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Date: 05-02-2021
Case Style:
STATE OF OHIO vs. ANTHONY MARSHALL
Case Number: C-190748, C-190758
Judge: Candace C. Crouse
Court: IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
Plaintiff's Attorney: Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott Havlin,
Assistant Prosecuting Attorney
Defendant's Attorney:
Description:
Cincinnati, Ohio - Criminal defense attorney represented Anthony Marshall with nine counts
related to possession of and trafficking in various drugs and having a weapon while under disability charges
{¶4} Sergeant Pitchford, the supervisor of a team of law enforcement agents
with the Regional Narcotics Unit (“RENU”), testified that RENU obtained a search OHIO FIRST DISTRICT COURT OF APPEALS
warrant for a home on the west side of Cincinnati after receiving complaints from
neighbors about drug-trafficking activities. He and other RENU agents surveilled
the home and observed a vehicle, later discovered to belong to Marshall, pull into the
home’s garage. Pitchford ordered the agents to execute the search warrant. Upon
entering the house they observed two women sitting at the kitchen table with drugs.
The women informed the agents that Marshall was downstairs.
{¶5} Agent Kassem testified that he was the first to enter the basement,
where he observed Marshall walking away from one of the back rooms. He arrested
Marshall and then observed several little baggies of drugs approximately ten feet
away, lying on the basement floor, and near one of the back rooms. The agents
searched Marshall and discovered a cell phone and $900 in cash. They searched
Marshall’s car and discovered a firearm hidden in the door jamb between the driver’s
seat and the rear seat and a second cell phone.
{¶6} Agents Kassem and Davis testified that Marshall orally waived his
Miranda rights and agreed to be interviewed. They chose not to record the interview.
Kassem and Davis testified that Marshall admitted the drugs and the firearm were
his.
First and Second Assignments of Error
{¶7} We address the first and second assignments of error together. In his
first assignment of error, Marshall argues that the state failed to disclose evidence in
a timely manner, depriving him of his due-process rights under the Fifth, Sixth,
Eighth, and Fourteenth Amendments to the United States Constitution and Article I
of the Ohio Constitution. In his second assignment of error, he argues that the trial
court erred in denying his motion for a mistrial. OHIO FIRST DISTRICT COURT OF APPEALS
4
{¶8} Two exhibits and the failure to record the interview form the basis of
Marshall’s argument. The state did not provide the defense with Agent Davis’s
interview notes (exhibit seven) until 11:00 a.m. on September 24, with voir dire
beginning that afternoon. At the top of the interview notes, it was written that the
interview began at “11:08,” which was crossed out and replaced with “11:26.” The
Miranda rights waiver form (exhibit six) stated that Marshall was advised of his
Miranda rights at 11:23. Marshall did not sign the rights waiver form. Kassem and
Davis testified that Marshall orally waived his Miranda rights, but did not want to
sign the form and create a “paper trail” that might allow people to find out that he
was talking to the police.
{¶9} Defense counsel did not notice the time discrepancy on the interview
notes until September 25, after opening statements and the state had already begun
its case-in-chief. On the morning of September 26, counsel moved for a continuance
so that he could file a motion to suppress Marshall’s incriminating statements, or, in
the alternative, a mistrial. Counsel argued that if the agents had interviewed
Marshall prior to advising him of his Miranda rights, then any incriminating
statements should be excluded. The problem was, Agent Kassem had already
testified to some of Marshall’s incriminating statements.
{¶10} The court found that a motion to suppress would be inappropriate at
that point, because Marshall’s incriminating statements had already been presented,
and denied the motion for a continuance. The court also denied the motion for a
mistrial. It stated that defense counsel would have the ability to question Davis on
the time discrepancy between exhibits six and seven and object to their admission.
Ultimately, the court admitted both exhibits without objection. OHIO FIRST DISTRICT COURT OF APPEALS
5
{¶11} Regarding the decision to not record the interview, Agent Fangman
testified that the purpose of the interview was not to gather evidence against
Marshall, but to gather evidence about others in Marshall’s criminal organization.
He explained that the interview went unrecorded for Marshall’s safety since he was a
potential informant and the agents did not want to create a recording that could later
end up in the hands of anyone he informed on.
{¶12} First, Marshall contends that the state’s failure to timely provide the
interview notes violated the Brady rule, which requires the prosecution to disclose
exculpatory evidence to the defense. See Brady v. Maryland, 373 U.S. 83, 87, 83
S.Ct. 1194, 10 L.Ed.2d 215 (1963) (“[T]he suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good faith or bad faith of
the prosecution.”). But, there can be no Brady violation when the exculpatory
information was provided to the defense before or even during the trial. State v.
