author: WENDLANDT, J.

text:
    R.L. CURRIE CORP. v. EAST COAST SAND AND GRAVEL, INC.
    No. 17-P-1186
    Appeals Court of Massachusetts, Essex..
    Argued April 3, 2018 Decided August 21, 2018
    Jordan L. Shapiro (Eric L. Shwartz also present), Malden, for the plaintiff.
    William J. Fidurko, Westwood, for the defendant.
    Present: Wolohojian, Milkey, & Wendlandt, JJ.
   WENDLANDT, J.

This case presents the issue whether the defendant (having left heavy-duty equipment unlocked, unattended, and running idle with keys in the ignition on a lot shared with the plaintiff) has a duty of care to the plaintiff whose property was damaged by an unauthorized third-party user of the equipment. Concluding that the unauthorized use was not reasonably foreseeable, a Superior Court judge granted summary judgment in favor of the defendant on the plaintiff's claim for negligence. We reverse.

Background. We summarize the undisputed facts in the light most favorable to the plaintiff, the party opposing summary judgment. See Herbert A. Sullivan, Inc. v. Utica Mut. Ins. Co., 439 Mass. 387, 393, 788 N.E.2d 522 (2003). The parties shared a lot where they stored trucks and other heavy-duty equipment used in their respective businesses. The defendant provides snow plowing services.

During a snowstorm in January of 2014, at approximately 10:00 P.M. , the defendant's employee left a front-end loader running idle, unattended, and unlocked on the lot with the keys in the ignition. The employee returned to the lot at 2:00 A.M. In the interim, an unknown and unauthorized third party had driven the front-end loader into two of the plaintiff's trucks, causing extensive damage.

Although there had been previous incidents where items such as batteries and steel had been stolen from the lot, this was the first incident involving unauthorized use of the defendant's equipment. It was the defendant's practice to leave the keys to its front-end loaders, usually hidden, inside the vehicles. At least one of the defendant's employees, nonetheless, did not adhere to this practice because he did not want anyone else driving his vehicle.

Following this incident, the plaintiff filed a complaint alleging, inter alia, that the defendant was negligent in failing to properly secure the front-end loader. On cross motions for summary judgment, the judge granted the defendant's motion. The judge concluded that the defendant did not owe a duty of care to the plaintiff and that the plaintiff had no reasonable expectation of proving causation at trial because the damage to the plaintiff's trucks was not a reasonably foreseeable consequence of the defendant's actions. The plaintiff appealed.

Discussion. Summary judgment is to be granted where, viewing the evidence in the light most favorable to the nonmoving party, there are no genuine issues as to any material fact and the moving party is entitled to judgment as a matter of law. Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). See Cargill, Inc. v. Beaver Coal & Oil Co., 424 Mass. 356, 358, 676 N.E.2d 815 (1997). "[The] party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if he demonstrates ... that the party opposing the motion has no reasonable expectation of proving an essential element of that party's case." Dulgarian v. Stone, 420 Mass. 843, 846, 652 N.E.2d 603 (1995), quoting from Symmons v. O'Keeffe, 419 Mass. 288, 293, 644 N.E.2d 631 (1995). Our review is de novo. Chambers v. RDI Logistics, Inc., 476 Mass. 95, 99, 65 N.E.3d 1 (2016).

To prevail on a negligence claim, a plaintiff must prove that (1) the defendant owed the plaintiff a duty, (2) the defendant breached this duty, (3) damage to the plaintiff resulted, and (4) there was a causal relationship between the breach of the duty and the damage. See Jupin v. Kask, 447 Mass. 141, 146, 849 N.E.2d 829 (2006). "[T]he existence of a duty is question of law, and is thus an appropriate subject of summary judgment." Ibid. In addition, while each of the other elements typically involve questions of fact suitable for resolution by a jury, see, e.g., Mullins v. Pine Manor College, 389 Mass. 47, 58, 449 N.E.2d 331 (1983), proximate cause may be resolved as a matter of law, where "a plaintiff has no reasonable expectation of proving that 'the injury to the plaintiff was a foreseeable result of the defendant's negligent conduct.' " Hebert v. Enos, 60 Mass. App. Ct. 817, 820-821, 806 N.E.2d 452 (2004), quoting from Kent v. Commonwealth, 437 Mass. 312, 320, 771 N.E.2d 770 (2002).

"[A] defendant owes a duty of care to all persons who are foreseeably endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous." Jupin, 447 Mass. at 147, 849 N.E.2d 829, quoting from Tarasoff v. Regents of the Univ. of Cal., 17 Cal. 3d 425, 434-435, 131 Cal.Rptr. 14, 551 P.2d 334 (1976).

"The word 'foreseeable' has been used to define both the limits of a duty of care and the limits of proximate cause.... As a practical matter, in deciding the foreseeability question, it seems not important whether one defines a duty as limited to guarding against reasonably foreseeable risks of harm or whether one defines the necessary causal connection between a breach of duty and some harm as one in which the harm was a reasonably foreseeable consequence of the breach of a duty."

Whittaker v. Saraceno, 418 Mass. 196, 198-199, 635 N.E.2d 1185 (1994).

In the present case, the defendant maintains that the plaintiff has no reasonable expectation of proving that the third party's unauthorized use of the defendant's front-end loader, and the resulting harm to the plaintiff's trucks, were reasonably foreseeable consequences of leaving an unsecured and idling front-end loader in the shared lot. We disagree.

The Supreme Judicial Court's decision in Jesionek v. Massachusetts Port Authy., 376 Mass. 101, 378 N.E.2d 995 (1978), is instructive. There, the port authority left an unsecured forklift on its property with the keys in the ignition, and a drunken seaman then drove it into a civilian visitor. Id. at 102-104, 378 N.E.2d 995. The court declined to apply the "keys left in ignitions" line of cases, which had absolved a vehicle owner of liability for the actions of a third party who stole the vehicle. Id. at 105 n.3, 378 N.E.2d 995. The doctrine, the court stated, was "narrow" and thus inapplicable to the facts of the case before it because the third party had merely taken the vehicle for a joyride and not stolen it. Id. at 105, 378 N.E.2d 995. See Poskus v. Lombardo's of Randolph, Inc., 423 Mass. 637, 640, 670 N.E.2d 383 (1996) ("[T]he reasoning of cases involving keys negligently left in ignitions is no longer persuasive"). Instead, the court held that "[t]he act of a third person, intervening and contributing a condition necessary to the injurious effect of the original negligence, will not excuse the first wrongdoer, if such act ought to have been foreseen." Jesionek, supra at 105, 378 N.E.2d 995, quoting from Lane v. Atlantic Works, 111 Mass. 136, 139-140 (1872). See Poskus, 423 Mass. at 640, 670 N.E.2d 383 ("If a person negligently makes the theft of a motor vehicle possible, it would be reasonably foreseeable in certain circumstances that a third person could be harmed by the thief's negligent operation of the stolen vehicle").

In holding that the jury were warranted in finding that the seaman's actions and the civilian's injuries were reasonably foreseeable, the court in Jesionek relied on several factors, including that the forklift had an unusual steering system which made it dangerous in the hands of inexperienced drivers, the port authority had specific procedures for securing the forklift, which were not followed, and the port authority knew civilians and intoxicated seamen both frequented the area. Jesionek, 376 Mass. at 106, 378 N.E.2d 995. Similarly, here, the front-end loader is a large, heavy-duty vehicle capable of causing damage in the hands of inexperienced drivers, the defendant failed to follow its usual practice of securing its equipment by hiding the keys, there had been prior unauthorized entry onto the property, and the defendant knew that the plaintiff stored its equipment on the shared lot. In these circumstances, a jury could find that it was reasonably foreseeable that the front-end loader, when left unlocked, unattended, running idle, and with keys in the ignition, might be operated by an unauthorized individual so as to cause damage to the plaintiff's property on the shared lot. See ibid.

Poskus, relied upon by the defendant, does not support a different result. In that case, the court held that the defendant, a nightclub that negligently allowed a thief to steal a motor vehicle that its valet service had parked, did not owe a duty to the plaintiff, a local police officer, who saw the stolen vehicle hours after the theft, attempted to stop it, and was injured when he fell as he attempted to apprehend the fleeing thief. Poskus, 423 Mass. at 640, 670 N.E.2d 383. Here, the harm that occurred to the plaintiff's trucks was not so attenuated; indeed, a jury could reasonably find that it was precisely the type of harm that was a foreseeable consequence of leaving heavy-duty equipment unlocked, unattended, and idling on a shared lot on which the plaintiff stored its trucks.

Finally, the defendant maintains that, while theft of the front-end loader and its subsequent negligent operation might have been foreseeable, the specific third-party act here -- what appears to have been intentional vandalism of the plaintiff's vehicles -- was not. The foreseeability standard, however, "does not require the particular act which caused the injury to have been foreseen, only that the general character and probability of the injury be foreseeable." Glick v. Prince Italian Foods of Saugus, Inc., 25 Mass. App. Ct. 901, 902, 514 N.E.2d 100 (1987). In this case, as in Jesionek, 376 Mass. at 106, 378 N.E.2d 995, the damage to the plaintiff's property was not, as a matter of law, an unforeseeable consequence of the defendant's failure to secure its equipment.

Conclusion. That portion of the judgment entered on June 27, 2017, dismissing count 1 of the complaint is reversed. In all other respects, the judgment is affirmed.

So ordered.

      The motion judge also granted judgment for the defendant on the plaintiff's other claim for negligent entrustment. Having raised no arguments regarding this aspect of the judgment, the plaintiff has waived any challenge to it. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975) ("The appellate court need not pass upon questions or issues not argued in the brief"); John Hancock Mut. Life Ins. Co. v. Banerji, 447 Mass. 875, 887 n.20, 858 N.E.2d 277 (2006).

      According to the employee, he left the front-end loader running in order to charge the battery after having replaced the vehicle's alternator. He wanted to make sure the battery was charged that night in case a driver needed the vehicle in connection with that evening's snow removal.

      The plaintiff does not appeal from the judge's denial of its cross motion for summary judgment.

      The defendant does not argue on appeal that it is entitled to summary judgment on the other elements of the plaintiff's negligence claim.

      That line of cases includes Slater v. T.C. Baker Co., 261 Mass. 424, 425, 158 N.E. 778 (1927) ; Sullivan v. Griffin, 318 Mass. 359, 361, 61 N.E.2d 330 (1945) ; Ouellette v. Bethlehem-Hingham Shipyard, Inc., 321 Mass. 390, 393, 73 N.E.2d 592 (1947) ; and Galbraith v. Levin, 323 Mass. 255, 261, 81 N.E.2d 560 (1948) (same).

      Indeed, at least one of the defendant's employees never left keys in his vehicle because he feared unauthorized use. See Mullins, 389 Mass. at 54-55, 449 N.E.2d 331 (rejecting argument that risk of harm was not reasonably foreseeable where, inter alia, employee testified that he had foreseen such risk).

