State v. Howard

[Cite as State v. Howard, 

.]




                     IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                      HAMILTON COUNTY, OHIO



 STATE OF OHIO,                              :   APPEAL NO. C-230315
                                                 TRIAL NO. B-2100225
         Plaintiff-Appellee,                 :

                                             :     O P I N I O N.
   VS.
                                             :

 JAMAN HOWARD,                               :

       Defendant-Appellant.                  :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: December 20, 2023


Melissa A. Powers, Hamilton County Prosecuting Attorney, and Judith Anton Lapp,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Schuh & Goldberg, LLP, and Brian T. Goldberg, for Defendant-Appellant.
                    OHIO FIRST DISTRICT COURT OF APPEALS



CROUSE, Presiding Judge.

       {¶1}   Defendant-appellant Jaman Howard appeals his convictions for

aggravated trafficking in drugs and trafficking in drugs. In two assignments of error,

he challenges the trial court’s denial of his motion to suppress and argues that his

convictions were not supported by sufficient evidence and were contrary to the

manifest weight of the evidence. We find Howard’s arguments to be without merit and

affirm the trial court’s judgment.

                     I. Factual and Procedural Background

       {¶2}   Howard was stopped by a Village of Addyston police officer, and drugs

were found in his vehicle. The Addyston officer subsequently contacted Delhi

Township Police Officer Justin Laverty, who was assigned to the Drug Abuse

Resistance Task Force (“DART”). As a DART agent, Officer Laverty collaborated with

officers from various townships, villages, and cities in Hamilton County, including the

Village of Addyston, that lacked the knowledge or time to engage in drug

investigations.

       {¶3}   Officer Laverty met with Howard, who agreed to work with him as a

confidential informant. In return, the drug charges Howard faced following the stop

of his vehicle in Addyston were held in abeyance. Howard’s cooperation with Officer

Laverty was short lived because Howard ceased communicating with him. As a result,

Officer Laverty started conducting surveillance on Howard’s home. During the

surveillance, Officer Laverty witnessed what he believed to be two hand-to-hand drug

transactions. He accordingly arranged for Howard to be stopped on the drug charges

that had been held in abeyance. Drugs were found in the vehicle that Howard was

driving when this stop was executed. Officer Laverty obtained a warrant to search


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                     OHIO FIRST DISTRICT COURT OF APPEALS




Howard’s home. When the search was executed, various drugs, money, and a scale

were found in the basement of the home.

       {¶4}    Howard was subsequently indicted for aggravated trafficking in drugs,

a first-degree felony; aggravated possession of drugs, a second-degree felony;

trafficking in drugs, a fourth-degree felony; and possession of drugs, a fifth-degree

felony. Each of the trafficking offenses was alleged to have been committed in the

vicinity of a school or a juvenile. But prior to trial, the state dismissed this allegation,

resulting in a reduction of the charge of aggravated trafficking in drugs to a second-

degree felony and the charge of trafficking in drugs to a fifth-degree felony.

       {¶5}    Howard filed a motion to suppress, arguing that the initial stop of his

vehicle by the Addyston officer was improper and in violation of his Fourteenth

Amendment rights. He further argued that this improper stop is what led to his contact

with Officer Laverty, and that any physical evidence that was subsequently seized

during the execution of the search warrant by Officer Laverty was fruit of the

poisonous tree from the initial improper stop. The trial court denied Howard’s motion

to suppress.

       {¶6}    At a bench trial, Officer Laverty testified about his role as a DART agent.

He explained that DART agents often give arrestees a chance to become confidential

informants, and that Howard accepted such an offer. Howard signed paperwork

agreeing to become an informant, and he initially responded to Officer Laverty’s

attempts at contact. When Howard stopped responding, Officer Laverty had Addyston

prepare warrants and complaints to be filed on the charges that were held in abeyance.