Wickline, 50 Ohio St.3d 114, 116, 552 N.E.2d 913 (1990), citing United States v.
Agurs 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). This court recently
explained that “a defendant is not prejudiced where the exculpatory material is
discovered before or during trial and there are other remedies available which allow
the exculpatory material to be entered into evidence.” State v. Jones, 1st Dist.
Hamilton No. C-180091, 2019-Ohio-4862, ¶ 60, citing State v. Aldridge, 120 Ohio
App.3d 122, 146, 697 N.E.2d 228 (2d Dist.1997). Because the interview notes were
provided the day trial was scheduled to begin, and there were other remedies
available to the defense to make use of that information, there was no Brady
violation in this case. OHIO FIRST DISTRICT COURT OF APPEALS
6
{¶13} Next, Marshall argues that the state violated Crim.R. 16, and therefore,
his motion for a mistrial should have been granted.
{¶14} Crim.R. 16 governs discovery in criminal cases. “The overall objective
of the criminal rules is to remove the element of gamesmanship from a trial. The
purpose of the discovery rules is to prevent surprise and the secreting of evidence
favorable to one party.” (Citations omitted.) State v. Darmond, 135 Ohio St.3d 343,
2013-Ohio-966, 986 N.E.2d 971, ¶ 19.
{¶15} Upon discovery of a violation of Crim.R. 16, a trial court may order a
mistrial, or any “other order as it deems just under the circumstances,” but “only
after inquiring into the circumstances surrounding the violation.” State v. Simmons,
2014-Ohio-3695, 19 N.E.3d 517, ¶ 41-42 (1st Dist.), quoting Darmond at ¶ 33.
In State v. Parson, 6 Ohio St.3d 442, 453 N.E.2d 689, syllabus (1983)
[the Supreme Court] established three factors that should govern a trial
court’s exercise of discretion in imposing a sanction for a discovery
violation committed by the prosecution. The three Parson factors a judge
should consider are (1) whether the failure to disclose was a willful
violation of Crim.R. 16, (2) whether foreknowledge of the undisclosed
material would have benefited the accused in the preparation of a
defense, and (3) whether the accused was prejudiced.
Darmond at ¶ 35.
{¶16} The court “ ‘must impose the least severe sanction that is consistent
with the purpose of the discovery rules.’ ” Simmons at ¶ 42. We review the trial
court’s decision for an abuse of discretion. Id. at ¶ 51. OHIO FIRST DISTRICT COURT OF APPEALS
7
{¶17} Knowledge on the part of a law enforcement officer is imputed to the
state, but a determination of willfulness focuses only on the acts of the prosecution.
Id. at ¶ 45. Marshall does not claim that the state intentionally withheld the notes,
and the record shows that it was Davis’s negligence that led to their late disclosure.
There is no evidence that the late disclosure of the interview notes was a willful
violation.
{¶18} Next, we must determine whether knowledge of the interview notes
earlier than the day trial was scheduled to begin would have benefitted Marshall in
preparing his defense. Counsel had prior notice that the agents would testify that
Marshall admitted to owning the drugs and the firearm and the agents did not record
the interview. Therefore, earlier knowledge of the interview notes would not have
changed his theory of defense. However, if the notes had been turned over in a
timely manner, defense counsel would have had more time to review the notes, catch
the discrepancy regarding the Miranda warning, prepare for cross-examination of
the agents, and file a motion to suppress Marshall’s statements prior to trial.
{¶19} Finally, we must determine whether Marshall suffered prejudice as a
result of the discovery violation. To establish prejudice, a defendant must
demonstrate that a reasonable probability exists that but for the discovery violation,
the result of the trial would have been different. See State v. White, 82 Ohio St.3d 16,
23, 693 N.E.2d 772 (1998) (discussing prejudice as it pertains to a claim of ineffective
assistance of counsel); United States v. Ross, 703 F.3d 856, 880 (6th Cir.2012)
(discussing prejudice as it pertains to a Brady violation).
{¶20} Davis testified that he was not sure why he crossed out 11:08 and wrote
11:26, but that perhaps they started the interview later than anticipated. He and OHIO FIRST DISTRICT COURT OF APPEALS
8
Kassem both testified that they advised Marshall of his Miranda rights before they
started the interview.