      In light of the foregoing, we do not address the plaintiff's remaining arguments on appeal.


source: Caselaw Access Project

author: BLAKE, J.

license: Public Domain

text:
    ADOPTION OF XARINA.
    No. 18-P-82.
    Appeals Court of Massachusetts, Barnstable..
    Argued July 9, 2018 Decided August 22, 2018.
    Michael S. Penta, Peabody, for the mother.
    Richard A. Salcedo, for Department of Children and Families.
    Kerri Zeldis, for the child.
    Rizwanul Huda, Jamaica Plain, for the father.
    Present: Blake, Sacks, & Ditkoff, JJ.

      A pseudonym, as are all names in this opinion.

   BLAKE, J.

Following a trial in the Juvenile Court, a judge found the mother unfit to parent her daughter Xarina, terminated her parental rights, and approved the plan of the Department of Children and Families (department). On appeal, the mother argues that in the circumstances of this case, it was error for the judge to terminate her parental rights when the father's rights were not terminated. She also claims it was error for the judge to approve the plan proposed by the department. We affirm.

1. Background. Xarina was born in September, 2006. The mother and the father divorced in 2009. Following the divorce, the mother had legal and physical custody of Xarina. When Xarina was approximately two years old, a report pursuant to G. L. c. 119, § 51A (51A report), was filed against the mother alleging neglect of the child. Thereafter, the father was awarded sole legal and physical custody of Xarina.

The father married his current wife, Susan, in 2011, and they have two children together. The department investigated numerous allegations against the family, including that the father had physically abused Adam, Susan's son from a prior relationship. In October, 2014, the department received a 51A report after school staff noticed bruises on Adam. As part of its investigation, the department's social workers spoke with Xarina, who, after some resistance, reported that she saw her father hitting Adam and pushing him to the ground. She also said that she did not want to get anyone into trouble and that the father told her that if she spoke to the department, she would be taken away. She stated that she did not feel safe in the home and thought someone would "kill her." In November, 2014, the department filed a petition pursuant to G. L. c. 119, § 24, alleging that Xarina was in need of care and protection. She was removed from the father's home and placed in the custody of the department that same day.

A court investigation report filed in February, 2015, stated that the department had little to no contact with the mother, and her whereabouts were often unknown. None of the mother's five children is in her custody. She has a history of homelessness, substance use, domestic violence, and untreated mental health issues.

By February, 2016, the mother had failed to meet with the department about Xarina and had failed to complete any of the tasks in her service plan. She failed to attend many of the Juvenile Court proceedings. By contrast, the father was cooperating with the department and stipulated in February, 2016, that he was currently unfit to care for Xarina. In March, 2016, the judge determined that the mother was unfit to parent Xarina and awarded the department permanent custody of the child. Neither the mother's nor the father's parental rights were terminated at that time.

In November, 2016, the department changed its goal for Xarina from reunification to adoption and sought to terminate the mother's and the father's parental rights. In April, 2017, on the day of trial, the department reported to the judge that after a lengthy discussion, the department had decided not to seek termination of the father's parental rights. The department proceeded against the mother. The mother, who was represented by counsel, did not attend the trial. Two department social workers testified. The adoption social worker testified that the plan for adoption that the department had filed with the court would be changed to a plan with a goal of guardianship following a department permanency planning conference. See G. L. c. 119, § 29B. The judge found that the mother was unfit and that it was in Xarina's best interests to terminate the mother's parental rights, and he approved the department's plan. This appeal followed.

2. Discussion. "To terminate parental rights to a child and to dispense with parental consent to adoption, a judge must find by clear and convincing evidence, based on subsidiary findings proved by at least a fair preponderance of evidence, that the parent is unfit to care for the child and that termination is in the child's best interests." Adoption of Jacques, 82 Mass. App. Ct. 601, 606, 976 N.E.2d 814 (2012). In determining whether the best interests of a child are served by termination of parental rights, the judge "shall consider the ability, capacity, and readiness of the child's parents ... to assume parental responsibility" (emphasis omitted). Adoption of Elena, 446 Mass. 24, 31, 841 N.E.2d 252 (2006), quoting from G. L. c. 210, § 3(c ). "Where there is evidence that a parent's unfitness is not temporary, the judge may properly determine that the child's welfare would be best served by ending all legal relations between parent and child." Adoption of Cadence, 81 Mass. App. Ct. 162, 169, 961 N.E.2d 123 (2012). "Unless shown to be clearly erroneous, we do not disturb the judge's findings, which are entitled to substantial deference." Adoption of Jacques, supra at 606-607, 976 N.E.2d 814.

a. The mother's unfitness. The mother argues that it was error for the judge to terminate her parental rights, because her actions did not trigger the filing of the care and protection petition, and that termination was not necessary where the permanency goal for Xarina changed from adoption to guardianship. She argues that the department sought termination of her parental rights to "punish her" for failing to visit with Xarina, and that the department's decision to leave the father's parental rights intact supports this argument.

Notably, the mother does not contend that the judge's finding that she is unfit is error. She concedes that she has not completed any of the tasks in her service plan, that she has visited Xarina only once during the pendency of the proceedings, and that she is not in a position to take custody of the child. Although "[u]nfitness does not mandate a decree of termination," Adoption of Imelda, 72 Mass. App. Ct. 354, 360, 892 N.E.2d 336 (2008), and termination is not a prerequisite for guardianship, it is unfair to leave a child in limbo indefinitely. See Adoption of Nancy, 443 Mass. 512, 517-518, 822 N.E.2d 1179 (2005). Indeed, as is the case here, termination is in the best interests of a child when it would bring some measure of stability to the child's life. Absent termination, the mother would have the right "to receive notice of or to consent to any legal proceeding affecting the custody, guardianship, adoption or other disposition of the child" (emphasis supplied). G. L. c. 210, § 3(b ). See Adoption of Willow, 433 Mass. 636, 647 n.11, 745 N.E.2d 330 (2001). As such, even though the goal for Xarina had changed from adoption to guardianship, termination of the mother's rights "significantly eases the [child's] path to a stable placement." Id. at 647, 745 N.E.2d 330. Once the mother's rights are terminated, "transition[ ] to [a] permanent home[ ] will be expedited" for the child, whether it be adoption or guardianship. Id. at 648, 745 N.E.2d 330.

The mother's claim that the department sought termination of her parental rights in order to punish her, because the department did not also seek to terminate the father's parental rights, also fails. As the mother acknowledged in her brief, it is well established that a judge may terminate the parental rights of one parent while keeping intact the parental rights of the other. See id. at 644, 745 N.E.2d 330. As the mother and father have not had a relationship for many years and do not constitute a single family for purposes of G. L. c. 119, § 1, see Adoption of Willow, supra, whether the father is unfit or whether his parental rights were also terminated were not material considerations in adjudicating the mother's parental rights. The department's decision not to seek to terminate the father's rights finds support in the lengthy period of time during which Xarina lived with him, his partial compliance with his service plan tasks, his consistent visits with Xarina, and his bond with her.

The judge's decision to sever the legal ties between the mother and Xarina was based on his determination that the mother was unlikely to work with the department to resolve her mental health issues, to address her substance use, and to improve her parenting skills. See Adoption of Nancy, 443 Mass. at 516, 822 N.E.2d 1179. Indeed, the judge made detailed findings, amply supported by the record, that the mother's failure to visit Xarina, engage in any services, and work with the department or notify them of her whereabouts demonstrated "ongoing serious parental neglect of [the child]." He also properly considered the requisite factors under G. L. c. 210, § 3(c ), and found that factors (i), (ii), (iii), (iv), (vi), (vii), (viii), (ix), (x), (xii), and (xiv) were applicable. Moreover, the judge explicitly assessed the mother's capacity to parent "within the context of [the child's] particular needs," and determined that the mother "lacks the capacity to meet [the child's] specialized needs." There was no error.

b. The department's plan. The mother next argues that it was error for the judge to approve the department's plan for guardianship of Xarina, as there was no rationale to explain why the department changed the goal from adoption to guardianship and why it served Xarina's best interests. In considering the issue of parental unfitness, "the judge must consider the [guardianship] plan proposed by [the department] before terminating parental rights." Adoption of Dora, 52 Mass. App. Ct. 472, 474, 754 N.E.2d 720 (2001). "[T]he judge is required to consider and meaningfully evaluate plans put forward by the department and by the parents." Adoption of Cadence, 81 Mass. App. Ct. at 170, 961 N.E.2d 123. The department's plan need not be "fully developed," Adoption of Paula, 420 Mass. 716, 722 n.7, 651 N.E.2d 1222 (1995), but it must lend itself to substantive consideration. See Adoption of Willow, 433 Mass. at 652-653, 745 N.E.2d 330 ("The adoption plan need not be fully developed to support a termination order; it need only provide sufficient information about the prospective adoptive placement so that the judge may properly evaluate the suitability of the department's proposal" [quotation omitted] ).

Here, the mother did not set forth her own plan for Xarina, and she was not required to do so. However, she does not challenge Xarina's placement with the current foster parents. Instead, the mother's only contention is that the judge did not adequately find that guardianship was in Xarina's best interests.

Although it would have been better practice for the department to offer evidence to explain why the goal was changed from adoption to guardianship, this is not fatal. The controlling consideration is the welfare of the child. See Adoption of Cadence, 81 Mass. App Ct. at 171, 961 N.E.2d 123. The judge's finding that continued placement with the foster family is in Xarina's best interests is amply supported by the record. She has been living with this family since November, 2014, and has thrived there. Her weight and hygiene have improved, she completes daily tasks without much prompting, and she is progressing academically. Xarina also sees herself in this home as she gets older. The current foster parents are both employed, have a suitable home, and have a strong commitment to and bond with Xarina. Ultimately, the judge found that Xarina had made "tremendous strides" in her foster home.

The department is not required to retry a parent's unfitness in the event the proposed plan for a child changes. Adoption of Nancy, 443 Mass. at 517, 822 N.E.2d 1179. Indeed, G. L. c. 119, § 29B, provides multiple options for permanency plans for children and does not expressly require the department to choose one exclusively. Adoption of Nancy, supra at 517, 822 N.E.2d 1179 ("The statute ... provides a greater range of permanent placement options for children than simply limiting placement to adoption ..."). In reviewing a trial judge's consideration of a plan, we will not disturb the decision absent an abuse of discretion or clear error of law. See Care & Protection of Yetta, 84 Mass. App. Ct. 691, 696, 2 N.E.3d 910 (2014). Here, there was none.

Decree affirmed.

      As discussed infra, the only issues before us pertain to the mother's rights and not to the decision of the department to withdraw its request to terminate the father's parental rights.

      The other children were also removed from the home at this time.

      The proposed guardians were the same couple with whom Xarina had been residing and who had been identified as the preadoptive family.