       {¶7}    Officer Laverty further testified that on December 18, 2020, while

parked nearby in an undercover vehicle, he conducted surveillance on 3122 Pershing

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Court, which was the address that Howard had provided him. Officer Laverty observed

one or two small children in the yard of Howard’s home. A maroon SUV that Officer

Laverty was familiar with, and that was occupied by passengers that he recognized as

known drug users in the neighborhood, pulled up to Howard’s house. Officer Laverty

witnessed Howard come outside, approach the SUV, and engage in a hand-to-hand

transaction through the window of the vehicle. Describing this transaction, he stated,

“It wasn’t a big, bulky item in his hand. It was curled in his hand, which is typical of

drugs, and the same for the other passenger or buyer, and the hand curled up, you

can’t see what’s going on. They swap the drugs for the money in each other’s hands,

and go.” After the transaction, Howard went back inside.

       {¶8}    Officer Laverty witnessed this type of transaction occur twice between

Howard and the occupants of the maroon SUV in a 90-minute period. Each interaction

lasted less than 15 seconds. He testified that this behavior was indicative of drug

trafficking.

       {¶9}    After these two transactions occurred, Officer Laverty saw Howard drive

away from the house. At that point, he decided to have Howard arrested on the

Addyston complaints. He contacted the Cincinnati Police Violent Crimes Unit for

assistance in stopping Howard. A uniformed officer with that unit initiated a stop of

Howard’s vehicle. Three cell phones were recovered from Howard. Officer Laverty

testified that it was common for drug dealers to carry both a personal phone and a

business phone. Drugs were also found in the vehicle.

       {¶10} Officer Laverty testified that he obtained a warrant to search Howard’s

residence. He explained that Howard’s mother, who was the owner of the home, let

the officers executing the warrant inside. After learning that Howard’s room was in

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                    OHIO FIRST DISTRICT COURT OF APPEALS




the basement, the officers focused their search on that area of the home. Officer

Laverty testified that he observed personal effects of Howard’s in the basement

bedroom. While he conceded that he took no photographs of any such personal effects

and agreed that if he had found such an item, he would have photographed it, he

explained that “[t]here are some times you need to prove different things, then you

would take pictures if you didn’t already prove that. We were told this was Jaman

Howard’s room already, yes.”

       {¶11} According to Officer Laverty, a zipped travel bag with drugs in it,

specifically a white powder and orange pills, was found in a closet in the basement. A

large amount of currency in different denominations, which Officer Laverty explained

was indicative of drug trafficking, was found inside a coat in the closet. Additional

money was found in a shoebox in the basement. The total amount of currency

recovered was $3,047. A bag of powder similar to that found in the travel bag was

discovered inside a drawer of a poker table, and a bag of small colored pills was found

on top of the poker table. A black digital scale with white residue on it was also found

in the basement. Officer Laverty testified that the scale was also indicative of drug

trafficking. The drugs recovered in the basement were tested and were determined to

be methamphetamine and buprenorphine. Naloxone, which is an agent used to cut

drugs, was also found. The residue found on the scale was determined to be

methamphetamine.

       {¶12} Delhi Township Police Officer Michael Gerde, who assisted in the

execution of the search warrant, also testified at the bench trial. Officer Gerde stated

that he searched the basement closet, where he found pills and a baggie of drugs in a

toiletry bag, as well as currency in a jacket. He further stated that the quantity of drugs

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                     OHIO FIRST DISTRICT COURT OF APPEALS




found in the baggie was more indicative of drug trafficking than drug use by an

individual.

       {¶13} The trial court found Howard guilty of all charges. At sentencing, the

offense of aggravated possession of drugs was merged with the offense of aggravated

trafficking in drugs, and the offense of possession of drugs was merged with the

offense of trafficking in drugs. Applying the Reagan Tokes Law, the trial court

sentenced Howard to an indefinite term of three years to four years and six months of

imprisonment for the offense of aggravated trafficking in drugs. It further sentenced

him to a period of 12 months’ imprisonment for the offense of trafficking in drugs, and

it ordered the sentences to be served concurrently.