{¶21} A discovery violation is not prejudicial where it was not willful and the
evidence was disclosed in sufficient time for the defendant to effectively use it at
trial. Simmons, 2014-Ohio-3695, 19 N.E.3d 517, at ¶ 1. The most effective use of the
interview notes would have been a pretrial motion to suppress, which Marshall’s
counsel did not file because he received the notes a mere two hours before trial.
However, defense counsel effectively used the interview notes by cross-examining
Davis on the time discrepancy and pointing it out to the jury during closing
argument.
{¶22} Marshall’s argument that the motion to suppress would have “likely”
been granted is speculative. The time discrepancy and lack of a recording do raise
some suspicion that Marshall’s Miranda rights may have been violated. But Davis
and Kassem both testified that they advised Marshall of his Miranda rights prior to
interviewing him. Presumably, they would have testified the same way at a
suppression hearing. In granting a motion to suppress, the trial court would have
had to find that Davis and Kassem lacked credibility. Marshall has failed to show that
there is a reasonable probability that the trial court would have granted the motion
to suppress. Without a reasonable probability that the statements would have been
suppressed, we cannot say that the court abused its discretion in denying the motion
for a mistrial.
{¶23} Marshall also claims that the violation of Crim.R. 16 violated
fundamental fairness and the Due Process Clause. “There is no general OHIO FIRST DISTRICT COURT OF APPEALS
9
constitutional right to discovery in a criminal case * * *.” State v. Hale, 119 Ohio
St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 120. No due-process issue exists here.
{¶24} The first and second assignments of error are overruled.
Third Assignment of Error
{¶25} In his third assignment of error, Marshall contends that he was denied
the effective assistance of trial counsel as guaranteed by the Article I, Section 10 of
the Ohio Constitution and the Sixth and Fourteenth Amendments to the United
States Constitution.
{¶26} To establish an ineffective-assistance-of-counsel claim, an appellant
must show (1) that counsel’s performance was deficient, and (2) that the deficient
performance prejudiced the defense, thereby depriving appellant of a fair trial. State
v. Smith, 1st Dist. Hamilton No. C-180151, 2019-Ohio-5264, ¶ 63, citing Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
{¶27} Marshall must show that counsel’s errors were “so serious that counsel
was not functioning as the ‘counsel’ guaranteed * * * by the Sixth Amendment.” See
Strickland at 687. Debatable trial tactics do not demonstrate deficient performance
and “do not constitute a deprivation of the effective assistance of counsel.” Smith at ¶
63, citing State v. Clayton, 62 Ohio St.2d 45, 49, 402 N.E.2d 1189 (1980).
{¶28} Regarding the second prong, prejudice requires that there be “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” State v. Bradley, 42 Ohio St.3d 136, 142, 538
N.E.2d 373 (1989), citing Strickland at 687. This requires a showing that counsel’s
errors were “so serious as to deprive the defendant of a fair trial.” Strickland at 687. OHIO FIRST DISTRICT COURT OF APPEALS
10
{¶29} Marshall claims that his trial counsel was ineffective for not filing a
motion to suppress or asking for a continuance after he received Davis’s interview
notes.
{¶30} The interview notes are less than half a page long and contain a very
brief summary of the interview. Counsel was aware that Davis and Kassem would
testify that Marshall made incriminating statements. The notes would not have
provided new or surprising information. Therefore, counsel had no reason to believe
that a continuance was necessary when he first received the notes. Once he realized
that there was a time discrepancy in the notes, he did ask for a continuance.
Counsel’s performance was not deficient. See Strickland, 466 U.S. at 689, 104 S.Ct.
2052, 80 L.Ed.2d 674 (“[a] fair assessment of attorney performance requires that
every effort be made to eliminate the distorting effects of hindsight, to reconstruct
the circumstances of counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time”).
{¶31} Also, Marshall has failed to demonstrate that there is a reasonable
probability that a motion to suppress would have been granted. Thus, he has not
demonstrated prejudice. The third assignment of error is overruled.
Fourth Assignment of Error
{¶32} In his fourth assignment of error, Marshall contends that his
convictions were based upon insufficient evidence.
{¶33} The test for determining the sufficiency of the evidence is whether
“after viewing the probative evidence and inferences reasonably drawn therefrom in
the light most favorable to the prosecution, any rational trier of fact could have found
all the essential elements of the offense beyond a reasonable doubt.” State v. OHIO FIRST DISTRICT COURT OF APPEALS
11
MacDonald, 1st Dist. Hamilton No. C-180310, 2019-Ohio-3595, ¶ 12, quoting State
v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). It is a question
of law for the court to determine, the court is not to weigh the evidence. MacDonald
at ¶ 12. “When evidence is susceptible to more than one construction, a reviewing
court must give it the interpretation that is consistent with the judgment.” In re J.C.,
1st Dist. Hamilton No. C-180493, 2019-Ohio-4027, ¶ 20.