      This family was also identified as an adoption resource and a guardianship placement.


author: SACKS, J.

text:
    COMMONWEALTH v. Wilfredo SANTIAGO.
    No. 17-P-1009.
    Appeals Court of Massachusetts, Essex..
    Argued April 4, 2018 Decided August 22, 2018
    Edward Crane, Cambridge, for the defendant.
    David F. O'Sullivan, Assistant District Attorney, for the Commonwealth.
    Present: Rubin, Sacks, & Singh, JJ.
   SACKS, J.

Following a jury trial, the defendant was convicted of possession of a firearm, second offense, and possession of a loaded firearm. On appeal, the defendant argues that a Superior Court judge (motion judge) erred in denying his motion to suppress the firearm and some cash discovered during a stop of the vehicle in which the defendant was a passenger. The defendant asserts that police conduct during the stop -- including boxing the vehicle in and approaching with guns drawn -- escalated the encounter to an arrest, for which probable cause was lacking.

After considering the circumstances as a whole, we conclude that the officers' show of force was sufficiently significant to convert the stop to an arrest. Because the Commonwealth concedes that there was no probable cause to arrest the defendant at the time, the motion to suppress should have been allowed. Accordingly, we reverse the convictions.

1. Background. We summarize the motion judge's detailed findings of fact, supplementing with additional facts from testimony that the judge implicitly credited. See Commonwealth v. Isaiah I., 448 Mass. 334, 337, 861 N.E.2d 404 (2007), S.C., 450 Mass. 818, 882 N.E.2d 328 (2008). Here, the defendant concedes that police had reasonable suspicion to conduct an investigatory stop of the vehicle in which he was traveling, based on evidence of drug dealing as well as traffic violations. We therefore focus our recitation on the facts relevant to the defendant's challenge on appeal.

In the summer of 2014, State police were conducting an investigation into suspected drug dealing in Lawrence, centering on the defendant, and using a confidential informant. During the investigation, officers determined that the defendant was known to the Lawrence police and had a prior conviction of a firearms offense. The confidential informant told police that the defendant was selling cocaine and was "involved with firearms."

On August 6, 2014, police initiated surveillance of the defendant based on the informant's report that the defendant would be traveling to Lynn to pick up cocaine to bring to Lawrence. The surveillance team comprised multiple officers from the State police, the Federal Drug Enforcement Administration, and the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives, in unmarked vehicles. During the course of the surveillance, officers observed the defendant, along with three other men about whom police apparently had no information, depart a home in Lawrence in a red GMC Envoy sport utility vehicle. The defendant was seated in the right rear passenger's seat. The surveillance team followed the GMC surreptitiously. After making a number of stops in Lawrence and then in Lynn, at about 6:00 P.M. the defendant and his companions proceeded in the GMC to Route 114 westbound toward Lawrence.

When the GMC reached a point where the road widened from one to two lanes and motorists often accelerate to pass slower vehicles, it suddenly more than doubled its speed, operating well over the posted speed limit. Believing that the GMC's occupants had detected the surveillance, officers decided to stop the GMC, rather than waiting for its expected return to Lawrence, as they had originally planned.

Officers contacted a uniformed State trooper who was patrolling the area in a marked cruiser and asked him to stop the vehicle. The trooper observed the GMC cross the double yellow line in the middle of the road twice. He turned on his cruiser's flashing lights, and the GMC pulled over promptly. The trooper's cruiser and at least three other unmarked police cars moved in around the GMC, effectively boxing it in.

Four or five officers simultaneously approached the GMC's four doors, yelling for the occupants to raise their hands. At least two of the officers had their guns drawn. As one officer neared the GMC, he observed the defendant, who was still sitting in the right rear passenger's seat, reach forward, pull open the seat-back pocket in front of him, and stuff an object into it. Suspecting that the defendant had attempted to conceal a firearm, the officer opened the left rear door and ordered the rear seat passengers not to move. He observed a firearm in the seat-back pocket in front of the defendant.

Officers ordered the defendant and other passengers out of the GMC and recovered a loaded revolver from the seat-back pocket. The defendant was arrested and searched, and just under $5,500 in cash was found on his person. No drugs were found.

2. Discussion. The defendant agrees on appeal that the stop of the GMC was lawful and supported by observed traffic violations as well as reasonable suspicion of drug dealing. He maintains, however, that his motion to suppress was improperly denied because police conduct escalated the seizure to an arrest without probable cause. We agree.

In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings unless clearly erroneous, see Commonwealth v. White, 374 Mass. 132, 137, 371 N.E.2d 777 (1977), aff'd, 439 U.S. 280, 99 S.Ct. 712, 58 L.Ed.2d 519 (1978), and make an "independent determination on the correctness of the judge's 'application of constitutional principles to the facts as found.' " Commonwealth v. Haas, 373 Mass. 545, 550, 369 N.E.2d 692 (1977), S.C., 398 Mass. 806, 501 N.E.2d 1154 (1986), quoting from Brewer v. Williams, 430 U.S. 387, 403, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977).

"The Constitution does not require officers 'to gamble with their personal safety,' Commonwealth v. Robbins, 407 Mass. 147, 152 [552 N.E.2d 77] (1990), and police officers conducting a threshold inquiry may take reasonable precautions, including drawing their weapons, when the circumstances give rise to legitimate safety concerns." Commonwealth v. Haskell, 438 Mass. 790, 794, 784 N.E.2d 625 (2003). "Such steps do not automatically turn a stop into an arrest." Commonwealth v. Dyette, 87 Mass. App. Ct. 548, 556, 32 N.E.3d 906 (2015), quoting from Commonwealth v. Williams, 422 Mass. 111, 117, 661 N.E.2d 617 (1996).

Whether a police seizure has been transformed into an arrest "depends on the proportional relationship of the degree of intrusiveness on the defendant to the degree of suspicion that prompted the intrusion." Commonwealth v. Willis, 415 Mass. 814, 819, 616 N.E.2d 62 (1993). This determination is highly fact-specific, and in assessing the reasonableness of the officers' conduct, we view the facts and circumstances "as a whole." Williams, 422 Mass. at 116, 661 N.E.2d 617.

We have held that "[a]n approach with drawn guns is generally thought excessive in the absence of any suggestion that the defendant is armed or other circumstances suggesting the possibility of violence." Commonwealth v. Fitzgibbons, 23 Mass. App. Ct. 301, 308, 502 N.E.2d 142 (1986). Even with information suggesting that a defendant possesses a firearm illegally, however, police are not generally justified in drawing their guns in the absence of additional "fear-provoking circumstances." Commonwealth v. Bottari, 395 Mass. 777, 782, 482 N.E.2d 321 (1985). When considering a vehicle stop, "we also look to the number of police used to effectuate the stop and whether the movement of the automobile was impeded." Commonwealth v. Sanderson, 398 Mass. 761, 766, 500 N.E.2d 1337 (1986).

Here, the police response, viewed as whole, included the presence of multiple cars and officers, the use of four police vehicles to box the GMC in, and the approach of at least two officers with guns drawn. We conclude that this was disproportionate "to the degree of suspicion that prompted the intrusion" and constituted an arrest. Willis, 415 Mass. at 819, 616 N.E.2d 62. The surrounding circumstances here lacked factors present in other cases that held such precautions justified even absent probable cause.

Here, "[t]he officers' use of force was not precipitated by any actions of the defendant[ ], nor did the officers testify that they feared for their safety or the safety of others at the time they approached the [GMC] with their guns drawn." Bottari, 395 Mass. at 782, 482 N.E.2d 321. Though it is certainly relevant that police had information as to the defendant's prior nonspecific "involvement" in firearms and knew the defendant to have had a prior firearms conviction, they had no particular information suggesting that he possessed a firearm at the time of the stop. Cf. Willis, 415 Mass. at 815-816, 819, 616 N.E.2d 62 (officers had detailed information that defendant with previous arrest for armed robbery was carrying loaded stolen gun at time of seizure); Haskell, 438 Mass. at 793-794, 784 N.E.2d 625 (officers received reliable report that defendant was seen publicly loading handgun in high-crime area at 2:00 A.M. ); Commonwealth v. McKoy, 83 Mass. App. Ct. 309, 314, 983 N.E.2d 719 (2013) (defendant and companion were coming from direction of reported shooting, were only persons on street, and had hands in pockets).

The officers had no information about any history of violent conduct on the part of the defendant. Cf. Commonwealth v. Ruiz, 51 Mass. App. Ct. 346, 347-351, 746 N.E.2d 544 (2001) (police show of force did not transform seizure into arrest, where defendants were suspected of just having committed home invasion). Though police information regarding the defendant's possible drug dealing is relevant in our analysis, "case law often observes that the mere fact that drugs are involved does not support the view that guns or other weapons are present." Commonwealth v. Cabrera, 76 Mass. App. Ct. 341, 348, 921 N.E.2d 1026 (2010). See Commonwealth v. Washington, 449 Mass. 476, 482, 869 N.E.2d 605 (2007) ("we are reluctant to adopt a blanket rule that all persons suspected of drug activity are to be presumed armed and dangerous for constitutional purposes").

We acknowledge, as the Commonwealth argues, "that drug offenses frequently involve drug dealers being armed and that, in many cases, shootings and killings occur when a drug dealer is confronted by police, when a drug deal goes 'bad,' or when others try to steal the drugs." Commonwealth v. Hines, 449 Mass. 183, 189, 866 N.E.2d 406 (2007). See Commonwealth v. Cannon, 449 Mass. 462, 470, 869 N.E.2d 594 (2007) (same). But neither Hines nor Cannon involved any question whether a police display of force was disproportionate in particular circumstances. Neither decision suggested that police are justified in drawing their weapons whenever they approach a drug suspect. Cf. Commonwealth v. Jimenez, 438 Mass. 213, 216-220, 780 N.E.2d 2 (2002) (that drug dealers may often have guns does not justify no-knock search warrant in every drug case; what is required is probable cause to believe officer safety would be jeopardized by observing knock and announce rule in the particular circumstances).

At the time of the show of force here, police had not observed any furtive conduct by the defendant or his companions. Concerns about flight raised by the GMC's increase in speed would have been substantially alleviated when the vehicle promptly and uneventfully stopped when signaled by the marked cruiser. Nor had any of the GMC's four occupants refused any police orders. Cf. Commonwealth v. Torres, 433 Mass. 669, 670-671, 745 N.E.2d 945 (2001) (officer did not escalate stop to arrest by drawing gun, after passengers in vehicle he had stopped had "bent over" to "mess[ ] with something" on vehicle floor and three of them failed to obey instruction to place hands on heads).

The officers were a part of an organized surveillance team comprising multiple State and Federal officers and were not outnumbered by the defendant and his companions. Cf. Cabrera, 76 Mass. App. Ct. at 349, 921 N.E.2d 1026 (two officers, outnumbered by five drug suspects in dead-end alley at night, had legitimate safety concerns justifying call for backup before patfrisk). There was no evidence that the location of the stop was associated in any way with past crimes of violence. Cf. Dyette, 87 Mass. App. Ct. at 549, 556-557, 32 N.E.3d 906.