       {¶14} Howard now appeals.

                              II. Motion to Suppress

       {¶15} In his first assignment of error, Howard argues that the trial court erred

in denying his motion to suppress. He specifically contends that his motion should

have been granted because the search warrant obtained by Officer Laverty was lacking

in probable cause.

       {¶16} This court’s review of a trial court’s ruling on a motion to suppress

“presents a mixed question of law and fact.” State v. Wright, 1st Dist. Hamilton No. C-

210486, 

; State v. Burnside, 

, 2003-Ohio-

5372, 

. We must accept the trial court’s findings of fact as true if

competent, credible evidence supports them. Wright at ¶ 11; 

. But we

must “independently determine[], without deference to the trial court’s conclusion,

whether the facts satisfy the legal standard.” Wright at ¶ 11; 

.



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                      OHIO FIRST DISTRICT COURT OF APPEALS




        {¶17} At the hearing on Howard’s motion to suppress, the parties focused on

the issue of whether the search warrant obtained by Officer Laverty was supported by

probable cause.1 Officer Laverty testified about his placement with the DART unit and

how an Addyston police officer put him in contact with Howard. He discussed the

surveillance that he had conducted on Howard’s home, stating that he witnessed

Howard approach a vehicle that was parked on the street and engage in a “hand-to-

hand transaction.” Per Officer Laverty’s testimony, this happened multiple times and

was indicative of drug trafficking. He further discussed the subsequent stop of

Howard’s vehicle and how drugs were found in the vehicle.

        {¶18} Officer Laverty testified that he submitted an affidavit in support of his

request for a search warrant. The affidavit, search warrant, and return on the warrant

were admitted at the suppression hearing. Officer Laverty’s affidavit stated that he

believed drugs, currency, and other items and paraphernalia used for the sale of drugs

would be found at Howard’s residence. In support of such belief, the affidavit alleged

the following:

        In November of 2020 your Affiant received a call from Addyston Police

        Department reference [sic] Jaman Howard under arrest after a traffic

        stop. Upon the traffic stop, Heroin, Cocaine, and Methamphetamine

        was [sic] located on Jaman Howard’s person. Jaman Howard was cited

        for the drug paraphernalia and traffic violations then released pending

        the results from the Hamilton County Crime Lab.


1 The record indicates that Howard filed the motion to suppress in both this case and in the case

numbered B-2006679, which involved the underlying drug charges from Addyston. At the
suppression hearing, the state indicated that it could not go forward on the prosecution of the
Addyston case because the necessary officer had been terminated from his job and was not present.
That case was dismissed for want of prosecution.
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                    OHIO FIRST DISTRICT COURT OF APPEALS




       In December of 2020 Your Affiant spoke with Christopher Miller who is

       the Parole Officer for Jaman Howard. Christopher Miller confirmed

       that Jaman Howard gave the address of 3122 Pershing Court Cincinnati,

       Ohio 45211 as his residence. This address was also provided to the

       Bureau of Motor Vehicle as his current residence.

       In December of 2020 complaints and affidavits were signed and kept in

       hand.

       On today’s date, December 18, 2020, Your Affiant conducted

       surveillance on 3122 Pershing Court Cincinnati, Ohio 45211 and

       observed Jaman Howard exit the front door multiple times and

       approach vehicles on the street for a short period of time before entering

       back into the residence through the front door.

       On today’s date, December 18, 2020, Your Affiant observed Jaman

       Howard exit 3122 Pershing Court Cincinnati, Ohio 45211 and enter into

       a silver 2013 Kia Sorento and leave the area. Agents from the Drug

       Abuse Resistance Task Force conducted mobile surveillance until the

       City of Cincinnati Police could conduct a traffic stop for the traffic capias

       and the complaints in hand. Upon the traffic stop, Jaman Howard was

       arrested and Xanax was located in the vehicle.