{¶34} In order to convict Marshall of the trafficking counts, the state had to
prove that he knowingly prepared for shipment, shipped, transported, delivered,
prepared for distribution, or distributed cocaine, heroin, and fentanyl-related
compounds, when he knew or had reasonable cause to believe that the cocaine,
heroin, and fentanyl-related compounds, were intended for sale or resale by him or
another person. See R.C. 2925.03(A)(2).
{¶35} To convict Marshall of the possession of cocaine, heroin, and fentanylrelated compounds, the state was required to prove that he knowingly obtained,
possessed, or used cocaine, heroin, and fentanyl-related compounds. See R.C.
2925.11(A).
{¶36} To convict Marshall of aggravated possession of drugs, the state had to
prove that he knowingly obtained, possessed, or used methamphetamine. See R.C.
2925.11(A) and 2925.11(C)(1).
{¶37} To convict Marshal of possession of drugs, the state was required to
prove that he knowingly obtained, possessed, or used buprenorphine, and that he
was previously convicted of a drug-abuse offense. See R.C. 2925.11(A) and
2925.11(C)(2)(a). OHIO FIRST DISTRICT COURT OF APPEALS
12
{¶38} Finally, to convict Marshall of having a weapon while under a
disability, the state had to prove that he knowingly acquired, had, carried, or used a
firearm after being convicted of a felony drug-abuse offense. See R.C. 2923.13(A)(3).
{¶39} Marshall argues that the state failed to present sufficient evidence that
he possessed or trafficked any of the drugs. Regarding the charge for having a
weapon while under a disability, Marshall stipulated to a prior felony conviction for a
drug-abuse offense, but argues that the state failed to prove that he possessed the
firearm.
{¶40} Kassem testified that after arresting Marshall he observed several little
baggies containing drugs approximately ten feet away from Marshall, in the area
where Marshall had just been. Agents found the firearm hidden in the door jamb of
his car. Kassem and Davis testified that Marshall admitted ownership of the drugs
and the firearm.
{¶41} Regarding the trafficking convictions, Kassem and Davis testified that
when drugs are packaged in small individual baggies, as was the case here, that is a
sign that the drugs were being prepared for distribution. See State v. Anderson, 4th
Dist. Highland No. 18CA14, 2019-Ohio-395, ¶ 19. Marshall was arrested with over
$900 in cash on his person, and two cell phones, both of which are indicative of
trafficking. See State v. Parks, 3d Dist. Seneca Nos. 13-19-18 and 13-19-19, 2020-
Ohio-145, ¶ 27 (multiple cell phones is indicative of drug trafficking); State v. Hall,
11th Dist. Erie Nos. 2019-L-027 and 2019-L-031, 2019-Ohio-4000, ¶ 45 (large
amount of cash indicative of trafficking); State v. Martin, 5th Dist. Richland No.
17CA90, 2018-Ohio-3903, ¶ 47 (firearms, scales, baggies, and large amounts of OHIO FIRST DISTRICT COURT OF APPEALS
13
currency are indicators of trafficking). The convictions were based upon sufficient
evidence. The fourth assignment of error is overruled.
Fifth Assignment of Error
{¶42} In his fifth assignment of error, Marshall contends that his convictions
were against the manifest weight of the evidence. In reviewing such a claim, “we
review the record, weigh the evidence and all reasonable inferences, consider the
credibility of the witnesses, and determine whether the trier of fact, in resolving
conflicts in the evidence, ‘clearly lost its way and created such a manifest miscarriage
of justice that the conviction must be overturned.’ ” Martin 20 Ohio App.3d at 175,
485 N.E.2d 717. Reversal of a conviction and a grant of a new trial should only be
done in “exceptional cases in which the evidence weighs heavily against the
conviction.” Id.
{¶43} “The trier of fact is in the best position to judge the credibility of the
witnesses and the weight to be given to the evidence presented.” State v. Carson, 1st
Dist. Hamilton No. C-180336, 2019-Ohio-4550, ¶ 16.
