From this evidence, we find the jury could find [Uncle] Cortney Curtis possessed the cocaine and was transporting the cocaine for sale at the time the vehicle was stopped.
State v. Curtis
2023 – Ohio – 1651
Fifth District Appellate Court
Stark County, Ohio
May 15, 2023
On May 23, 2021, Agent Mark McMurtry of the FBI received a tip someone might be trying to distribute cocaine in Canton, Ohio. Agent McMurtry is the coordinator of the FBI Safe Streets Task Force, which combines federal, state and local law enforcement in Stark County to investigate drug trafficking. Agent McMurtry contacted other officers in the task force.
Pre-Textual Stop
Canton Police Officer Brandon Schmidt was assigned to the task force. Acting on Agent McMurtry’s tip, the task force located the car in question parked in Plain Township. When the vehicle began driving south toward Canton, Officer Schmidt followed the vehicle. He observed the vehicle change lanes without using a turn signal. Officer Schmidt was in plain clothes and driving an unmarked car, so he did not stop the car, but instead radioed for assistance.
Officer Anthony Angelo of the Canton Police Department stopped the vehicle after hearing the radio alert. Mr. Cortney Curtis was driving the vehicle. When the vehicle was stopped by police, Mr. Cortney Curtis ran from the car, and was apprehended by officers. As he fled, he dropped his cell phone, which was recovered by police. Two other passengers were inside the car: Mr. Cortney Curtis’s co-defendant and biological nephew, Mr. Alton Curtis was seated in the front passenger seat, and another man was seated in the back seat.
Canine Boss Sniffs a Felony
Officers called for a canine unit to conduct a sniff of the car. Officer David Samuels and his dog Boss responded to the call. Boss alerted on the car. Officers then searched the car and located a black backpack on the back seat which contained about a kilogram of a packaged product. Officers found an assault rifle under a towel in the backseat. The substance in the package found in the backpack was later determined to be cocaine. A cell phone, later determined to belong to Mr. Alton Curtis, was also recovered from the passenger side dash of the vehicle. A veterinarian bill and a medical bill in Mr. Cortney Curtis’s name were also found in the vehicle.
Who Packed Alton’s Cocaine?
Agent McMurtry and Officer Schmidt interviewed Mr. Alton Curtis at the Canton Police Department. Although the officers believed recording equipment was operating during the interview, they later discovered the equipment was not functioning properly. However, both officers took notes on the interview. During the interview, Mr. Alton Curtis admitted he traveled from Houston, Texas to Ohio for the purpose of bringing narcotics to Canton. Mr. Alton Curtis told officers he had two kilograms of cocaine. He admitted the backpack belonged to him. Mr. Alton Curtis admitted the cocaine in the backpack was the cocaine he brought from Houston, but denied putting it in the backpack. He denied any knowledge there was a gun in the car. Mr. Alton Curtis told police where they could locate the second kilogram of cocaine in his vehicle.
Cannot Interview Suspects who are Laying on the Floor Crying
Officers were unable to interview Mr. Cortney Curtis because he became too emotional, laying on the floor and crying. Mr. Cortney Curtis lamented his life was over, and he had screwed up.
A Felonious Ride-a-Long
Officers determined the vehicle Mr. Cortney Curtis was driving was registered to Mr. Cortney Curtis’s girlfriend. The third man in the vehicle told officers he was at Mr. Cortney Curtis’s house spending time there before Alton arrived, then went along with them in the car. He was not criminally charged.
Officers obtained a search warrant for Mr. Cortney Curtis’s home and for the car Alton drove from Texas to Ohio. Officers were unable to locate the second kilogram of cocaine in Alton’s car. In Mr. Cortney Curtis’s house officers found a second firearm, as well as a digital scale of a type often used in drug trafficking.
The next day, officers again talked to Mr. Alton Curtis at the Stark County Jail. Mr. Alton Curtis gave consent to search his cell phone which was found in the vehicle and gave the officers the phone number and the password for the phone. Both Mr. Alton Curtis phone and the phone Mr. Cortney Curtis dropped when he fled the scene were turned over to the Jackson Police Department for extraction.
How to Turn Text Messages into Evidence
Can Referring to a Co-Conspirator in a Text as Unc Imply mean he is Your Uncle?
Detective Matt Demyan of the Jackson Township Police Department performed data extractions on the two cell phones. He placed the extracted data from the phones on an external zip drive, and generated reports. Officer Schmidt received the zip drive. He found text messages which matched between the two phones. The messages contained language which Officer Schmidt, in his experience with the task force, found related to discussion of buying and selling cocaine. In some of the messages, Mr. Alton Curtis referred to Mr. Cortney Curtis as “Unc.” The messages included discussion of the street value of cocaine, the amount of cocaine Mr. Alton Curtis would bring from Texas, and how much cocaine they could sell. Videos attached to Mr. Alton Curtis’ text messages showed the kilos of cocaine he referred to in his messages.
Mr. Cortney Curtis was indicted by the Stark County Grand Jury with trafficking in cocaine and possession of cocaine, each with major drug offender specifications, and having a weapon under disability. The case proceeded to a joint jury trial with Mr. Alton Curtis in the Stark County Common Pleas Court. The jury found Mr. Cortney Curtis guilty of trafficking in cocaine and possession of cocaine, with the major drug offender specifications, but not guilty of having a weapon under disability. The trial court convicted Mr. Cortney Curtis in accordance with the jury’s verdict. The trial court found the convictions merged, and the State elected to have Mr. Cortney Curtis sentenced for trafficking in cocaine. The trial court sentenced Mr. Cortney Curtis to an indeterminate term of eleven to sixteen-and-a-half years’ incarceration.
Mr. Cortney Curtis appealed his conviction challenging that the phone he dropped was his own phone and
Appeal
Mr. Cortney Curtis argues the judgment is against the manifest weight of the evidence, and further the State did not present sufficient evidence to support the conviction.
Mr. Cortney Curtis was convicted of trafficking in cocaine in violation of O.R.C. §2925.03(A):
(A) No person shall knowingly do any of the following:
(1) Sell or offer to sell a controlled substance or a controlled substance analog;
(2) 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 substance or a controlled substance analog is intended for sale or resale by the offender or another person.
Mr. Cortney Curtis was also convicted of possession of cocaine in violation of O.R.C. §2925.11(A), which provides, “No person shall knowingly obtain, possess, or use a controlled substance or a controlled substance analog.”
Mr. Cortney Curtis argues there was no evidence to support a finding he knowingly transported the cocaine, knowing or having reason to believe the cocaine was intended for sale, and further there was no evidence presented to demonstrate he possessed the cocaine. He argues the mere presence of the cocaine in the vehicle he was driving was insufficient to establish possession, particularly as Mr. Alton Curtis admitted ownership of the backpack and the cocaine. Mr. Cortney Curtis argues he was not implicated by Mr. Alton Curtis. While he concedes the text messages would provide some evidence to support the convictions, he argues there was no evidence to connect him to the cell phone, nor was there any evidence to demonstrate he was the person sending and receiving the messages concerning the transport and sale of cocaine. While Alton’s messages used the identifier “Unc,” he argues there was no evidence Mr. Cortney Curtis and Mr. Alton Curtis were uncle and nephew.
Constructive Possession Doctrine
Established Case Law
In State v. Davis 2022 – Ohio – 577, Davis argued his conviction of possession of drugs was against the manifest weight of the evidence because there was another passenger in the vehicle in which the drugs were found, and there was no evidence he owned the drugs or the car. This Court found the conviction was not against the manifest weight of the evidence, because there was evidence of a Facebook post from which the jury could infer Davis was the owner of the vehicle. Because of this, Davis had dominion and control over the place in which the contraband was found. The presence of a female passenger in the vehicle did not prohibit the jury from finding Davis constructively possessed the cocaine because multiple people may constructively possess an item simultaneously.
Similar to Davis, in the instant case the State presented evidence to establish Mr. Cortney Curtis had dominion and control of the vehicle in which the cocaine was found. The State presented evidence the car was registered to Mr. Cortney Curtis’s girlfriend. A veterinarian bill and a medical bill in Mr. Cortney Curtis’s name were found in the vehicle, and Mr. Cortney Curtis was driving the vehicle. Officers testified the backpack containing the cocaine was in close proximity to Mr. Cortney Curtis. From this evidence, the jury could infer Mr. Cortney Curtis constructively possessed the cocaine.
Did Cortney Lay on the Floor and Cry My Life Is Over because he was Going to be Charged with No Operators License … OR … because he was Trafficking a Kilo of Cocaine?