In urging that the police conduct here at issue was a stop rather than an arrest, the Commonwealth relies largely on Willis and Dyette. That reliance is unavailing. In Willis, the information available to police raised significant articulable safety concerns: at the time of the stop, the defendant was reasonably believed to possess a loaded, stolen handgun, and the defendant had a prior arrest for a violent crime involving a weapon. Willis, 415 Mass. at 815-816, 819, 616 N.E.2d 62. Here, the safety concerns were considerably less substantial. Police information as to the defendant's history with firearms was vague and did not involve violence, and police had no information that the defendant possessed any firearm at the time of the stop.

Similarly, Dyette involved multiple factors raising safety concerns not present here. In that case, officers in an unmarked car noticed the defendant trespassing in a park close to midnight. Dyette, 87 Mass. App. Ct. at 550, 32 N.E.3d 906. The park, closed and unlit, was known "as an area of high firearm activity, including homicides and other shootings." Id. at 549, 32 N.E.3d 906. After spotting the officers, the defendant and his companion fled, "colliding with each other as they ran." Id. at 550, 32 N.E.3d 906. Several officers gave chase on foot, but the defendant eluded them until a lone officer stationed at a park exit saw him, recognized him from "numerous" prior encounters "including a firearm arrest," and ordered him to the ground at gunpoint. Ibid.

In contrast to Dyette, where the defendant engaged in plain (and chaotic) flight from officers, and halted only after the challenged show of force, here the evidence of flight was more equivocal, and ameliorated by the prompt compliance by the driver of the GMC with the police signal to stop. Unlike in Dyette, the place of the stop in this case was neither one at which the defendant's presence was itself suspicious nor one associated with past violent crime. Additionally, Dyette involved a fleeing suspect's sudden encounter with a lone officer, who was forced to make a split-second decision about his own safety. Here the officers were engaged in a coordinated surveillance operation in which four police vehicles participated in the stop of the GMC; the officers decided when to make the stop and had time to discuss how they would proceed once the GMC pulled over.

We recognize that the fact-specific decisional law in this area may at times pose a difficult dilemma for police officers: "If the officer approaches a suspect[ ] ... with his gun still in his holster, he increases the risk that he will be shot. If, on the other hand, he protects himself by drawing his gun, he increases the risk that a court will set the criminal free by construing his action as an illegal arrest." Fitzgibbons, 23 Mass. App. Ct. at 305, 502 N.E.2d 142, quoting from United States v. Jackson, 652 F.2d 244, 249-250 (2d Cir.), cert. denied, 454 U.S. 1057, 102 S.Ct. 605, 70 L.Ed.2d 594 (1981). And we emphasize that even when police lack probable cause to arrest, they may draw their guns or otherwise show force, to protect themselves or others, when such a display is "proportional ... to the degree of suspicion" based on all relevant circumstances. Willis, 415 Mass. at 819, 616 N.E.2d 62. We have discussed supra some of the numerous decisions illustrating circumstances in which officers may reasonably draw their weapons. To those, we add Commonwealth v. Emuakpor, 57 Mass. App. Ct. 192, 193-195, 199, 782 N.E.2d 7 (2003) (two officers justified in blocking vehicle and approaching with guns drawn, where four occupants were suspected of just having committing armed robbery with gun).

We acknowledge that the question here is close, and our resolution of it necessarily "depends on the particular facts of [this] case." Williams, 422 Mass. at 118, 661 N.E.2d 617. We are constrained to conclude that police conduct here was not "commensurate with their suspicion." Willis, 415 Mass. at 820, 616 N.E.2d 62. The stop of the defendant thus constituted an arrest. Because the Commonwealth acknowledges that, at the time of the stop, there was no probable cause for an arrest, the defendant's motion to suppress should have been allowed.

Judgments reversed.

Verdicts set aside.

      After a jury trial on the underlying charge, the defendant pleaded guilty to the subsequent offense portion of the indictment.

      There was no evidence at the suppression hearing that officers knew the men's identities or of any criminal history they may have had.

      Based in part on concerns about the reliability of the confidential informant, the motion judge concluded that "[u]nquestionably, the police did not have probable cause to arrest at the time that the stop was made," and on appeal, the Commonwealth concedes the point.

      The court in Hines made the quoted observation in support of its interpretation of a statute providing enhanced punishment for felonies when a firearm was involved. Hines, 449 Mass. at 189, 866 N.E.2d 406. In Cannon, the court repeated the observation in the course of holding that the jury could reasonably infer that the felony-murder defendant knew that one of his coventurers was carrying a weapon when they robbed a drug dealer. Cannon, 449 Mass. at 470, 869 N.E.2d 594.

      The Commonwealth also relies on Commonwealth v. Moses, 408 Mass. 136, 143, 557 N.E.2d 14 (1990) (drug trafficking is "fraught with violence"), and Commonwealth v. Va Meng Joe, 40 Mass. App. Ct. 499, 510 n.13, 665 N.E.2d 1005 (1996), S.C., 425 Mass. 99, 682 N.E.2d 586 (1997) (noting "frequent association of guns with drug dealing"). Both of those decisions involved protective searches for weapons of drug suspects who had just made furtive gestures, not (as here) officers' display of their own weapons in effecting stops.

      The officer who gave the order to stop the GMC testified, "[I]f they were aware of surveillance, the chance for them fleeing when [the trooper] turned the lights on, in my opinion, had just gone way up."

      The trooper in the marked cruiser testified that he was given no information about the nature of the case and was instructed to follow the GMC and make a stop "once [he] saw a violation."

      The Commonwealth has not argued that the gun would have inevitably been discovered even if the officers had not approached the stopped vehicle in the manner that they did, nor did the judge make findings on that issue. See Commonwealth v. O'Connor, 406 Mass. 112, 115-119, 546 N.E.2d 336 (1989) (discussing inevitable discovery doctrine).


author: DIANE V. GRENDELL, J.

text:
    Jeffrey A. KOLENIC, Plaintiff-Appellant, v. Elizabeth M. KOLENIC, Defendant-Appellee.
    NO. 2017-G-0117
    Court of Appeals of Ohio, Eleventh District, Geauga County.
    Decided March 26, 2018
    Joseph P. Sontich, Jr., 8401 Chagrin Road, Suite 20B, Chagrin Falls, OH 44023 (For Plaintiff-Appellant).
    Scott S. Rosenthal, Schoonover, Rosenthal, Thurman & Daray, 1001 Lakeside Avenue, Suite 1720, Cleveland, OH 44114 (For Defendant-Appellee).
   DIANE V. GRENDELL, J.

{¶ 1} Plaintiff-appellant, Jeffrey Kolenic, appeals from the Judgment Entry of the Geauga County Court of Common Pleas, Domestic Relations Division, finding him in contempt. The issues to be determined by this court are whether a party demonstrates an inability to pay child and spousal support as a defense in contempt proceedings when he testifies that he earns less money than in his past employment and whether it is an abuse of discretion to order a party to serve a 30-day jail term under those circumstances. For the following reasons, we affirm the decision of the lower court.

{¶ 2} On August 9, 2011, Jeffrey filed a Complaint for Divorce from his wife of approximately 11 years, Elizabeth Kolenic. The couple has two children.

{¶ 3} Elizabeth filed a Motion to Show Cause on September 30, 2013, alleging, inter alia, that Jeffrey failed to pay temporary spousal support. At a hearing on that Motion, Jeffrey testified regarding his decreased income. He was fired from a management position at First Federal of Lakewood in March 2012, in which he made approximately $250,000 per year, after his assistant took a bank compliance test on his behalf. A letter presented showed that he was terminated due to "admission of fraudulent activity." Jeffrey was subsequently hired as a loan officer at Huntington Bank, receiving a $100,000 signing bonus. He described the job as being a "poor fit," and that he and his boss "did not see eye to eye." A document from Huntington was presented that showed he was terminated around May 2013 and was not suitable for rehire.

{¶ 4} In a July 24, 2014 Magistrate's Decision, subsequently adopted by the trial court, the magistrate found Jeffrey in contempt for failure to pay support and that he did not establish an affirmative defense, emphasizing he had been terminated from two jobs and was responsible for the decrease in his income.

{¶ 5} On March 12, 2015, a Judgment of Divorce was filed. Pursuant to the parties' separation agreement, Jeffrey was ordered to pay $1,500 a month toward a substantial spousal support arrearage and $1,000 per month in child support, until September 1, 2015, when the child support obligation would increase to $2,100 per month.

{¶ 6} Elizabeth filed an Amended Motion to Show Cause on May 27, 2016, to which she attached an affidavit alleging that Jeffrey had not made the foregoing payments.

{¶ 7} A hearing was held on August 22, 2016, at which the following pertinent testimony was presented:

{¶ 8} Jeffrey testified that he has been employed as a loan officer at First National Bank since June of 2015. In this job, he must "self-source" or look for business, and is paid commissions. When he began the job he "struggled" and had lost many of his "referral partners, and places and areas in which [he] used to get business from," although he did not specify how he lost particular clients and stated that he had continued to work in the same community or geographical area. He testified that business had "started to pick up" in the past few months. Jeffrey presented his W-2 from 2015, which showed he had been paid $15,933 from the time he became employed at First National. His "goal" was to earn approximately $66,000 in 2016.

{¶ 9} In relation to this significant decrease in his income, Jeffrey stated that, due to the Dodd-Frank law, the way commissions are earned has changed. He testified that loan officers "took anywhere from a 20 to 50 percent haircut depending [on] where they were working." He had not paid the support payments and medical bills as required by the Judgment Entry of Divorce because of his decreased income.

{¶ 10} Jeffrey testified that he lives in a home owned by his parents and does not have to pay housing costs, although he sometimes pays utilities. Jeffrey's father, Joseph Kolenic, testified that he pays some of Jeffrey's bills, but Jeffrey pays the mortgage "when he can." Jeffrey coaches two of his children's sports teams, which is beneficial for developing business connections, and has not sought a second job.

{¶ 11} Elizabeth testified that Jeffrey had not made the support payments as required or paid all of the children's medical bills, although he had made payments for one of the children to play multiple sports.

{¶ 12} In a November 3, 2016 Magistrate's Decision, the magistrate found that Jeffrey was in contempt and should be ordered to serve a 30-day jail term, which could be purged by paying the sums owed to Elizabeth. The magistrate emphasized that the parties had agreed at the time of the divorce to attribute an income of $175,000 to Jeffrey, although in the past he had made approximately $250,000 per year. The magistrate concluded that Jeffrey failed to do the following: show he took reasonable steps to comply with the order, demonstrate an inability to pay, provide evidence to substantiate claims of his 2016 earnings, and to document his commissions. Jeffrey's lack of income was attributed to his own misconduct, primarily his two prior terminations.

{¶ 13} Jeffrey filed Amended Objections to Magistrate's Decision on December 28, 2016.