{¶44} Marshall did not present any evidence in his defense. He complains of
the agents’ decision to not record the interview, and the lack of physical evidence
corroborating their testimony. Agent Fangman testified that it would have been a
waste of resources to send the baggies or firearm for DNA testing or fingerprinting,
because Marshall admitted the drugs and firearm were his. There is no requirement
that interviews of suspects be recorded, and the jury was free to reject the agents’
testimony regarding Marshall’s admissions. We are not persuaded that the jury
clearly lost its way and created a manifest miscarriage of justice. The fifth
assignment of error is overruled. OHIO FIRST DISTRICT COURT OF APPEALS
14
Sixth Assignment of Error
{¶45} In his sixth assignment of error, Marshall contends that the record
does not support the court’s decision to impose consecutive sentences and that the
court did not make the consecutive-sentencing findings required by R.C.
2929.14(C)(4).
{¶46} We review criminal sentences pursuant to R.C. 2953.08(G)(2):
The appellate court may [increase, reduce, otherwise modify, or vacate a
sentence] if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court’s findings
under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4)
of section 2929.14, or division (I) of section 2929.20 of the Revised Code,
whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶47} Marshall does not challenge the length of any of his individual
sentences. He challenges the trial court’s decision to run the sentences
consecutively, arguing that consecutive sentences violated the principles and
purposes of sentencing delineated in R.C. 2929.11 and 2929.12 and that the record
does not support consecutive sentences.
{¶48} Consecutive sentences are reviewed solely under R.C.
2953.08(G)(2)(a). State v. Gwynne, 158 Ohio St.3d 279, 2019-Ohio-4761, 141
N.E.3d 169, ¶ 16. Therefore, we only consider whether the record supports the
sentencing court’s findings under R.C. 2929.14(C)(4). Id. at ¶ 18. We do not review
consecutive sentences under R.C. 2929.11 or 2929.12. Id. OHIO FIRST DISTRICT COURT OF APPEALS
15
{¶49} “Imposition of consecutive sentences is proper only when the trial
court makes the findings required by R.C. 2929.14(C)(4) at the sentencing hearing
and incorporates its findings into its sentencing entry.” State v. Jackson, 1st Dist.
Hamilton Nos. C-180245 and C-180246, 2019-Ohio-3299, ¶ 27, citing State v.
Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37. The court is not
obligated to state reasons to support its findings and no “talismanic incantation” of
the words of R.C. 2929.14(C)(4) is required. Jackson at ¶ 27. As long as we can
discern that the trial court engaged in the correct analysis and the record contains
evidence to support the findings, consecutive sentences will be upheld. Id.
{¶50} R.C. 2929.14(C)(4) requires the trial court to make three findings:
consecutive service is necessary to protect the public from future crime or
to punish the offender and that consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct and to the
danger the offender poses to the public, and if the court also finds any of
the following:
(a) The offender committed one or more of the multiple offenses while
the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised
Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or
more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the OHIO FIRST DISTRICT COURT OF APPEALS
16
courses of conduct adequately reflects the seriousness of the offender’s
conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
(Emphasis added.)
{¶51} In its sentencing entry, the court made all three findings. However, the
court failed to make all three findings at the sentencing hearing. It stated:
The rest of these terms will be served consecutive to each other, based on
your history and based on the fact that your conduct is serious and poses
a danger to the public. And the harm caused by two or more of these
offenses was so great or unusual no single prison term for any one of the
offenses committed as one or more course of conduct would adequately
reflect the seriousness of your conduct.
Mr. Marshall, I want to add, that you have a number of these type cases in
your history, quite a few. Plus, you went to prison for two years on a
weapons under just a few years ago, and then we have the same * * * I do
not take weapons lightly. I do not take weapons coupled with drugs
lightly.
{¶52} The court made two out of the three findings, but did not say anything
regarding proportionality. The most we can say regarding proportionality is that the
court considered Marshall’s conduct “serious.” Such a statement is insufficient for us
to conclude that the court made the second finding. See Jackson, 1st Dist. Hamilton
Nos. C-180245 and C-180246, 2019-Ohio-3299, at ¶ 32-34. Where the trial court OHIO FIRST DISTRICT COURT OF APPEALS
17
fails to make a required finding at a sentencing hearing for consecutive sentences
under R.C. 2929.14(C)(4), the proper remedy is to remand for a new hearing.
Jackson at ¶ 44.
Outcome: The sixth assignment of error is sustained with regard to the
imposition of consecutive sentences. In the appeal numbered C-190748, we vacate
the consecutive nature of the sentences and remand for a new sentencing hearing on
that issue alone. All other assignments of error are overruled and the remainder of
the trial court’s judgment is affirmed. The appeal numbered C-190758 is dismissed.
Judgment accordingly.
Plaintiff's Experts:
Defendant's Experts:
Comments: