[W]e conclude that sufficient evidence was presented to support a conviction for trafficking in marijuana.

 

State v. Mobley

2023 – Ohio – 2229

Ninth District Appellate Court

Summit County, Ohio

June 30, 2023

 

Joslyn is Charged and Convicted with Trafficking in Marijuana

Following a Wednesday May 29, 2019, traffic stop, Ms. Joslyn Mobley was indicted on one count of trafficking in marijuana in violation of O.R.C. §2925.03(A)(2), (C)(3), a felony of the fifth degree and one count of possession of marijuana, a fourth-degree misdemeanor. A forfeiture specification, related to $419.00 found during the stop, accompanied the trafficking charge. The second count was subsequently amended to a minor misdemeanor.

Ultimately, in March 2022, the trafficking charge and accompanying specification were tried to a jury and the minor misdemeanor was tried to the bench. The jury found Ms. Mobley guilty of the trafficking charge but found the money was not subject to forfeiture. The trial court found Ms. Mobley guilty of the possession charge. Ms. Mobley was sentenced to a year of community control with a reserved prison sentence of one year. The sentencing entry reflects a $250.00 fine as a sentence for the minor misdemeanor. The entry also states that two days of time served in the Summit County Jail would satisfy the $250.00 fine and costs associated with the case. Ms. Mobley moved to stay exaction of her sentence, which the trial court granted.

Joslyn Appealed

Ms. Mobley has appealed, raising four assignments of error for our review.  [Only one of the four errors will be reviewed in this article.]

Aggravated Trafficking In Drugs

O.R.C. §2925.03(A)(2) provides that: “[N]o person shall knowingly … [p]repare 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.”

Degrees of Culpability – Knowingly

O.R.C. §2901.22(B) provides that: A person acts knowingly, regardless of purpose, when the person is aware that the person’s conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when the person is aware that such circumstances probably exist. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person subjectively believes that there is a high probability of its existence and fails to make inquiry or acts with a conscious purpose to avoid learning the fact.

Distribute Case Law

Distribute means “to deal in, ship, transport, or deliver but does not include administering or dispensing a drug.” O.R.C. §2925.01(A); O.R.C. §3719.01(F)

Drug trafficking may be proven by circumstantial evidence.” State v. Lopez- Olmedo, 2022-Ohio-2817

Traffic Stop

Officer Max Bacher with the Macedonia Police Department was on patrol on May 29, 2019, when he noticed a silver Buick with windows that he believed were so darkly tinted that they violated Ohio law. Officer Bacher then initiated a traffic stop.

The Marijuana Discovery Begin

Ms. Mobley was the driver and there was also a front seat passenger. Officer Bacher approached the passenger side of the vehicle and immediately noticed an odor of marijuana coming from the vehicle. Officer Bacher testified that, when Ms. Mobley was questioned about the odor of marijuana, she seemed puzzled. Officer Bacher asked if there were any marijuana roaches in the ashtray. Ms. Mobley handed Officer Bacher the ashtray and there was a roach in it. Officer Bacher also noticed marijuana shake on the passenger door. Based on his findings, Officer Bacher requested a second officer to the scene as Officer Bacher planned to search the vehicle.

Joslyn’s Phone Rang and a Marijuana Sleight-of-Hand

Ms. Mobley’s phone rang and Officer Bacher allowed her to answer it while he was waiting for the second officer to arrive. Ms. Mobley went to retrieve her phone from the purse on the floor, but it seemed to be taking her a long period of time to do so. As Ms. Mobley was rummaging in her purse, the odor of marijuana became stronger. Officer Bacher asked Ms. Mobley what she was reaching for. Ms. Mobley closed her knees and pulled out a small, zippered purse that she put to her left hip. Ms. Mobley informed Officer Bacher that she was still reaching for her phone, but Officer Bacher testified that the phone was near the top of her large purse. Ms. Mobley then put the purse on top of her lap. Officer Bacher asked Ms. Mobley to hand him the purse several times, but Ms. Mobley ignored him.

Ms. Mobley and her Unnamed Passenger are Separated

Sergeant Michael Plesz then arrived on the scene. At that point, Ms. Mobley was asked to step out of the vehicle. As she did so, Ms. Mobley passed the zippered purse towards the passenger. The passenger did not take the purse. Ms. Mobley and the passenger were then placed in the back of separate police cars. Ms. Mobley was placed in Officer Bacher’s car and the passenger was put in Sergeant Plesz’s vehicle.

Vacuum Sealed Packages, Money and 110 Grams of Marijuana

The police then began to search the car. Inside Ms. Mobley’s purse there were multiple packages containing marijuana, some of which were vacuum sealed, and a digital scale, which Officer Bacher testified was used for weighing marijuana. Officer Bacher did not know whether the scale was operable. In addition, two smaller zippered purses were found; one containing $419 and another containing 42 empty small wax paper bags and one wax paper bag containing a small amount of marijuana. A pair of rubber gloves was found in the purse containing the wax paper bags. The currency consisted of one $100 bill, one $50 bill, ten $20 bills, three $10 bills, five $5 bills, and fourteen $1 bills. The small purse containing the money was found in the car; it was the purse Ms. Mobley was passing towards the passenger when Ms. Mobley was exiting the vehicle. The other purse with the wax paper bags was found inside Ms. Mobley’s large purse. Two of the vacuum sealed packages containing marijuana were still sealed and weighed 33 grams; the remaining two were partially opened and contained varying amounts of marijuana. In total, the packages containing marijuana weighed 110 grams, as weighed by the police.