       {¶19} The affidavit further alleged that based on Officer Laverty’s experience

with DART and the Drug Enforcement Administration, he was familiar with various

methods used by drug traffickers to distribute product, launder money, and evade law

enforcement. On this point, the affidavit stated:



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                    OHIO FIRST DISTRICT COURT OF APPEALS




       [D]istributors of larger quantities of narcotics commonly uses [sic]

       parcel delivery terminals and services, commercial airlines, rental cars

       or personal vehicles with hidden compartments installed to transport

       their illegal product from source cities to the Cincinnati area. Your

       Affiant is also aware, the subjects involved in this lucrative conduct will

       open small businesses or buy rental real-estate to facilitate the

       distribution as well as to evade police detection and launder money.

       Your Affiant is also aware large-scale narcotics distributors utilize

       certain methods in order to detect police surveillance and investigation.

       Many of their vehicles, properties and other assets will be placed and/or

       titled in the name of other persons associated with them. Your Affiant

       further submits that members of such drug distribution organizations

       utilize different individuals and multiple locations to conceal evidence

       of the drug organization from law enforcement. Affiant submits that

       there is probable cause to find that a search of the above premises under

       conditions set forth herein is reasonably likely to result in the recovery

       of evidence as described above.

       {¶20} Howard now contends that the trial court erred in determining that the

search warrant was supported by probable cause. “To establish probable cause to issue

a search warrant, the supporting affidavit must contain sufficient information to allow

a magistrate to draw the conclusion that evidence is likely to be found at the place to

be searched.” State v. Lang, 1st Dist. Hamilton No. C-220360, 

.

Probable cause will be found to exist where “a reasonably prudent person would

believe that a fair probability exists that the place to be searched contains evidence of

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                    OHIO FIRST DISTRICT COURT OF APPEALS




a crime.” 

 As this court has recognized, “only the probability, and not a prima facie

showing, of criminal activity is the standard of probable cause.” 

 quoting State v.

George, 

, 

 (1989), quoting Illinois v. Gates, 

, 

, 

 (1983). As such, it “is not a high bar.” 

quoting State v. Hobbs, 4th Dist. Adams No. 17CA1054, 

, ¶ 35,

quoting District of Columbia v. Wesby, 

, 57, 

, 

(2018).

       {¶21} Both a trial court ruling on a motion to suppress and an appellate court

reviewing the trial court’s decision “must give great deference to the magistrate’s

probable-cause determination.” Id. at ¶ 13. Such reviewing courts must be careful not

to engage in a de novo review when scrutinizing the sufficiency of an affidavit after the

fact. Id. Rather, the duty of a reviewing court “is to ensure that the issuing magistrate

had a substantial basis for concluding that probable cause existed,” and “[d]oubtful or

marginal cases should be resolved in favor of upholding the warrant.” Id., citing

George at paragraph two of the syllabus. A magistrate is entitled to make reasonable

inferences when determining whether probable cause exists to support the issuance of

a warrant. State v. Castagnola, 

, 

, 

.

       {¶22} The affidavit submitted by Officer Laverty in this case was less than

robust. The relevant facts from the affidavit established that in November of 2020,

Howard was the subject of a traffic stop in Addyston, during which various drugs were

found on his person; that Howard resided at the place sought to be searched; that on

December 18, 2020, the affiant observed Howard exit from his home multiple times,

approach a vehicle on the street for a short period of time, and then reenter the

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                    OHIO FIRST DISTRICT COURT OF APPEALS




residence; that Xanax was found in Howard’s vehicle when he was stopped on

December 18, 2020; and that the affiant had experience recognizing drug trafficking.