{¶ 14} On April 4, 2017, the trial court issued both a Judgment Entry and a Decision, holding that there were "sufficient findings of fact and conclusions of law to support the Magistrate's Decision" and Jeffrey "failed to establish the affirmative defense of inability to pay." Jeffrey was ordered to serve 30 days in jail and pay a $250 fine, with the opportunity to purge by paying to Elizabeth $31,357.92 and her counsel $2,600 in attorney's fees within 90 days of the judgment, and pay $180 in medical costs within 30 days.

{¶ 15} Jeffrey timely appeals and raises the following assignment of error:

{¶ 16} "The trial court prejudicially erred in affirming the magistrate's ruling that plaintiff-appellant failed to demonstrate inability to pay as a defense to the finding of contempt for failure to pay all amounts of support per the order included in the divorce decree."

{¶ 17} "A reviewing court 'will not reverse the decision of the court below in a contempt proceeding in the absence of a showing of an abuse of discretion.' " Kolleda v. Kolleda , 11th Dist. Lake No. 2013-L-069, 2014-Ohio-2013, 2014 WL 1900633, ¶ 42, citing State ex rel. Ventrone v. Birkel , 65 Ohio St.2d 10, 11, 417 N.E.2d 1249 (1981). This court has described an abuse of discretion as a judgment "which does not comport with reason or the record," and one in which the court failed "to exercise sound, reasonable, and legal decision-making." (Citations omitted.) In re Beynenson , 11th Dist. Geauga No. 2012-G-3066, 2013-Ohio-341, 2013 WL 431061, ¶ 12.

{¶ 18} "[T]he burden of proof for civil contempt is clear and convincing evidence." (Citation omitted.) Dilley v. Dilley , 11th Dist. Geauga No. 2012-G-3109, 2013-Ohio-4095, 2013 WL 5346456, ¶ 23. "Clear and convincing evidence is * * * evidence sufficient to produce in the mind of the trier of fact a firm belief or conviction as to the facts sought to be established." In re Janson , 11th Dist. Geauga No. 2005-G-2656, 2005-Ohio-6712, 2005 WL 3476623, ¶ 33.

{¶ 19} Jeffrey concedes that he failed to pay child support, spousal support, and medical bills for the children as ordered. "Failure to pay court-ordered child support and alimony constitutes civil contempt." Dilley at ¶ 18 ; R.C. 2705.031.

{¶ 20} However, Jeffrey argues that the lower court erred by finding he failed to demonstrate his inability to pay as a defense to contempt.

{¶ 21} "It is well established in the law of Ohio * * * that a person charged with contempt for the violation of a court order may defend by proving that it was not in his power to obey the order." Stychno v. Stychno , 11th Dist. Trumbull No. 2008-T-0117, 2009-Ohio-6858, 2009 WL 5064144, ¶ 38, citing Courtney v. Courtney , 16 Ohio App.3d 329, 334, 475 N.E.2d 1284 (3d Dist.1984) ; Dilley at ¶ 25. "Once a person seeking contempt has demonstrated a defendant's failure to pay child support, the burden of proof shifts to the defendant to prove his or her inability to pay." Smith v. Smith , 11th Dist. Geauga No. 2013-G-3126, 2013-Ohio-4101, 2013 WL 5346486, ¶ 41 ; see State ex rel. Cook v. Cook , 66 Ohio St. 566, 64 N.E. 567 (1902), paragraph one of the syllabus ("In a proceeding in contempt against a party who has refused to comply with a money decree for alimony, it is not essential that the complaint allege that the party is able to pay the money. The decree imports a finding of the court that he is able to pay, and the burden is on him by allegation and proof to establish his inability.").

{¶ 22} Jeffrey's testimony indicated that, in his current job, he is earning an amount significantly lower than both his previous $250,000 salary and the $175,000 salary the parties had imputed to him. However, the magistrate expressed several grounds for rejecting the inability to pay defense.

{¶ 23} As an initial matter, to the extent that Jeffrey argues that the lower court improperly applied the standard to the facts in reaching its decision, we find no evidence that this was the case. The appropriate standards were stated and applied to the facts. Jeffrey specifically takes issue with the finding that the inability to pay defense can be rejected "due to the obligor's poor decision-making." The magistrate cited poor decision-making as a basis for rejecting the inability to pay defense, citing Faubel v. Faubel , 7th Dist. Mahoning Nos. 05-MA-101 and 05-MA-210, 2006-Ohio-4679, 2006 WL 2590604, which is a valid consideration. Courts often consider a contemnor's actions in determining whether he is truly unable to comply with an order or has created the situation leading to the lack of compliance. Borders v. Borders , 3d Dist. Crawford No. 3-84-20, 1986 WL 3800, *3 (Mar. 24, 1986) (inability to pay support caused by misconduct or neglect, including quitting one's job, is not a defense); see also Peach v. Peach , 8th Dist. Cuyahoga Nos. 82414 and 82500, 2003-Ohio-5645, 2003 WL 22411264, ¶ 39 ("[i]t appears that the husband's own poor decision-making in not selling the marital home contributed to his inability to comply with the terms of the agreement").

{¶ 24} In relation to the foregoing, the magistrate expressed concerns that Jeffrey was terminated from prior employment, concluding that his asserted inability to pay was the result of his own conduct. In the prior contempt proceedings, the magistrate concluded that Jeffrey was fired from his well-paying job at First Federal due to "fraudulent activity" and was also fired from a second job. These findings were not appealed by Jeffrey and were based on his testimony and documentation provided at the prior hearing. This was a relevant consideration in relation to the cause of his asserted inability to pay.

{¶ 25} Jeffrey takes issue with the magistrate's application of the prior finding that "he effectively admitted he caused his own dismissal from Huntington by violating the bank's lending policies so he would not have to pay back his signing bonus," which he contends was not supported by the evidence.

{¶ 26} While there was no specific testimony that Jeffrey quit his job to receive the signing bonus, the magistrate appeared uncomfortable with the circumstances surrounding the termination and Jeffrey's vague testimony that the job was a "poor fit." We find no abuse of discretion in the lower court's decision to consider the totality of Jeffrey's employment record to determine whether he is truly unable to pay or if his lack of income was due to his own behavior.

{¶ 27} As further support for its determination that Jeffrey failed to prove his inability to pay defense, the magistrate found that "in light of [Jeffrey's] previous successful career as a loan officer, when he earned about $250,000 per year for ten or more years, his claim that he is now unable to get clients is less than credible." While Jeffrey argues that the record indicates his difficulty in obtaining customers and gaining commissions through his work as a loan officer, it is apparent from the record that the magistrate found this testimony lacking credibility given his past ability to succeed in the industry and community where he continued to work. Witness credibility rests solely with the finder of fact. State v. Awan , 22 Ohio St.3d 120, 123, 489 N.E.2d 277 (1986).

{¶ 28} Pursuant to the record, Jeffrey had earned approximately $250,000 for the three years before the divorce was filed in this matter. While Jeffrey lost that employment before the divorce was finalized, the parties agreed to impute his income at $175,000. The fact that Jeffrey had started a new job at First National Bank around the time of the divorce was taken into account, with the support obligations increasing over time to allow him to "ramp up his income." When considering ability to pay, it is proper for a trial court to take into consideration the extent to which a party's employment is below his capabilities. See Frey v. Frey , 197 Ohio App.3d 273, 2011-Ohio-6012, 967 N.E.2d 246, ¶ 26 (3d Dist.) (finding that the contemnor lacked credibility in her claims that she attempted to find other employment and properly concluding that she was underemployed).

{¶ 29} To the extent that Jeffrey argued the 2010 Dodd-Frank reform law impacted his sales, it is noteworthy that the divorce and separation agreement, wherein Jeffrey agreed to pay the obligations and to the imputed income of $175,000, was filed in 2015. At that time, Jeffrey apparently did not believe he experienced any of the impacts now claimed.

{¶ 30} Finally, the magistrate's decision also noted that Jeffrey failed to demonstrate his income in 2016 as of the time of the hearing and did not show his commissions for that year. This conclusion is supported by the record. Jeffrey himself testified that, at the time of his testimony in August 2016, he was "having the best couple months that [he] had in over five years now." However, it was not made clear what amount of salary this translated to for the purposes of his ability to pay.

{¶ 31} Taking into account all of the factors present here, including Jeffrey's prior experience and ability to earn a substantial income, his failure to provide documentation of his income in 2016, his lack of a sufficient explanation of why he had fewer clients than in his prior employment, and that he was fired from two jobs (one due to acts considered "fraudulent"), we cannot hold that the lower court erred in concluding that Jeffrey failed to establish an inability to pay defense. See In re Edgell , 11th Dist. Lake No. 2014-L-126, 2015-Ohio-4427, 2015 WL 6449132, ¶ 48 (where, inter alia, the contemnor had a previous substantial income, did not provide evidence of his present income, and paid other bills rather than child support, it was not an abuse of discretion to reject his inability to pay defense).

{¶ 32} In his second issue, Jeffrey argues that the trial court acted unreasonably in sentencing him to a jail term of 30 days. He contends that this could cause him to lose his job and further his inability to pay support.

{¶ 33} Elizabeth correctly points out that Jeffrey filed no objection to the magistrate's decision as to this issue. "Except for a claim of plain error, a party shall not assign as error on appeal the court's adoption of any factual finding or legal conclusion * * * unless the party has objected to that finding or conclusion" by filing timely objections to the magistrate's decision. Civ.R. 53(D)(3)(b)(iv). "In appeals of civil cases, the plain error doctrine is not favored and may be applied only in the extremely rare case involving exceptional circumstances where error, to which no objection was made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the underlying judicial process itself." Goldfuss v. Davidson , 79 Ohio St.3d 116, 679 N.E.2d 1099 (1997), syllabus.

{¶ 34} Pursuant to R.C. 2705.05(A)(1), a court may impose a $250 fine and a "definite term of imprisonment of not more than thirty days in jail" on an accused found guilty of a first offense of contempt. The jail term that Jeffrey was ordered to serve was permissible under this statute. Jeffrey cites to no case law in support of an argument that the sentence for contempt was an abuse of discretion under these circumstances.

{¶ 35} Moreover, Jeffrey was given the opportunity to purge himself of the contempt and avoid the jail sentence provided he pays the amounts ordered by the court. "The contemnor is said to carry the keys of his prison in his own pocket * * * since he will be freed if he agrees to do as ordered." (Internal citation omitted.) Brown v. Executive 200, Inc. , 64 Ohio St.2d 250, 253, 416 N.E.2d 610 (1980).

{¶ 36} While Jeffrey argues that the court in Faubel , supra , allowed the contemnor to serve his sentence on the weekends to preserve his employment, it did not rule that this is a requirement or that failure to do so renders a sentence contrary to law. We find the trial court's sentence was well within its discretion.

{¶ 37} The sole assignment of error is without merit.