How Probable Cause Begins

Officer Bacher described that quantity as a large amount; however, he acknowledged that it was possible that that amount could be for personal use. Office Bacher found it suspicious that Ms. Mobley was traveling with sealed bags, partially opened bags, the empty bags, and the scale. He testified that if she had just bought the marijuana for her own use, he would expect it to be just sealed bags that she was taking home.

Totality of the Circumstances

Officer Bacher initially indicated that there were no rolling papers or glass bowls for smoking the marijuana, although he later clarified that a couple rolling papers were located in the search. Nonetheless, he maintained that, based on the totality of the circumstances, which included some of the packages being vacuum sealed, the amount of cash present, the presence of the empty 42 small bags, and the digital scale, he believed that the marijuana was going to be packaged and redistributed. Ms. Mobley’s phone was also seized but no information related to trafficking was recovered from it.

Sergeant Plesz Describes Trafficking In Drugs

When asked to describe the types of supplies police look for in trafficking cases, Sergeant Plesz explained that “[W]hen people are breaking down larger quantities of drugs, they’re usually putting it into smaller packages. That way it can be redistributed.” With respect to the instant matter, Sergeant Plesz observed that, “[L]ooking at the [wax paper] packages here, especially having one of the packages of marijuana packaged in it, showing the larger amount that is broken down into these smaller packages for sale.”

Based on the amount of drugs found, the amount of money, and the presence of drug paraphernalia, Sergeant Plesz believed that the matter was a drug trafficking case. Sergeant Plesz noted that having the small denominations of money could then be used to make change for sales. Further, while Sergeant Plesz admitted that it was possible that the wax paper bags could be used to divvy up personal use marijuana, he also stated that, in his experience, it was not common to do so. Also, Sergeant Plesz did not believe that the quantity of marijuana Ms. Mobley had was for personal use. Sergeant Plesz found it unlikely that Ms. Mobley smoked an ounce a day, but acknowledged if she actually did then it could be for personal use.

Ms. Mobley Describes Her Marijuana Consumption as One Ounce Per Day

Ms. Mobley was asked about the marijuana and she indicated that she smoked about an ounce a day. Officer Bacher commented to Ms. Mobley that that was a lot of marijuana to smoke in a day. When asked about the currency, Ms. Mobley indicated that she was not working but sometimes did hair. Ms. Mobley was arrested and the passenger was allowed to leave the scene. The evidence found was put into Ms. Mobley’s large purse for transport to the station.

Both officers had dash-mounted cameras and body-worn microphones. The footage from both was admitted into evidence along with various photos.

The Evidence was Chemically Described as Marijuana

Erin Miller from Ohio Bureau of Criminal Investigation testified concerning testing she conducted on the suspected marijuana found in the vehicle. Ms. Miller testified that based on the definition of marijuana in Ohio before July 30, 2019, the plant matter found was marijuana. Ms. Miller indicated that beginning on July 30, 2019, Ohio began differentiating between hemp and marijuana. Hemp has a THC content of less than 0.3 percent. The marijuana was not tested to determine whether it qualified as hemp due to the timing of the offense. Ms. Miller testified that she was required to test based on the date of the offense, not the state of the law at the time of the testing. Absent the packaging the marijuana was in, the marijuana weighed a total of 78.90 grams.

Was the Wax Paper was for Condiments?

Both Ms. Mobley and the passenger testified for the defense. Ms. Mobley testified that she had numerous health problems at the time of the stop and that she was using marijuana to address her health issues. She indicated that she did not have a medical marijuana card because doing so would interfere with her ability to continue to pursue her career in social work. At the time, Ms. Mobley did hair and also delivered food, although she did not inform the officers that she delivered food. Ms. Mobley testified that she had hair rollers in the back of the car and that her clients often paid in cash. She also explained that she had a lot of the materials for delivering and packaging the food in her back seat, including Styrofoam containers, foil, plastic wrap, and gloves. Ms. Mobley used the wax paper bags to store condiments to give to customers with their food orders. Ms. Mobley stated that she would receive cash tips.