       {¶23} The last paragraph of the affidavit detailing common habits of drug

traffickers was in large part irrelevant, as the affidavit contained no allegation that

Howard engaged in any of the behavior described in that paragraph. And despite the

fact that Officer Laverty testified at trial that he witnessed Howard engage in hand-to-

hand drug transactions, he failed to include that information in the affidavit. Rather,

he described that same behavior in the affidavit by stating that Howard “exit[ed] the

front door multiple times and approach[ed] vehicles on the street for a short period of

time before entering back into the residence through the front door.”

       {¶24} Nonetheless, given the extreme deference that we must accord the

magistrate’s probable-cause determination, see Lang, 1st Dist. Hamilton No. C-

220360, 

, we hold that the affidavit contained sufficient

information to allow the magistrate to determine that evidence of drugs was likely to

be found at Howard’s residence. Based on the affidavit’s statements regarding the

drugs found on Howard’s person during the traffic stop in November 2020, the Xanax

found in his car in December 2020, and the observation of Howard exiting from his

residence multiple times and approaching vehicles in the street for a short period of

time before reentering the residence, the magistrate could have reasonably inferred

that Howard was obtaining drugs from inside his house and passing them to persons

in the cars parked on the street in exchange for money. See Castagnola, 

, 

, 

. And with a belief that Howard was dealing

drugs from his home, the issuing magistrate “may infer that drug traffickers use their

homes to store drugs and otherwise further their drug trafficking.” Hobbs, 4th Dist.

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Adams No. 17CA1054, 

, at ¶ 59, quoting United States v. Williams,

 (6th Cir.2008).

       {¶25} Although the affidavit in this case was thin, it was not devoid of

information indicating that evidence of drugs was likely to be found in Howard’s

residence. And, as we have explained, “[d]oubtful or marginal cases should be resolved

in favor of upholding the warrant.” Lang at ¶ 13, citing George, 

, 

, at paragraph two of the syllabus. We accordingly hold that the trial court

did not err in finding that the affidavit was supported by probable cause and in denying

Howard’s motion to suppress.

       {¶26} The first assignment of error is overruled.

                  III. Sufficiency and Weight of the Evidence

       {¶27} In his second assignment of error, Howard challenges the sufficiency

and weight of the evidence supporting his convictions.

       {¶28} When reviewing a challenge to 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. Walker, 

, 2016-

Ohio-8295, 

, ¶ 12, quoting State v. Jenks, 

, 

 (1991), paragraph two of the syllabus, superseded by constitutional amendment

on other grounds as stated in State v. Smith, 

, 

(1997), fn. 4. The court’s role is to ask “whether the evidence against a defendant, if

believed, supports the conviction.” (Emphasis sic.) State v. Jones, 

,

, 

, ¶ 16.



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       {¶29} A challenge to the manifest weight of the evidence, on the other hand,

requires this court to “review the entire record, weigh the evidence, consider the

credibility of the witnesses, and determine whether the trier of fact clearly lost its way

and created a manifest miscarriage of justice.” State v. Powell, 1st Dist. Hamilton No.

C-190508, 

, citing State v. Thompkins, 

,

 (1997).

       {¶30} While Howard argues that the evidence did not support his convictions

for both possession of drugs and trafficking in drugs, we only review his challenge to

the convictions for trafficking in drugs. The offenses of aggravated possession of drugs

and possession of drugs were merged at sentencing with the two trafficking offenses.

Because no sentences were imposed for the possession offenses, Howard was not

convicted of those offenses. State v. Cooper, 1st Dist. Hamilton No. C-180401, 2019-

Ohio-2813, ¶ 15. And because no judgment of conviction was entered, we do not

consider a challenge to sufficiency or the weight of the evidence regarding the offenses.

 (declining to address sufficiency argument for a merged count because no

judgment of conviction was entered for that count); State v. Bell, 8th Dist. Cuyahoga

No. 106842, 

 (holding that “merged counts are not convictions”

and declining to address a sufficiency argument as to the merged counts).

       {¶31} Howard was convicted of both aggravated trafficking in drugs and

trafficking in drugs in violation of R.C. 2925.03(A)(2). This statute provides that “[n]o

person shall knowingly * * * Prepare for shipment, ship, transport, deliver, prepare for

distribution, or distribute a controlled substance or a controlled substance analog,

when the offender knows or has reasonable cause to believe that the controlled



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                    OHIO FIRST DISTRICT COURT OF APPEALS




substance or a controlled substance analog is intended for sale or resale by the offender

or another person.”

       {¶32} Howard’s sole challenge to the sufficiency and the weight of the

evidence supporting his convictions is that the evidence failed to establish that he was

in possession of the drugs found in the basement of his home.

       {¶33} Pursuant to R.C. 2925.01(K), “ ‘possess’ or ‘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.” “Possession may be actual or constructive and may

be proven by circumstantial evidence.” State v. Devaughn, 1st Dist. Hamilton No. C-

180586, 

. Here, as Howard was not found in actual possession of

the drugs, the state had to establish his constructive possession of them.

       {¶34} Constructive possession may be found “when an individual exercises

dominion and control over an object, even though that object may not be within his

immediate physical possession.” State v. Wolery, 

, 

 (1976); Devaughn at ¶ 32. The individual found to be in constructive possession

“must be conscious of the presence of the object.” Devaughn at ¶ 32. Constructive

possession cannot be demonstrated by mere presence in the area where the object is

found. Id. at ¶ 33. Rather, proximity to the object “must be ‘coupled with another factor

or factors probative of dominion and control over the contraband.’ ” Id. at ¶ 34,

quoting State v. Kingsland, 

, 

, 

 (4th Dist.).

       {¶35} Following our review of the record, we hold that the evidence in this case

was sufficient to establish Howard’s constructive possession of the drugs found in the

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                    OHIO FIRST DISTRICT COURT OF APPEALS




basement. Officer Laverty’s testimony, if believed, established that Howard resided in

the basement of the home. The basement was the only room searched during the

warrant’s execution, and it contained personal effects of Howard’s. There was no

evidence in the record that Howard’s mother, who also resided in the home, was

involved in the use or sale of drugs. Further linking Howard to the drugs in the

basement and supporting a finding that he constructively possessed them was Officer

Laverty’s observation of Howard engaging in what he believed to be two hand-to-hand

drug transactions outside of the home and his testimony that drugs were found in

Howard’s vehicle during a traffic stop later that same day.

       {¶36} Additionally, the large quantity of drugs recovered supported an

inference that Howard was aware of the presence of the drugs, a necessary

requirement for constructive possession. See State v. Carpenter, 

, 

 (3d Dist.) (the “vast amount of drug evidence” found in the residence

allowed the jury to infer that appellant knew of the presence of the controlled

substances in the residence). Collectively, this evidence established that Howard was

conscious of the presence of the drugs and exercised dominion and control over them.

See Devaughn, 1st Dist. Hamilton No. C-180586, 

.

       {¶37} Howard’s trafficking convictions were also supported by the manifest

weight of the evidence. As the trier of fact, the trial court was in the best position to

judge the credibility of the witnesses. State v. DeHass, 

, 

 (1967), paragraph one of the syllabus; State v. Shepard, 1st Dist. Hamilton No. C-

190747, 

. The trial court was entitled to believe Officer Laverty’s

testimony that he witnessed Howard engage in hand-to-hand drug transactions and

to rely on that information to link Howard to the drugs in the basement. This was not

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                    OHIO FIRST DISTRICT COURT OF APPEALS




the rare case in which the trier of fact lost its way and committed a manifest

miscarriage of justice in convicting Howard. See Powell, 1st Dist. Hamilton No. C-

190508, 

.

       {¶38} Howard’s second assignment of error is accordingly overruled, and the

judgment of the trial court is affirmed.

                                                                   Judgment affirmed.

BERGERON and WINKLER, JJ., concur.



Please note:

       The court has recorded its entry on the date of the release of this opinion.




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