In addition, the State presented evidence Mr. Cortney Curtis fled the scene as soon as the vehicle was stopped. While Mr. Cortney Curtis told officers he ran because he did not have an operator’s license, the jury could find he fled because of knowledge of the contraband in the backseat. Further, Agent McMurty and Officer Schmidt testified when they attempted to interview Mr. Cortney Curtis, he became emotional, laid on the floor, cried, and lamented his life was over and he screwed up, from which the jury could infer Mr. Cortney Curtis had knowledge of the cocaine in the vehicle.
Mr. Curtis Inadvertently Drops the Prosecution’s Evidence
Officer Angelo testified as Mr. Cortney Curtis ran from the vehicle, a cell phone fell from Mr. Cortney Curtis. Officer Angelo picked up the cell phone and turned it over to the FBI task force. The officer identified the phone in court as the phone which he picked up after it fell from Mr. Cortney Curtis. Detective Demyan testified the phone, which he identified in court, was given to him by the task force for data extraction.
Although Mr. Cortney Curtis argues there was no evidence he was Alton’s uncle, Det. Schmidt testified when interviewing Alton, “Alton indicated to us that he had came from Houston, Texas up to his uncle’s house. And he brought 2 kilo’s of cocaine with him.” While the extracted messages included an Apple identifier and not Mr. Cortney Curtis’s name, we find from the evidence the cell phone fell from his body as he ran and the identifier of “unc” in the messages between Mr. Alton Curtis’ phone and the cell phone which fell from Mr. Cortney Curtis’s person, the jury could infer the cell phone belonged to Mr. Cortney Curtis, and he was the person using the cell phone to communicate with Alton.
Totality of the Circumstances
Officer Schmidt testified as to numerous text messages communicated between the two cell phones, providing context and definition as to some of the language used in the messages based on his knowledge investigating drug trafficking. He testified the messages discussed the buying and selling of cocaine, the street value of cocaine, the amount of cocaine Mr. Alton Curtis would bring from Texas, and how much cocaine they could sell. A video attached to a text message sent by Mr. Alton Curtis showed a kilogram of cocaine. From this evidence, we find the jury could find Mr. Cortney Curtis possessed the cocaine and was transporting the cocaine for sale at the time the vehicle was stopped.
Holding
We find the State presented sufficient evidence to support the convictions of trafficking and possession of drugs, and the jury did not lose its way in finding Mr. Cortney Curtis guilty of both charges.
The first and second assignments of error are overruled. The judgment of the Stark County Common Pleas Court is affirmed.
Information for this article was obtained from State v. Curtis, 2023 – Ohio – 1651.
This case was issued by the Fifth District Appellate Court and is only binding in the following Ohio Counties: Ashland, Coshocton, Delaware, Fairfield, Guernsey, Holmes, Knox, Licking, Morgan, Morrow, Muskingum, Perry, Richland, Stark and Tuscarawas.
Lessons Learned:
- Totality-of-the-Circumstances – Mr. Cortney Curtis’ legal arguments were feeble when contrasted with facts. Cortney Curtis traveled from Houston, Texas with two kilos of cocaine to sell with his nephew in the Canton area. When Mr. Cortney Curtis fled from the traffic stop, he dropped his cell phone. The lawful search of the phone revealed text messages with his nephew and co-conspirator Mr. Alton Curtis. The content of the text messages exposed a conspiracy to transport cocaine from Houston, Texas to Canton, Ohio. The text messages, headlong flight from the traffic stop and the kilo of cocaine inside the car, is a textbook example of Totality-of-the-Circumstances.
- Constructive Possession – Mr. Cortney Curtis claimed he did not possess the kilo of cocaine inside the vehicle because his nephew, Mr. Alton Curtis, claimed the cocaine was his. Two people can both be in possession of an object at the same time. The Supreme Court of Ohio established a two-part test for Constructive Possession in State v. Hankerson, 70 Ohio St.2d 87 (1982) 1) When an individual knowingly exercises dominion and control over and object, even though that object may not be within his immediate physical control; and 2) The defendant was conscious of the object’s presence. In this case, both Mr. Cortney Curtis and Mr. Alton Curtis possessed the kilo of cocaine lawfully discovered in the black backpack.
- Pre-sent Arms! Agent Mark McMurtry, Officer Brandon Schmidt, Officer Anthony Angelo, Officer David Samuels and his Canine Boss, should all be highly commended for working together in a Fourth Amendment symphony. Well done team!
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