{¶ 38} For the foregoing reasons, the judgment of the Geauga County Court of Common Pleas finding Jeffrey in contempt, is affirmed. Costs to be taxed against appellant.

CYNTHIA WESTCOTT RICE, J., concurs in judgment only with a Concurring Opinion,

TIMOTHY P. CANNON, J., concurs in judgment only with a Concurring Opinion.

{¶ 39} I respectfully concur in judgment only. I agree with the majority opinion that the trial court did not abuse its discretion when it rejected appellant's inability-to-pay defense. Appellant failed to offer sufficient evidence to meet his burden of proof to establish an inability to pay as a defense to contempt. I also agree the sentence imposed by the court for the contempt was well within its discretion and authorized by R.C. 2705.05(A)(1). I concur in judgment only because the legal analysis in this case should not involve any issues beyond the two outlined above.

{¶ 40} I concur with the judgment of the lead opinion but only because of our deferential standard of review. It is undisputed that appellant's imputed income of $175,000.00 was highly exaggerated. That figure should not be disturbed, however, because appellant initially agreed to base the support computation on this figure. Nevertheless, I do not believe that the continued overstatement of imputed income based on past "poor decision making" will ultimately benefit either party. There does not appear to be any authority establishing guidelines as to when the penalty for "poor decision making" should come to an end. In this case, however, that time should come sooner rather than later.


text:
    STATE of Ohio, Plaintiff-Appellee, v. Jennifer M. OWENS, Defendant-Appellant.
    NO. 2017-A-0056
    Court of Appeals of Ohio, Eleventh District, Ashtabula County.
    Decided April 9, 2018
    Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellee).
    Patricia J. Smith, 206 South Meridian Street, Suite A, Ravenna, OH 44266 (For Defendant-Appellant).
   DIANE V. GRENDELL, J.

{¶ 1} Defendant-appellant, Jennifer M. Owens, appeals her convictions for Aggravated Possession of Drugs, Illegal Assembly or Possession of Chemicals for the Manufacture of Drugs, and Possessing Criminal Tools, in the Ashtabula County Court of Common Pleas. The issue to be determined by this court is whether convictions relating to possession of drugs and drug manufacturing tools are supported by the weight and sufficiency of the evidence when methamphetamine and items used for its manufacture were found in plain view in a house where the defendant was located and admitted she lived. For the following reasons, we affirm the judgment of the court below.

{¶ 2} On July 6, 2016, the Ashtabula County Grand Jury issued an Indictment, charging Owens with Aggravated Possession of Drugs (Count One), a felony of the first degree, in violation of R.C. 2925.11(A) and (C)(1)(d) ; Illegal Manufacture of Drugs (Count Two), a felony of the first degree, in violation of R.C. 2925.04(A) and (C)(3)(b) ; Illegal Assembly or Possession of Chemicals for the Manufacture of Drugs (Count Three), a felony of the second degree, in violation of R.C. 2925.041(A) and (C)(2) ; Endangering Children (Count Four), a felony of the third degree, in violation of R.C. 2919.22(B)(6) and (E)(3)(a) ; and Possessing Criminal Tools (Count Five), a felony of the fifth degree, in violation of R.C. 2923.24(A).

{¶ 3} A jury trial was held on June 12-14, 2017. The following pertinent testimony and evidence were presented:

{¶ 4} Deputy Brian Sterrick of the Ashtabula County Sheriff's Office, testified that during the course of an investigation on May 15, 2016, he went to 5434 West Maple Avenue in Geneva Township, looking for Owens, as well as her boyfriend, Harold Arkkelin and his brother, Scott Arkkelin. Sterrick spoke with the Arkkelins' grandmother, who indicated that Owens was at 5500 West Maple, which was owned by Harold. When Sterrick arrived at that address, Harold was outside and indicated that Owens was in the shower. However, Owens exited the home soon thereafter. After speaking briefly with Sterrick, she went back inside. Sterrick decided to enter the home based on an odor of marijuana and due to an arrest warrant for Owens.

{¶ 5} Inside the home, Sterrick observed Owens standing in the living room near a table with "crinkled" coffee filters, which were consistent with what he had seen at methamphetamine manufacturing sites. He also noted a jar with residue, marijuana, and a marijuana pipe nearby. Upon further investigation, he found additional items consistent with the manufacture of methamphetamine in the master bedroom, including a funnel, tubing, lithium batteries, and a bottle "with some sludge."

{¶ 6} Sterrick testified that Owens admitted she and her 15-year old daughter, Miranda Hawes, lived in the home. A prescription pill bottle and an EBT food assistance card, both in Owens' name, were found in the home. Sterrick testified that "it was obvious" Owens lived there. According to Sterrick, Hawes also stated she lived there and a bedroom contained items consistent with that statement, including a backpack, personal items, and "paperwork."

{¶ 7} Deputy Matthew Johns, a clandestine methamphetamine lab officer with the Ashtabula County Sheriff's Office, was called to 5500 West Maple. When he entered the living room, he saw indications of meth "lab material," including a mason jar and coffee filters, often used to separate "meth oil" out of the final product of methamphetamine. He located other items consistent with the manufacture of meth: butane, lighter fluid, lithium batteries, ammonium nitrate, funnels, tubing, scales, and packaging material. Many of these items were found in one drawer.

{¶ 8} Two "meth labs" were also located in the bedroom. These consisted of plastic soda bottles, in which the chemicals described above would typically be combined, along with Sudafed or other cold medicine. The two bottles contained liquid or sludge, which Johns recovered for testing. Drug paraphernalia used to ingest methamphetamine was also found in the bedroom. Some of the foregoing items were described as being in "plain view."

{¶ 9} Johns located the prescription bottle with Owens' name on it in the master bedroom and the food stamp card in a separate "back bedroom." He did not find evidence demonstrating that Owens had purchased the items used to manufacture methamphetamine.

{¶ 10} Anna Tabor, a forensic scientist at the Ohio Bureau of Criminal Investigation, tested the liquid substance samples collected by Johns. She identified the presence of methamphetamine in the liquid. She also found its presence on coffee filters recovered from the residence.

{¶ 11} At the close of the State's case, Owens moved for acquittal. The court granted the motion as to Count Two and Count Four and reduced Count Three to a third-degree felony, based on a lack of evidence that the crime occurred in the vicinity of a juvenile.

{¶ 12} For the defense, Miranda Hawes, Owens' daughter, testified that she and her mother lived at 282 North Avenue, rather than 5500 West Maple, prior to and on May 15, 2016. Owens was working near her home and did not have a driver's license. On May 15, Hawes, her friend, Kyla Hall, Harold Arkkelin, and Owens were cutting down a tree at 282 North Avenue and went to 5500 West Maple to get ratchet straps for transporting the wood. Owens went inside the home to use the restroom and get water. Hawes testified that she did not tell the officers she lived at the West Maple home and that she had never been there before, although she and Owens moved there in June, after this incident occurred.

{¶ 13} Kyla Hall, Hawes' friend, spends time with Hawes daily and testified that Hawes and Owens lived at 282 North Avenue at the time of this incident. According to Hall, Owens was always at the North Avenue home when she came to visit. Hall echoed Hawes' testimony about the events that occurred on May 15.

{¶ 14} Darcie Johns, Hall's stepmother, lives at 230 North Avenue, and testified that she was Owens and Hawes' neighbor who had been to their home many times. Pamela Juist, who also lives on North Avenue, testified that Hawes came to her house nearly every day to do odd jobs.

{¶ 15} Matthew Kush, who lived near 5500 West Maple, testified that he had not seen Owens or her daughter there, although he had seen Scott and Harold Arkkelin.

{¶ 16} Harold Arkkelin, Owens' boyfriend of approximately ten years, was incarcerated for the manufacture of drugs arising out of this incident. He testified that he was the owner of 5500 West Maple, rented it to tenants, and it had been recently vacated as of May 15. He then allowed his brother Scott to stay there temporarily.

{¶ 17} According to Harold, he and Owens were living at 282 North Avenue on May 15. He gave a similar version of events as provided by Hall and Hawes regarding May 15 and noted that prior to that date, Owens and Hawes had not been to the 5500 West Maple residence. Harold told police that the drugs did not belong to Owens and she had nothing to do with their manufacture. He did not hear Owens tell police that she lived at the residence.

{¶ 18} Owens testified that she lived at the North Avenue address on May 15 and moved to 5500 West Maple in June. Prior to that time, aside from May 15, she did not have "anything to do with" the residence. On May 15, she went inside to use the restroom. When police arrived, she did not tell them she lived there. She denied purchasing any of the items relating to the drugs and participating in manufacturing them, and stated that she was unaware of their existence.

{¶ 19} On June 14, 2017, the jury found Owens guilty of the remaining three counts. This was memorialized in a June 19, 2017 Judgment Entry.

{¶ 20} A sentencing hearing was held on August 1, 2017. The court ordered Owens to serve a term of three years in prison for Count One, two years for Count Three, and one year for Count Five, to be served concurrently for a total term of three years in prison. The trial court filed its Judgment Entry of Sentence on August 3, 2017.

{¶ 21} Owens timely appeals and raises the following assignments of error:

{¶ 22} "[1.] Appellant's convictions were based upon insufficient evidence to sustain the convictions. The trial court erred by denying Appellant's Crim.R. 29 motion on all counts granting the motion for only counts two and four.

{¶ 23} "[2.] The Appellant's convictions were against the manifest weight of the evidence."

{¶ 24} We will consider Owens' two assignments of error, relating to the weight and sufficiency of the evidence, jointly.

{¶ 25} In reviewing the sufficiency of the evidence, "[t]he 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." State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, following Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

{¶ 26} Whereas "sufficiency of the evidence is a test of adequacy as to whether the evidence is legally sufficient to support a verdict as a matter of law, * * * weight of the evidence addresses the evidence's effect of inducing belief." State v. Wilson , 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing State v. Thompkins , 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997). "[A] reviewing court asks whose evidence is more persuasive-the state's or the defendant's?" Id. An appellate court must consider all the evidence in the record, the reasonable inferences, the credibility of the witnesses, and whether, "in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." (Citation omitted.) Thompkins at 387, 678 N.E.2d 541. "Since there must be sufficient evidence to take a case to the jury, it follows that 'a finding that a conviction is supported by the weight of the evidence necessarily must include a finding of sufficiency.' " (Citation omitted.) State v. Arcaro , 11th Dist. Ashtabula No. 2012-A-0028, 2013-Ohio-1842, 2013 WL 1883838, ¶ 32.

{¶ 27} To convict Owens of Aggravated Possession of Drugs, the State was required to prove, beyond a reasonable doubt, that she did "knowingly obtain, possess, or use a controlled substance or a controlled substance analog." R.C. 2925.11(A).

{¶ 28} Regarding Illegal Assembly or Possession of Chemicals for the Manufacture of drugs, the State was required to prove that Owens did "knowingly assemble or possess one or more chemicals that may be used to manufacture a controlled substance in schedule I or II with the intent to manufacture" such a substance. R.C. 2925.041(A).