Ms. Mobley, who Testified She Consumes Once of Marijuana Everyday, also Testified she had No Idea Where the Digital Scale Originated and the Officers Planted Evidence

Ms. Mobley testified that, on May 29, 2019, she was going to check on her goddaughter when she was pulled over. Ms. Mobley asserted that the air conditioning in her vehicle was not working at the time, it was a warm day, and so her windows would have been down. Accordingly, she did not think that the officer could see the tint status of her front windows. She believed that she was stopped because the officer thought that her passenger was an African American man, because the passenger was a woman with a short haircut. Ms. Mobley maintained that the officer focused on questioning the passenger instead of Ms. Mobley. Ms. Mobley asserted that parts of the video of the stop were altered or cut out. She also maintained that the police planted evidence which was evidenced by the police not looking through what they found in the car in view of the dash camera. Ms. Mobley indicated that the officers took things in her car and packaged them in a way to look like she was trafficking. Ms. Mobley asserted that she did not know where the digital scale came from, it was not hers, and that it was put in her purse so that she would be charged with a felony. Ms. Mobley also indicated that the gloves and the wax paper bags were not in her purse and were instead in the back with food delivery materials. She believed that the officers filled one of the wax paper bags with marijuana to further implicate her.

Ms. Mobley testified that the marijuana was for her own personal use and that she was not preparing it for distribution and was not distributing or selling it.

The Unnamed Passenger Confirmed Ms. Mobley’s Testimony

The passenger also testified at trial. The passenger confirmed that the front windows were down and that she felt that the officer spent a lot of time directing questions at her instead of Ms. Mobley. The passenger described the officer as being condescending. The passenger verified that Ms. Mobley was involved in food deliveries and had items related to that in the car. The passenger denied using marijuana at that time and did not have any on the day of the stop. The passenger testified that her only belongings that were with her were her phone and her keys.

The Ninth District Appellate Court Disbelieved Ms. Mobley’s Testimony

 Viewing the evidence in a light most favorable to the State, we conclude that sufficient evidence was presented to support a conviction for trafficking in marijuana. Here, there was evidence that Ms. Mobley possessed what was described by police as a large amount of marijuana. In fact, Sergeant Plesz testified that he did not believe that the amount Ms. Mobley had was for personal use. In addition, the way that the marijuana was packaged also raised Officer Plesz’s concerns that the marijuana was for repackaging and distribution and not personal use. In addition to the marijuana itself, police also found numerous wax paper bags, including one which contained a small amount of marijuana. Further, a digital scale and a significant amount of cash in numerous denominations were recovered from Ms. Mobley’s purse. Both Officer Bacher and Sergeant Plesz discussed how the combination of items found in Ms. Mobley’s belongings led them to believe that Ms. Mobley was engaged in trafficking marijuana.

Case Law Supports Ms. Mobley’s Wax Paper was for Packaging Narcotics not Door Dash Condiments

Given the evidence before this Court, we cannot say that Ms. Mobley has demonstrated that the trial court erred in denying her Crim.R. 29 motion or that the verdict was based upon insufficient evidence. See Lopez-Olmedo, 2022-Ohio-2817, (noting that “the convergence of illegal drugs, drug paraphernalia (including baggies), and large sums of cash permit a reasonable inference that a person was preparing drugs for shipment[]”); State v. Haydon, 9th Dist. Summit No. 27737, 2016-Ohio-4683. While the evidence was largely circumstantial, as noted above, “[D]rug trafficking may be proven by circumstantial evidence.Lopez-Olmedo, 2022-Ohio-2817. Moreover, “[B]ecause direct evidence of mental state is not available, proof of a culpable mental state must be derived from circumstantial evidence.” State v. Myers, 2022-Ohio-991. 

Ms. Mobley’s first assignment of error is overruled.

Information for this article was obtained from State v. Mobley, 2023 – Ohio – 2229.

State v. Mobley, 2023 – Ohio – 2229 was issued by the Ninth District Appellate Court on June 30, 2023 and is binding in the following Ohio Counties: Lorain, Medina, Summit and Wayne.

Lessons Learned:

  1. Totality of the Circumstances – This case is a close call to prove that Ms. Mobley had intent to sell in accordance with O.R.C. §2925.03 Aggravated Trafficking. The reason is that there was no direct evidence she had marijuana packaged for sale.  There was a substantive amount of circumstantial evidence that rose to the Totality of the Circumstances but nothing specific.  What is interesting is that there is a reference to the case that Ms. Mobley’s phone was searched and no evidence of trafficking was discovered “Ms. Mobley’s phone was also seized but no information related to trafficking was recovered from it.”.  This fact alone underscores the importance of the observations and documentation of the officers at scene.
  2. Pre-Sent Arms! Macedonia Police Officer Max Bacher should be highly commended for stopping Ms. Mobley for the minor infraction of tinted windows and developing enough probable cause to charge, convict and with the strong help of prosecutors uphold the conviction by the Ninth District Appellate Court! Officer Bacher had keen observations that he articulated in his paperwork and at trial. Some of the small movements by Ms. Mobley when viewed in and of itself offered little, but when contrasted all together, rose to the level of probable cause.  For example;  “Officer Bacher asked Ms. Mobley what she was reaching for. Ms. Mobley closed her knees and pulled out a small, zippered purse that she put to her left hip. Ms. Mobley informed Officer Bacher that she was still reaching for her phone, but Officer Bacher testified that the phone was near the top of her large purse. Ms. Mobley then put the purse on top of her lap. Officer Bacher asked Ms. Mobley to hand him the purse several times, but Ms. Mobley ignored him.”.  Well done Officer Bacher!

 

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