was already convicted and sentenced for the underlyi ng criminal offenses. The Supreme Court of Ohio set aside the forfeiture on double jeopardy grounds. The court explained

that because the forfeiture of the defendant’s au tomobile was an additiona l criminal penalty that the state failed to seek prior to sentencing, the forfeiture violated both the Ohio and the federal

Constitutions. Id . at 183. Casalicchio does not apply to this case, because the state did not seek a new penalty after sentencing; rather, the forfeiture specifications were stated in

Hawthorne’s indictment. See, e.g., State v. Hall , 8th Dist. Cuyahoga No. 92952, 2010-Ohio-1665, ¶ 19; State v. Bailey , 8th Dist. Cuyahoga No. 81498, 2003-Ohio-1834, ¶ 72. The second assignment of error is overruled. {¶35} Judgment affirmed. {¶36} It is ordered that appellee recove r of appellant co sts herein taxed.

The court finds there were reas onable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. Ca se remanded to the tria l court for execution of

sentence.A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appella te Procedure.

______________________________________________ TIM McCORMACK, JUDGE EILEEN T. GALLAGHER, J., CONCURS; MARY EILEEN KILBANE, P.J., DISSENTS (WITH SEPARATE OPINION ATTACHED)

MARY EILEEN KILBANE, P.J., DISSENTING: {¶37} I respectfully dissent. I would find that Hawthorne’s constitutional rights were violated when he appeared before the jury in his jail clothes. {¶38} This court has previously recognized that a defendant’s constitutional right to a fair trial may be infringed by appearing before a jury in jail clothing. State v. Cooper , 8th Dist. Cuyahoga No. 99567, 2014-Ohio-817, ¶ 52, citing Estelle , 425 U.S. 501, 96 S.Ct. 1691, 48

L.Ed.2d 126. In Estelle , the United States Supreme Court f ound that the inquiry into whether a

conviction should be overt urned must focus on whether the accu sed’s appearance before the jury in jail clothes was compelled. Id. at 507; see also Dorsey , 8th Dist. Cuyahoga No. 72177, 1998 Ohio App. LEXIS 1727. The court reasoned th at the “focus upon compulsion is simple; instances frequently arise where a defendant pref ers to stand trial befo re his peers in prison garments.” Estelle at 508. The court stated: The right to a fair trial is a fundament al liberty secured by the Fourteenth Amendment. Drope v. Missouri , 420 U.S. 162, 172 (1975). The presumption of innocence, although not articulated in th e Constitution, is a basic component of a fair trial under our system of criminal justice. Long ago this Court stated: “The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary , and its enforcement lies at the foundation of the administrati on of our criminal law.” Coffin v. United States , 156 U.S. 432, 453 (1895).* * * [C]ompelling the accused to stand trial in jail garb operates usually against only those who cannot post bail prior to trial. Persons who can secu re release are not subjected to this condition. To im pose the condition on one category of defendants, over objection, w ould be repugnant to the concept of equal justice embodied in the Fourteenth Amendment. Griffin v. Illinois , 351 U.S. 12 (1956).

Id. at 503, 505-506. {¶39} A review of the record in the instant case reveals that prior to voir dire, defense counsel requested a continuance to allow Hawthorne to change in to his civilian clothes from his jail clothes. Defense counsel had Hawthorne’s clothes in th e back of the courtroom and requested one hour so the change of clothes coul d be facilitated. The tr ial court denied this request, noting that Hawthorne’s family did not follow the procedures set forth by the sheriff for changing into street clothes for trial. Then during the lunch break, the court allowed Hawthorne to change into his civilian clothes. Subsequently, Hawthorne was in his civilian clothes for opening statements and th e remainder of trial. {¶40} It is clear from the record that Hawthorne did not voluntarily wear jail clothes as strategy or to elicit sympathy from the jury. De fense counsel objected to the trial court’s denial of his continuance request, explaining that civilian clothes were immediately available for Hawthorne to change into. Compare State v. Flowers , 8th Dist. Cuyahoga No. 91864, 2009-Ohio-4876 (defendant was not for ced to stand trial in jail clot hes when trial counsel did not object to the fact that defendant was wearing jail clothes.); Dorsey (defendant was not forced to stand trial in jail clothes when the record demonstrated the trial court’s willingness to have someone bring civilian clothes for the defendant and the defendant’s comments revealed that he decided not to wear them because they were “messed up”).{¶41} While the court allowed Hawthorne to change into his civilian clothes during the lunch break, the prejudice to Ha wthorne could not be undone. Th e jury had already observed him in his jail clothes, and Hawthorne exercised his constitutional right not to testify. Hawthorne’s presumption of inno cence was prejudiced by exposing the jury to Hawthorne first in his jail clothes and then later in his civilian clothes. {¶42} Based on the foregoing, I would find that Hawthorne was compelled to wear jail clothing before the jury in violation of his constitutional right to a fair trial. As a result, I would sustain the first assignment of error.