{¶ 29} Finally, the conviction for Possessing Criminal Tools required the State to prove that Owens did "possess or have under [her] control any substance, device, instrument, or article, with purpose to use it criminally." R.C. 2923.24(A).

{¶ 30} Initially, Owens does not dispute that items recovered from the home included chemicals and tools used to illegally manufacture a controlled substance, as well as methamphetamine. Thus, the element of the foregoing crimes in dispute is whether Owens was in "possession" of these illegal items. Owens argues that her presence in the home alone was not sufficient to establish possession.

{¶ 31} Pursuant to R.C. 2925.01(K), possession means "having control over a thing or substance, but may not be inferred solely from mere access to the thing or substance through ownership or occupation of the premises upon which the thing or substance is found."

{¶ 32} "Possession of drugs can be either actual or constructive." (Citations omitted.) State v. Adams , 11th Dist. Ashtabula No. 2012-A-0025, 2013-Ohio-1603, 2013 WL 1715606, ¶ 35. "Constructive possession exists when an individual knowingly exercises dominion and control over an object, even though that object may not be within his immediate physical possession." State v. Hankerson, 70 Ohio St.2d 87, 434 N.E.2d 1362 (1982), syllabus. To prove constructive possession, "[i]t must also be shown that the person was conscious of the presence of the object." Id. at 91, 434 N.E.2d 1362. "[C]onstructive possession of contraband may be proven solely by circumstantial evidence." State v. Fogle , 11th Dist. Portage No. 2008-P-0009, 2009-Ohio-1005, 2009 WL 580797, ¶ 30.

{¶ 33} We hold that there was sufficient evidence to sustain the convictions and to prove the element of possession. The evidence, viewed in a light most favorable to the State, showed that Owens admitted both she and her daughter lived inside of the home where the drugs and drug manufacturing items were located. In addition to officer testimony that her daughter's personal property was in the home, testimony also established that Owens' prescription bottle was located in the master bedroom and her EBT card was in a separate bedroom, indicating Owens had a presence within the home. Further, she was located by police standing in the living room near crumpled coffee filters, an item used in the manufacturing process. Many of the illegal or manufacturing items were stated to be in plain view and were in the master bedroom, where Owens' prescription bottle was located. This supports a conclusion that she was able to exercise control over the items and was "conscious of their presence," as is required to prove constructive possession.

{¶ 34} Further, the foregoing also applies to the Possessing Criminal Tools conviction, which has the additional element of a "criminal purpose." Pursuant to R.C. 2923.24(B)(3), possession of substances or articles "commonly used for criminal purposes, under circumstances indicating the item is intended for criminal use" is prima facie evidence of criminal purpose.

{¶ 35} Owens cites two cases for the proposition that there is insufficient evidence, and possession cannot be inferred, when narcotics are found in an area that is jointly occupied and where the appellant does not have exclusive access. State v. Haynes , 25 Ohio St.2d 264, 267 N.E.2d 787 (1971) ; State v. Pumpelly , 77 Ohio App.3d 470, 602 N.E.2d 714 (12th Dist.1991). Both are distinguishable from the present case. In Haynes , the court explained that "not only were these premises occupied by several persons, but also that the appellant had not occupied them for a week prior to the search." Id. at 270, 267 N.E.2d 787. Similarly, in Pumpelly , there was "[n]o evidence [that] placed appellant in the apartment at or near the time the cocaine was found." Id. at 476, 602 N.E.2d 714. In the present matter, Owens was inside the home, and standing near suspected items used to manufacture methamphetamine, when the illegal items were discovered. It certainly cannot be the case, as Owens seems to imply, that in any instance where multiple people live in a home with drugs, possession cannot be determined or proven unless the drugs are physically on a person's body or otherwise irrefutably shown to belong only to one individual.

{¶ 36} To the extent that Owens also argues that it was necessary to prove that she "aided or abetted" the criminal activity, this relates to complicity. See R.C. 2923.03(A)(2) (a person, "acting with the kind of culpability required for the commission of an offense" shall not "aid or abet another in committing the offense"). A defendant may "be convicted of either complicity or the principal offense if, acting with the culpability required for the commission of the principal offense, he aids or abets another in committing that offense." (Emphasis added.) State v. Farr , 9th Dist. Summit No. 15213, 1992 WL 41284, *2 (Mar. 4, 1992). Here, the jury was instructed as to both the principal offenses and complicity. Since there was sufficient evidence to support the elements of the principal offenses, it is unnecessary to also examine the elements of complicity.

{¶ 37} The remainder of Owens' arguments throughout both of her assignments of error relate to the weight of the evidence.

{¶ 38} Owens emphasizes that several witnesses testified she and her daughter lived on North Avenue on May 15, not on West Maple where the drugs were discovered, which undermines the possession element. Several of these witnesses, however, were friends or family members, raising potential credibility issues. Further, a West Maple neighbor's testimony that he had not seen Owens at the West Maple home, was of questionable value, since he admitted he could not constantly observe the home to be aware of all comings and goings. In contrast to the foregoing, Deputy Sterrick testified that Owens admitted she and her daughter lived at the West Maple home, a conclusion supported by his testimony about their personal property at the home. These issues relate purely to which witnesses the jury chose to believe. The trier of fact is in the best position to assess the credibility of witnesses. State v. DeHass , 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus.

{¶ 39} Further, it also would have been reasonable for the jury to conclude, even if Owens did not live solely at the West Maple house, that she spent time there, given the uncontroverted evidence of her prescription bottle and food assistance card, located in different rooms, and that she admitted to moving there less than two months after this incident. The presence of her personal items completely contradicts her statement that she had never been to the home before. The contention that her clothes were not found there is of limited value, given that officers noted their primary focus in the investigation was locating drugs and making the home safe rather than noticing and documenting each and every item of personal property. Again, this conflicting evidence was properly weighed by the jury in reaching its determination of guilt.

{¶ 40} To the extent that Owens points out that no DNA or fingerprints were taken, as noted above, constructive possession can be supported solely by circumstantial evidence and physical evidence is not required. Adams , 2013-Ohio-1603, at ¶ 38. "[C]ircumstantial evidence and direct evidence inherently possess the same probative value." (Citation omitted.) State v. Biros , 78 Ohio St.3d 426, 447, 678 N.E.2d 891 (1997).

{¶ 41} In weighing all of the evidence, the jury was entitled to believe the witnesses presented by the State and to discount Owens' contention that she did not live at the West Maple home or have a connection to the meth labs. Her constructive possession of the illegal items supports her convictions for each of the three offenses. See State v. Jackson , 11th Dist. Ashtabula No. 2002-A-0039, 2003-Ohio-5863, 2003 WL 22470869, ¶ 31-37 (where other adults are living in a home, with access to the area where drugs were discovered, a defendant can be found in constructive possession of drugs when she had access to the room where the drugs were located).

{¶ 42} The first and second assignments of error are without merit.

{¶ 43} For the foregoing reasons, Owens' convictions in the Ashtabula County Court of Common Pleas are affirmed. Costs to be taxed against appellant.

THOMAS R. WRIGHT, P.J., concurs in judgment only.

TIMOTHY P. CANNON, J., concurs.


author: ABELE, J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Michael D. SIMPSON, Defendant-Appellant.
    No. 17CA7
    Court of Appeals of Ohio, Fourth District, Gallia County.
    DATE JOURNALIZED: March 27, 2018
    Timothy P. Gleeson, Logan, Ohio, for appellant.
    Jason Holdren, Gallia County Prosecuting Attorney, and Jeremy Fisher, Gallia County Assistant Prosecuting Attorney, Gallipolis, Ohio, for appellee.
    DECISION AND JUDGMENT ENTRY
   ABELE, J.

{¶ 1} This is an appeal from a Gallia County Common Pleas Court judgment of conviction and sentence. A jury found Michael Simpson, defendant below and appellant herein, guilty of (1) possession of cocaine in violation of R.C. 2929.11(A) ; (2) possession of heroin, in violation of R.C. 2925.11(A) ; (3) trafficking in cocaine, in violation of R.C. 2925.03(A)(2) ; and (4) trafficking in heroin, in violation of R.C. 2925.03(A)(2). The trial court merged the possession and trafficking charges for both drugs, found appellant to be a major drug offender, and sentenced him to serve twelve and one half years in prison.

{¶ 2} Appellant assigns one error for review:

"THE TRIAL COURT ERRED BY FINDING SIMPSON TO BE A MAJOR DRUG OFFENDER."

{¶ 3} On March 11, 2016, a Gallia County Grand Jury returned an indictment that charged appellant with (1) possession of cocaine in an amount equal to or exceeding one hundred grams (190.424 grams), in violation of R.C. 2925.11(A), a first-degree felony, (2) possession of heroin in an amount equal to or exceeding one gram, but less than five grams (1.965 grams), in violation of R.C. 2925.11(A), a fourth-degree felony, (3) trafficking in cocaine in an amount equal to or exceeding one hundred grams (190.424 grams), in violation of R.C. 2925.03(A)(2), a first-degree felony, and (4) trafficking in heroin in an amount equal to or exceeding one gram, but less than five grams (1.965 grams), in violation of R.C. 2925.03(A)(2), a fourth-degree felony. Appellant pled not guilty to all charges.

{¶ 4} During a one-day trial, Ohio State Highway Patrol Trooper Matthew Atwood testified that, on March 11, 2016, he stopped a vehicle for a headlight violation and the failure to use a turn signal. Trooper Atwood determined that Jodie Arthur, the front seat passenger, owned the vehicle. The driver, Patricia Smith, indicated to Trooper Atwood that she and Arthur had driven to Dayton to get appellant, but that she did not know appellant's name. Appellant, the backseat passenger, sat with two cell phones on his lap and his hands in the air.

{¶ 5} Arthur told Trooper Atwood that when they stopped, appellant tried to give her something and told her to hide it. Arthur also granted Trooper Atwood consent to search her vehicle. When Trooper Atwood told Smith that Arthur had consented to a vehicle search, Smith admitted that her purse contained spoons and syringes because she is an addict. Trooper Atwood found three syringes and two spoons with heroin residue. Near where appellant's feet had been on the backseat floor, Trooper Atwood found a yellow grocery bag that contained a bag of opened Chex Mix. Buried in the Chex Mix bag were several plastic bags that contained what Trooper Atwood immediately recognized as crack cocaine and heroin.

{¶ 6} At trial, Arthur testified that Smith is her friend and she asked to borrow her car to pick up a friend in Dayton. Arthur testified that while Trooper Atwood spoke with Smith outside the vehicle, appellant said to her "take this, put it in your vagina. It's not going to hurt you, I promise it's going to be okay." Arthur testified that she did not turn around to see what appellant was attempting to give to her, but when she told him no, he asked her once or twice more. In addition, the state played a recording of the traffic stop that contained conversations between appellant and Smith, and included appellant saying "don't say nothing Patty," as Trooper Atwood removed the Chex Mix bag from the vehicle. At trial, the state also introduced evidence regarding the weight of each drug.

{¶ 7} On April 17, 2017, after hearing the evidence and counsel's arguments, the jury found appellant guilty on all counts. At the sentencing hearing, the trial court merged counts one and three, merged counts two and four and sentenced appellant on count three (trafficking in cocaine in an amount equal to or exceeding 100 grams in violation of R.C. 2925.03(A)(2) ) and count four (trafficking in heroin in an amount equal to or exceeding 1 gram but less than 5 grams in violation of R.C. 2925.03(A)(2) ). The court determined that (1) pursuant to R.C. 2929.14(A)(1) the maximum prison term for a conviction of a first-degree felony is eleven years, (2) appellant committed his crimes while on federal felony probation, as well as probation in West Virginia, and (3) appellant has a history of drug offenses and incarceration, noting that appellant's crimes occurred two or three months after his release from prison. The court sentenced appellant to (1) serve eleven years for count three, with a R.C. 2925.03(C)(4)(g) major drug offender classification, (2) serve eighteen months for count four, and (3) serve the prison terms consecutively to one another. Finally, the court ordered five years of postrelease control on count three and up to three years on count four. This appeal followed.

{¶ 8} In his sole assignment of error, appellant asserts that the trial court erred by finding him to be a major drug offender. Appellant notes that this appeal is not premised upon a factual review, but instead a conflict in the law with respect to the major drug offender classification.

{¶ 9} The interpretation of a statute is a matter of law that an appellate court reviews de novo. State v. Straley , 139 Ohio St.3d 339, 2014-Ohio-2139, 11 N.E.3d 1175, ¶ 9. A court must first look at the language of the statute. Id. , citing Provident Bank v. Wood , 36 Ohio St.2d 101, 105, 304 N.E.2d 378 (1973). If the language is clear and unambiguous, courts must apply the language as written. Straley at ¶ 9. However, "where there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant. Id. at ¶ 10, citing State v. Young , 62 Ohio St.2d 370, 374, 406 N.E.2d 499 (1980), quoting United States v. Bass , 404 U.S. 336, 348, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971). Further, the "primary role in statutory construction is to give effect to the legislature's intention." Cline v. Ohio Bur. of Motor Vehicles , 61 Ohio St.3d 93, 97, 573 N.E.2d 77 (1991), citing Carter v. Youngstown Div. of Water , 146 Ohio St. 203, 65 N.E.2d 63 (1946), paragraph one of the syllabus.

{¶ 10} In the case sub judice, the jury found appellant guilty of possession of cocaine ( R.C. 2925.11(A) ), possession of heroin ( R.C. 2925.11(A) ), trafficking in cocaine ( R.C. 2925.03(A)(2) ), and trafficking in heroin ( R.C. 2925.03(A)(2) ). The trial court merged the possession and trafficking convictions for both drugs and imposed an eleven-year sentence for trafficking in cocaine and eighteen months for trafficking in heroin. In its entry, the court quoted R.C. 2925.03(C)(4)(g) and concluded that "[p]ursuant to the statutory mandate, and upon its own finding, the Court finds that the Defendant is a major drug offender."

{¶ 11} R.C. 2925.03 lists drug trafficking offenses. Here, appellant violated R.C. 2925.03(A)(2). Subsection (C)(4) provides that "[i]f the drug involved in the violation is cocaine or a compound, mixture, preparation, or substance containing cocaine, whoever violates division (A) of this section is guilty of trafficking in cocaine. The penalty for the offense shall be determined as follows: * * * (g) If the amount of the drug involved equals or exceeds one hundred grams of cocaine and regardless of whether the offense was committed in the vicinity of a school or in the vicinity of a juvenile, trafficking in cocaine is a felony of the first degree, the offender is a major drug offender, and the court shall impose as a mandatory prison term the maximum prison term prescribed for a felony of the first degree." R.C. 2929.01 provides definitions for words and phrases in Chapter 2929 and, with regard to cocaine, R.C. 2929.01(W) provides: " 'Major drug offender' means an offender who is convicted of or pleads guilty to the possession of, sale of, or offer to sell any drug, compound, mixture, preparation, or substance that consists of or contains * * * at least one hundred grams of cocaine."

{¶ 12} Appellant asserts that his R.C. 2925.03(A)(2) trafficking conviction was for committing one of the actions of "prepare for shipment, ship, transport, deliver, prepare for distribution, or distribute" cocaine, but that none of these actions are included within the statutory definition of major drug offender. Under R.C. 2929.01(W), to be classified a major drug offender an offender must be convicted of "possession of, sale of, or offer to sell" a drug. Thus, appellant asserts that because appellant was not convicted of possession of cocaine (that offense merged into the trafficking offense), or for the sale of or offering to sell cocaine (he was convicted of the (A)(2) division of trafficking rather than the (A)(1) division that prohibits the sale or offering to sell), his conduct fell outside the statutory definition of a major drug offender. Consequently, appellant argues that his major drug offender classification is contrary to law.

{¶ 13} "It is a well-settled rule of statutory interpretation that statutory provisions be construed together and the Revised Code be read as an interrelated body of law." State v. Moaning , 76 Ohio St.3d 126, 128, 666 N.E.2d 1115 (1996). "Utilizing the rules of statutory construction contained in R.C. 1.12, 1.51, and 1.52, a specific statute, enacted later in time than a preexisting general statute, will control where a conflict between the two arises." Davis v. State Personnel Bd. of Rev. , 64 Ohio St.2d 102, 105, 413 N.E.2d 816 (1980) ; accord SER Clay v. Cuyahoga Cty. Med. Examiner's Office , 152 Ohio St.3d 163, 2017-Ohio-8714, 94 N.E.3d 498, ¶ 29. Thus, assuming, arguendo, that R.C. 29250.03(C)(4)(g) and R.C. 2901.01(W) conflict, the more specific controls.

{¶ 14} The state cites State v. Lee, 2d Dist. Montgomery No. 26300, 2014-Ohio-5265, 2014 WL 6679047, for authority that R.C. 2925.03 and R.C. 2925.11 are specific provisions and more recent than R.C. 2929.01(W). In Lee, the court held: "

R.C. 2941.1410 , introduced by S.B. No. 107, passed on October 20, 1999, approved on December 22, 1999, and effective March 23, 2000, is the general provision regarding the specification of major drug offender status required in an indictment or information. On the other hand, R.C. 2925.11, introduced by H.B. No. 241, passed on January 19, 2000, approved on February 15, 2000, and effective May 17, 2000, is the specific provision concerning drug possession offenses. R.C. 2925.11 was passed and approved after the general provision. The fact that R.C. 2925.11 is the more specific provision and the product of more recent legislation suggests that the legislature intended R.C. 2925.11 to control under the facts here." Lee at ¶ 8.

{¶ 15} Lee does not, however, specifically address the discrepancy in the case at bar. Lee addressed the conflict between R.C. 2925.11 (possession) and R.C. 2941.1410, the statute outlining the format of the major drug offender specification in the indictment. However, we do believe that the analysis is instructive. R.C. 2929.01(W), introduced by H.B. 130, effective on June 20, 2014, is the general provision that defines major drug offender status. On the other hand, R.C. 2925.03, introduced by H.B. 64, effective on September 29, 2015, is the specific provision concerning drug trafficking offenses. R.C. 2925.03 was enacted after the general provision, is the more specific provision, defines who is a major drug offender in the context of a trafficking charge, and is the product of more recent legislation. This suggests that the legislature intended R.C. 2925.03 to control under the facts here. See also State v. Elkins , 148 Ohio App.3d 370, 2002-Ohio-2914, 773 N.E.2d 593. Therefore, R.C. 2925.03(C)(4)(g) is the more specific statute and should control.

{¶ 16} In addition to his argument that his conduct fell outside the statutory definition of major drug offender, appellant also appears to argue that the state did not present sufficient evidence concerning the actual weight of the cocaine contained within the substances.

{¶ 17} State's Exhibit C-1, Report of Analysis, Controlled Substance Examination, established that the bag that Trooper Atwood retrieved contained 190.424 grams of cocaine. The Supreme Court of Ohio recently held that "the entire 'compound, mixture, preparation, or substance,' including any fillers that are part of the usable drug, must be considered for the purpose of determining the appropriate penalty for cocaine possession under R.C. 2925.11(C)(4)." State v. Gonzales , 150 Ohio St.3d 276, 2017-Ohio-777, 81 N.E.3d 419, ¶ 3. We see no reason that this reasoning should not apply to trafficking under R.C. 2925.03. Because the state produced evidence at trial to establish that appellant engaged in trafficking in cocaine in an amount exceeding 100 grams, we believe that a rational trier of fact could have found the essential elements of R.C. 2925.03(C)(4)(g) proven beyond a reasonable doubt.

{¶ 18} Accordingly, based upon the foregoing reasons we overrule appellant's assignment of error.

JUDGMENT AFFIRMED.

{¶ 19} I concur in judgment and opinion. But I also believe that appellant's contention that he was not convicted of possession of cocaine, because the trial court merged the jury's guilty verdict on that count with the verdict for trafficking in cocaine, is simply wrong.

{¶ 20} In 2010 the Supreme Court of Ohio resolved any confusion over the effect of merger for sentencing on the viability of the finding of guilt for the merged offense. The court did construe the meaning of "conviction" as it is used in R.C. 2941.25(A) to mean both the guilty verdict and the imposition of sentence or penalty. But the court held at paragraph three of the syllabus, "Because R.C. 2941.25(A) protects a defendant only from being punished for allied offenses, the determination of the defendant's guilt for committing allied offenses remains intact, both before and after the merger of allied offenses for sentencing." State v. Whitfield , 124 Ohio St.3d. 319, 2010-Ohio-2, 922 N.E.2d 182.

{¶ 21} Therefore Simpson remains guilty of possession of cocaine even though the trial court did not impose a sentence on that count. And having been found guilty of possession, he meets the definition found in R.C. 2929.01(W).

McFarland, J.: Concurs in Judgment & Opinion

Harsha, J.: Concurs with Concurring Opinion

      R.C. 2941.1410 provides: "(A) Except as provided in sections 2925.03 [trafficking] and 2925.11 [possession] of the Revised Code, the determination by a court that an offender is a major drug offender is precluded unless the indictment, count in the indictment, or information charging the offender specifies that the offender is a major drug offender. The specification shall be stated at the end of the body of the indictment, count, or information, and shall be stated in substantially the following form: 'SPECIFICATION (or, SPECIFICATION TO THE FIRST COUNT). The Grand Jurors (or insert the person's or prosecuting attorney's name when appropriate) further find and specify that (set forth that the offender is a major drug offender).' (B) The court shall determine the issue of whether an offender is a major drug offender. (C) As used in this section, 'major drug offender' has the same meaning as in section 2929.01 of the Revised Code."